People, in general, have a tendency to be complacent, to roll with the punches as they say in order to get by and get along. Well, almost always until stark reality, like a ton of bricks, hits them in the face. So it seems was the case with our people taking the restraint, objectivity and balance of our judiciary for granted until the Supreme Court’s (SC) order to schedule the presidential elections and the accusation on Imran Khan of contempt of court woke them from their slumber.
Unfortunately, the Pakistani constitution is a badly drafted document that contains anomalies, contradictions, and obsolete, antiquated laws not found in other constitutions of the world. Examples of two such antiquated laws: the notorious suo motu (Article 184 (c) (3) and contempt of court (Article 204 (2)(b)) Articles, which are the source of the present judicial overreach.
Firstly, the contempt of court law. What I am going to say is not ‘ridiculing’ the judiciary in any way; the judiciary with its impact on the people and the country is too serious a matter to be ridiculed. This is an old-fashioned exercise of that most fundamental of human rights, the right of free expression.
The origins of the decadent and obsolete ‘contempt of court’ law as it is written in our constitution that prohibits ridiculing or criticising the judiciary dates back to British colonial days, when the British rulers of their colonies, for the sake of consolidation of their empire, thought fit to ban the natives from making fun of their kangaroo courts.
Ever since the beginning of the modern era with its cardinal principle of the rule of law, freedom of speech has become the most cherished and undisputed right of the people. In the words of Justice Brennan of the US Supreme Court in the landmark freedom of speech case of The New York Times vs Sullivan who ruled: “It is a prized privilege to speak one’s mind, although not always in good taste, on all public institutions.” That includes the judiciary.
To suggest that a court in this modern, democratic day and age would use its contempt power to muffle the mouths of free citizens who choose to criticise the judges outside the court is simply preposterous. The judges are supposed to protect and not prevent free speech.
Nowadays when the matter of contempt of court comes up in a democratic country it is either in the context of a judge invoking his or her contempt powers to punish a principled journalist or a stubborn witness in the courtroom for not disclosing the source of reporting or testimony. Or it is a judge using contempt to discipline the errant behaviour of a litigant or other person in the courtroom in order to maintain the decorum or dignity of the court proceedings. Or it is used to hold in contempt one of the actual parties in a case for not abiding by the court’s decision.
Other than these three narrow, specific situations, the contempt powers are never used by the judiciary to violate or abridge the all-important freedom of speech guaranteed by our constitution through censoring criticism of the judiciary outside the four walls of the courtroom.
To have a law that prohibits ‘ridicule’ of the judiciary is ridiculous itself.
Secondly, something must be said about the equally antiquated law of suo motu jurisdiction of Article 184(c)(3) of our constitution, another relic of the fossilised British Empire. There is no question that the judiciary has employed this law as a one-size-fits-all tool to interfere, subvert and usurp the functions of the executive and legislative branches of our system of government on the pretext of ‘matters of public importance’.
From fixing the price of petrol to transferring civil servants to conducting inquiries to disqualifying a democratically-elected prime minister of the country, a function expressly and exclusively reserved for the National Assembly and the Election Commission of Pakistan, the honourable Chief Justice (CJY has become the country’s de facto chief executive, president, Speaker of Parliament, chief of NAB, police, PEMRA, FIA, FC, Federal Ombudsman office, Army, Auditor General office, banks and other institutions of the country, all rolled into one — with one difference. The honourable CJ, unlike all these officials, is answerable to no one and accountable to no one.
As I have written before, in my humble opinion, for the reasons highlighted above, these twin mordacious provisions of our constitution, Article 184 (c) and Article 204(2)(b) that irresponsibly and indulgently bestows such illimitable powers on our judiciary, with their huge potential for abuse, must be immediately scrapped and discarded in the dustbin of history.
I realise, of course, that the repeal of these suo motu and contempt laws may not usher in a trustworthy, efficient, clean and responsive system of justice since that would also require judges of unassailable integrity, indubitable honesty, acknowledged legal scholarship and sound mind. However, a beginning has to be made and such an intrepid action seems to be a good place to start.
It is time to save the judiciary from itself.
The writer is an American-based corporate attorney, author and independent analyst