A rethinking of the contempt law and the contempt
philosophy is required. The government’s attempt to reform the
legislation has been a thoroughly incompetent exercise, aimed only at
safeguarding its political interests at the expense of molesting the law
When pushed into a corner, people frequently do stupid things. With a few balls remaining and a huge total to chase in a cricket match, the batsmen end up slogging foolishly. Having lost all his earnings, the gambler bets the house on the last hand. It turns out that governments are no different from people, in this regard.
With an abominable record of corrupt governance, a combative Supreme Court, a prime minister dismissed for contempt, and another one facing similar prospects, the government has resorted (as a last measure) to absolute ridiculousness. In a move that is hard to explain through law or logic, the federal government has passed the Contempt of Court Act, 2012 (hereinafter “Act”).
Harsh? Perhaps. But looking at the concerned Act in some detail will vindicate this statement on two fronts: legal and principle.
From a purely legalistic perspective, the Act suffers from several deficiencies. To begin with, section 3 of the Act, having collapsed the distinctions between ‘civil’, ‘criminal’ and ‘judicial’ contempt (fair enough), stipulates that actions of a “public office holder” in “exercise of powers and performance of functions” (under Article 248(1) of the Constitution) shall “not amount to commission of contempt of court”. In simpler words, the president, the prime minister, the chief ministers, the governors along with federal and provincial cabinet members, while exercising the ‘powers and functions’ of their office, shall not be liable for contempt of court. And in this regard, the protection is sought through Article 248(1), which states that these functionaries “shall not be answerable to any court for the exercise of powers and performance of functions of their respective offices.”
The fact that protection of Article 248(1) is rarely invoked is instructive; the purpose of this provision in the Constitution is to ensure that judicial proceedings against the federal or provincial governments do not spill over to individually target the public-officials in charge of carrying out the executive authority.
Away from this, the Act, by carving out a category of individuals who are ‘above’ the law of contempt, arguably violates Article 25 of the Constitution (Discrimination). Furthermore, it also revolts against Article 5(2) of the Constitution, which makes “obedience to the Constitution and law” (including judgments of the court) an “inviolable” duty of “every citizen” (including the prime minister and his cabinet).
And perhaps most pertinently, the new Contempt of Court Act vitiates the spirit of Article 204 (the very Article under which it has been drafted), which gives the court the power to punish “any person” (with no exceptions) who commits contempt. In this regard, the Act has already been challenged before the apex court, and the nation awaits a declarative judicial pronouncement.
Perhaps more nefariously, however, the Act indulges in another (procedural) exercise: it takes pains in constructing a prolonged process of appeal against a contempt verdict, suspending the order during the pendency, and requiring the constitution of a ‘larger bench’ in certain circumstances. All this has been drafted with one goal in mind: if the legislation survives the judicial review, it will ensure that the present PPP regime, and its prime minister, limp through a protracted court process (having not written the Swiss letter), to somehow make it through the tail-end of the parliament’s term.
Turning to the ‘principles’ involved (in sad realisation of the fact that principles, unfortunately, do not play much part in our governance or jurisprudence), the PPP must be castigated for picking convenience over ideology, and marring the fabric of law in the process. By drafting a contempt law that attempts to immunise a select category of individuals, the legislature has demonstrated that defence of personalities is more sacred to the government than upholding the equal protection of law (in pursuit of a classless society).
Furthermore, our able parliament has also established that completing its term and saving the current prime minister from disqualification, through employing a protracted and unwieldy contempt procedure, is paramount to our government, even it comes at the cost of molesting the law and sacrificing its sanctity.
While on the point, it is perhaps useful to turn our attention to what is the ideology behind ‘contempt of court’, and why has it become the seed of such controversy in our land?
Outside the realm of the legal fraternity, the contempt of court law is perhaps the most recognised statutory instrument in our land, next to the Constitution. Featuring in prime minister’s disqualification, Malik Riaz’s press conference, charges against NAB and FIA chief, the case against Babar Awan… the contempt of court law has undeniably played a starring (hypersensitive?) role in our recent jurisprudence and national dialogue.
Without delving into the legality of these individual cases, it must be asked: is contempt of court merely a tool, at the disposal of the judiciary, to defend its institutional sovereignty? Is it an instrument in the hands of the judges through which they can haul-in any individual who voices dissent or questions them? Or is there a nobler ethos to the law?
The object of the law, as established by numerous authorities, it seems is two-fold: ensuring enforcement of court orders (not with the view of asserting a judge’s supremacy over others, but instead in the belief that enforcement of impartial judicial verdicts is indispensable to a free and fair society), and instilling confidence in the legal process (not in any individual judge) so as to ensure that every litigant is afforded fair and unprejudiced justice. In this spirit, the contempt proceedings have to be divorced from the personality of individual judges (who must be accountable, even critiqued, for their personal conduct).
It would be a fallacy to believe that dignity of the court can be ‘enforced’ through contempt law. Vindication of the court’s dignity (or that of any individual judge) emanates from the impartiality of its pronouncements, and not the threat of contempt proceedings.
A rethinking of the contempt law and (more importantly) the contempt philosophy is required. The government’s attempt to reform the legislation has been a thoroughly incompetent exercise, aimed only at safeguarding its political interests at the expense of molesting the law.
The legality of the Act itself is pending before the Supreme Court. As the honorable judges decide the fate of this particular legislation, it might also be beneficial for them to take this opportunity and review their approach to the doctrine of contempt, with the aim of putting the sanctity of our constitutional structure above the impulse of personal vindication.