OVER A COFFEE : Wrong legislative priorities — Dr Haider Shah
Sadly, for the government, the most pressing and burning issues in the country are contempt of court and dual nationality of its MPs
Haste often arouses suspicions about even well intentioned measures. In the case of the hurried legislation on contempt of court, however, reservations abound. These are even shared by some of the big brains of the ruling party as they were not consulted when the new law was drafted.
A scholar of jurisprudence dubs contempt of court as ‘Proteus’, who was a mythological sea god capable of changing shape at will, much as the notion of contempt assumes an ‘almost infinite diversity of forms’. Lord Diplock explains the essence of the law of contempt of court by emphasising that various forms of contempt “involve an interference with the due administration of justice, either in a particular case or more generally, as a continuing process”. According to Diplock, “It is justice itself that is flouted by contempt of court, not the individual court or judge who is attempting to administer it.”
The contempt of court principle, therefore, is universally regarded as one of the fundamental cornerstones of all legal systems. In the British legal system, the law relating to contempt of court is found in the Contempt of Court Act 1981 and in common law. The Act was passed in response to the decision of the European Court of Human Rights, which found in a newspaper’s case that the English contempt law contravened Article 10 of the Convention. The statutory law, therefore, intended to give greater protection to freedom of speech as under common law courts exercised unlimited powers. In mature democracies, the central theme of the contempt of court-related debate is about establishing a balance between freedom of expression and preserving the integrity of jury-led trials in the courts. The wilful contempt of judges in the court is dealt with by common law and judges can decide such cases summarily themselves.
The context of Pakistan is quite different as here judges have been forced to take fresh oaths and courtrooms attacked by unruly mobs, where judges have been dismissed and even put under house arrest. A new Pakistan can never be created unless there is a renewed commitment and consensus over treating the judiciary with greater respect. Unfortunately, a few dollars stashed in some foreign country are plaguing the entire political system of the country.
Pakistan is faced with many challenges that need attention of the highest order from both government and legislature. Terrorists are released from the courts as the ordinary laws of evidence fail to deal with the demands of special circumstances created by modern day terrorism. In other countries, special laws were enacted to help law enforcement agencies deal effectively with the new menace. Our government has taken little interest in addressing the legal challenges in order to improve the chances of success in our long drawn battle with jihadi terrorists. Another major area of concern is the widespread corruption and here, lack of political will to legislate is quite conspicuous. No serious effort has been made by government to come up with an accountability law and whenever reminded, it offers a very flimsy pretext for not doing so. In the case of women’s rights, the domestic violence bill was put in cold storage as the government dragged its feet on it and did not rush it through like the contempt of court law. There is a consensus among civil society groups and human rights activists that the blasphemy laws of General Zia need reappraisal so that their misuse is minimised. But even after the lapse of four years, little progress has been made on this issue of highest importance. Sadly, for the government, the most pressing and burning issues in the country are contempt of court and dual nationality of its MPs.
Unlike the British law of contempt, which had its origins in common law, Pakistani law derives its basis from the constitution itself. Contempt of court has been defined by Article 204 of the constitution and authorises the Supreme Court or a High Court to punish any person who:
(a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court;
(b) scandalises the Court or otherwise does anything that tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt;
(c) does anything that tends to prejudice the determination of a matter pending before the Court; or
(d) does any other thing which, by law, constitutes contempt of the Court.
Any law passed by parliament, which directly or indirectly breaches the provisions and spirit of this Article, can be declared void by the honourable court. Some prominent constitutional experts have already spotted certain weaknesses in the hurriedly passed law. There is one very obvious objection. Article 204 is non-discriminatory in empowering the courts to punish any person found guilty of the offence of contempt. However, the new law tries to meddle with this constitutional power by relying on Article 248 of the constitution where the president, prime minister, federal ministers and chief ministers have been provided immunity from judicial scrutiny of their official actions. Immunity is no longer a reasonable ground of discrimination that flies in the face of fundamental right guaranteed under Article 25 (1), which states: “All citizens are equal before law and are entitled to equal protection of law.”
The government should have used its executive and legislative powers in dealing with the two-headed monster of corruption and terrorism. At the moment, it is wasting its energies and image by pursuing unwarranted priorities.
The writer teaches public policy in the UK and is the founding member of the Rationalist Society of Pakistan. He can be reached at email@example.com