|The Contempt of Court Law 2012 is a clear mockery of democracy and rule of law. This law, like previous bad laws before it, including the NRO, is once again proof that democratic values, accountability and rule
of law are concepts alien to Pakistan. It seems another constitutional crisis is brewing.|
Every day we hear PPP parliamentarians stating on TV that parliament is the supreme authority, since it possesses powers of lawmaking. Notwithstanding the law-making role of parliament, it is the judiciary that interprets the law. The institutions have been so weak in the past 64 years, the martial laws being one of the reasons for it, that today the nation is confused about the actual roles of individual institutions.
Lawmaking is for the welfare of a nation. However, the Contempt of Court Law is a legislation which intends to protect the ruling elite and their interests, rather than benefiting the common person. Is that what parliaments are for? Therefore, can Pakistan really claim to be a democracy in the real sense?
This law gives blanket immunity to the president and a range of other people from contempt proceedings by courts, enabling them to refuse
to obey the orders of the Supreme Court in their official capacities. In a society where officials can pick and choose which court rulings they would obey or disobay, can there be respect for the authority of the Supreme Court?
Today the Supreme Court is the most popular institution in Pakistan because it is trying to protect the fundamental rights of the common man. By passing this bill the ruling elite has attempted to make the judiciary toothless.
In any common-law jurisdiction contempt of court laws protect judges and the judiciary from direct or indirect attacks. The purpose behind such a law is to prevent the undermining of public confidence in the administration of justice. Article 3 (vii) of the recently passed bill declares that no statement made in good faith and in temperate language for initiation of action, or in the course of disciplinary proceeding against a judge, can amount to contempt of court.
The question: is who will decide
what are reasonable language and good faith? In England, Justice Wilmot stated in 1765 that undue criticism of judges excites in people’s minds dissatisfaction with all judicial determination, and disposes people to disobey laws. Whenever people’s allegiances to laws is so fundamentally shaken, he said, the result is a most dangerous obstruction of justice. In Australia (Gallagher v Durack, 1983), the High Court, explaining the rationale behind the contempt of court laws, declared that the authority of law rests on public confidence and that this confidence is important to the stability of society. It went on to say that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts and judges.
It should be remembered that, unlike politicians, judges do not have a forum where they can go and defend themselves against any kind of criticism. Any response or statement from judges in defence of their
actions would be liable to make them controversial and biased in the public’s mind. It is therefore very important that we protect courts and judges from this kind of attacks.
Surely, the Contempt of Court Law 2012 has divided the Pakistani nation into two sections – one which is above the law and the other which must accept the authority of the law, as it is interpreted by the first section, on pain of punishment. This is in clear violation of Article 25 of the Constitution.
It is a common complaint that our elite, whether civilian or military, have the freedom to rule in a situation where they themselves are not accountable to anyone. Therefore, they cannot easily accept an independent judiciary because it requires them to stay within constitutional limits.
Nevertheless, in the present situation where the independence of the judiciary has been restored, the Pakistani nation is no longer prepared to accept legal double standards.
Pakistanis are sick and tired of power games being played by the corrupt in Pakistan. Our leader must remember St Augustine’s statement that an unjust law is no law at all.
Of course, parliament is the legislative branch of the country. But this elected institution does not have the right to make laws which contravene the fundamental principles of the constitution. Laws which undermine the constitution have been declared null and void by countries like the US and Britain and the same must happen in Pakistan. Chief justices like Lord Denning of England and John Marshall of the US never hesitated to act firmly to protect fundamental rights by opposing bad laws. It is only because of this fact that these countries are seen as great models of democracy in the world.
As for this criticism as to what everyday problems of the common Pakistani have to do with this new law or whether the corruption scandals have a direct impact on their lives, the answer
is simple. The ongoing corruption scandals, the Swiss case, the contempt law and independence of the judiciary have a direct impact on people’s lives. If we take a detailed approach to our problems, we can easily see that the root cause of all our problems is two-fold. Firstly, there is no rule of law, as a result of which there is virtual anarchy in Pakistani society. The culprit knows that he can easily get away with crime because he has money in his pocket and has support of influential political and other elements. Due to the absence of rule of law and accountability there is growing unemployment, continuing lack of education, injustice, lack of public order and security.
Secondly, institutions in Pakistan are not strong enough to protect the common man. An ordinary citizen can have no hope of assistance from public institutions.
As a result of the lack of trust between institutions and citizens, our society appears to be heading
towards a state of civil war. In such a grim scenario the only ray of hope is the Supreme Court of Pakistan. Critics often argue that the judiciary has not been able to make any difference at the grassroots level and people, at large, are still without justice.
The question is: does our elite leave time for the courts to make long-term judicial policies for the welfare of the nation, let alone the implementation of these policies? The court has been placed in a situation where it must constantly defend itself from attacks from different ends while it does its job. The contempt law is another such attack.
What we all need to remember is that in a largely illiterate society like ours any diminution of the authority of the courts and respect for law is an invitation to chaos and disorder.
The writer works as a legal caseworker and UN officer at the Islamic Human Rights Commission in London. Email: