Focus on Rights

Intensifying severity of contempt laws in Pakistan
Lahore, Pakistan, 4th November, 2004 - A new law in reference to contempt of court in Pakistan has excited a fair measure of controversy in that country among the legal fraternity as well as ordinary citizens. The Contempt of Court Act of 2004 was passed unopposed by the National Assembly on Monday, October 18, 2004, following a walk out by opposition parties. It repeals the old 1976 Contempt of Courts Act.

Its very several sections, in some respects, duplicate ordinary powers of contempt exercised by courts around the world. In other respects however, its provisions are highly problematic in a country where the undermining of the authority of the judiciary has become a favourite weapon of successive military rulers. Pakistan's constitutional history bears witness to many instances where independent judges have been replaced by judicial figures who are either passive or profess known sympathies to the military regime of the day.

The 2004 contempt law makes the familiar classifications between civil and criminal contempt but go on further to stipulate a third category defined as judicial contempt which covers the old notion of 'scandalising the court', now an obsolete concept in advanced jurisdictions.

Judicial contempt, as defined in the Pakistan law, also prohibits personalised criticism of a judge while holding office. This is further explained to mean criticism of a judge or a judgement where improper motives are alleged. However, true averments in good faith and in temperate language made in complaints to certain bodies designated in the law to be forwarded to the Supreme Judicial Council are exempted from this bar. Then again, fair comments on a decided judgement are not stipulated to constitute contempt if couched in temperate language. This is subject to the condition that the integrity and impartiality of the judge should not be impugned.

On the positive side however, truth is explicitly stated to be a valid defence in the case of an alleged contempt. The law provides further that no proceedings for judicial contempt may be initiated after the expiry of three months. Where a subordinate judge is impugned, the case is referred to the Chief Justice who may himself hear it or refer it to another judge. Where the conduct of the Chief Justice is in issue, the matter will be referred to two seniormost judges available for such purpose.

All those who are found guilty of judicial contempt are liable to be imprisoned for four months and subject to the payment of a fine. Significantly as far as the media is concerned, where contempt is committed by a company, responsibility is to be borne to all those persons liable directly or indirectly for such contempt.

The overall effect of these provisions may appear to be fair and reasonable to some. But, specific developments relating to the independence of the judiciary vis a vis Pakistan's military regime import a different and more sinister meaning to the new law. While a historical assessment in this context is not possible in this column, the new law assumes grave meaning in the background of recent events following the proclamation of emergency in 1999 when General Pervez Musharraf took control of the state, assuming the office of Chief Executive of the State and putting the Constitution in abeyance.

Thereafter, the Provisional Constitution Order, (issued also in 1999), declared that though courts may continue to function, no court would have the power to make any order against the Chief Executive. Fundamental Rights was rendered largely impotent by the stipulation that only so much of it as was not in conflict with the Proclamation of Emergency and any order made under it, would continue to be in force.

This was supplemented by an order requiring judges of the Supreme Court and the High Courts to take a new oath of office in which no reference was made to the Constitution.

Instead, they were required to abide by the provisions of the Proclamation of Emergency and the Provisional Constitutional Order. The military regime had the option not to invite any judge to take the oath. And in a scenario reminiscent of Sri Lanka in the late seventies, some judges of the appellate courts were removed from the Bench. Six judges of the Supreme Court, including the Chief Justice, who declined to take the oath, were retired. The same fate befell particular High Court judges.

A later hearing by the reconstituted Court, of several petitions challenging the new Orders, resulted in the petitions being dismissed. In a controversial ruling, this Court declared the military take-over of October 12, 1999 to be valid under the doctrine of necessity but stated that civil rule must be restored before the expiry of three years from the take-over date. It is as a consequence of this direction that elections were declared and held in Pakistan in late 2002.

The same judgement of the reconstituted Court gave President Musharraf the power to amend the Constitution if it did not offer him means for the attainment of his declared objectives, barring only change of particular provisions relating to federalism and parliamentary form of government in the context of an Islamic state. The regime was also given permission to deviate from the observance of six fundamental rights, freedom of movement, freedom of assembly, freedom of association, freedom of business or profession, freedom of expression and protection of property rights.

April 2002 saw the holding of an even more controversial referendum in favour of President Musharaff's term of office extending to five years beyond the scheduled October 2002 elections. Subsequent orders were issued specifically relating to the conduct of elections, increasing the seats in the Senate, National Assembly and Provincial Assemblies and setting aside reserved seats for women.

At that time, more problematic orders were promulgated, seemingly reasonable in their substance but alleged by Pakistani human rights groups to have the sole objective of disqualifying political opponents of the military regime, notably Benazir Bhutto, the leader of the Pakistan Peoples Party (PPP). The most notorious of these orders barred anyone who held the office of Prime Minister or Chief Minister twice at any time from occupying the office for the third time. The other more justifiable orders introduced a degree requirement for all candidates and disqualified those who had been subject to convictions before a court of law. Thereafter, the 17th Amendment was passed to the 1973 Constitution, embodying the provisions of the Legal Framework Order of 2002, which had the effect of further consolidating the current military regime.

Notwithstanding this continuing overriding of constitutional processes by military rule, comment and criticism of judicial acts and judgements by lawyers as well as ordinary people in Pakistan has been very forthright, sometimes far more than in Sri Lanka, despite the fact that our 'judicial subversions' occur in a far more seemingly democratic context. And to give the devil its proverbial due, this has been to the credit of Pakistan's military rulers. It is unfortunate that the new law may perhaps change all that, given the severity of its provisions.

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