Contempt of Court is the buzzword these days. Since the Contempt law rests on how it used to be interpreted and practiced in the UK a look-back is very much in place.
“Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest.”
With the statement above, Lord Denning at the UK Court of Appeal, set out back in 1966 how the powers of contempt should be most sparingly exercised. This related to critical comments that Quintin Hogg, a senior barrister, had made in an article titled ‘The Gaming Muddle’ for the satirical publication ‘Punch’. Barrister Hogg had criticized decisions both by the Queen’s Bench Divisional Court and the Court of Appeal against the London Commissioner of Police.
“The recent judgment of the Court of Appeal is a strange example of the blindness which sometimes descends on the best of judges… So what do they do?… Criticise the lawyers, who have advised their clients. Blame Parliament for passing Acts which they have interpreted so strangely. Everyone, it seems, is out of step, except the courts,” Hogg had argued, poking fun at the rulings.
But, without taking offence or putting the court above criticism, Lord Denning held that Hogg was within his rights to criticise them even though there were factually erroneous inclusions in his piece. With this, Lord Denning essentially ruled that no person or institution is above fair critique.
One wonders whether Justice Babar Sattar somehow was mindful of this case when adjudicating a plea against PTI leader Fawad Chaudhry for indecent remarks against the high court’s chief justice on a TV channel.
In a detailed order on the petition, Justice Babar Sattar observed that the “legitimacy and moral authority of this court must rest on the quality or merit of its judgments and not by imposing judicial censorship on criticism of its judgments”.
“This court is therefore not convinced even intemperate and misconceived criticism on a judgment of this court by the respondent [Fawad Chaudhry] would cause serious or substantial detriment to administration of justice by this court rendering the respondent liable to be tried for the offence of contempt of court,” the order said.
Does the phrase judicial censorship in the ruling signify anything progressive as far its recklessly frequent application here in Pakistan is concerned? A possible redundancy of the broad-brush that is applied to arraign critics of courts or their judgements?
In the UK, the Crown Prosecution Service (CPS), an independent entity, decides Contempt of Court cases, determines the nature of charges in more serious or complex cases, and advises the police during the early stages of investigations. It also prepares cases and presents them at court and provides information, assistance and support to victims and prosecution witnesses. To burst into a court room and disrupt a civil trial would be a criminal contempt, according to CPS.
A criminal contempt is “conduct that denotes wilful defiance of, or disrespect towards the court, or that wilfully challenges or affronts the authority of the court or the supremacy of the law itself” – behaviour which so threatens the administration of justice, according the CPS website.
The main types of criminal contempt are failing to answer questions in court, physically interfering with a trial, threatening witnesses and conduct obstructing or calculated to prejudice the due administration of justice. It can arise before, during or after criminal proceedings at either the Crown Court or the magistrates’ court, or in the course of any civil proceedings.
Civil contempt refers to conduct which is not in itself a crime but which is punishable by the court in order to ensure that its orders are observed. Examples of civil contempt include disobedience of a court or undertaking by someone involved in litigation, and proceedings will normally be commenced by the other party aggrieved by it. Civil contempt is usually raised by one of the parties to the proceedings. A person who commits that type of contempt does not acquire a criminal record and it is not a criminal offence, even if committed in connection with a criminal case (Cobra Golf Ltd v Rata [1998] Ch. 109).
Both India and Pakistan, nevertheless, follow more or less the same Contempt Laws – which progressive jurists and rights’ activists view as restrictive to the free speech, often used by the judiciary to punish instances of criticism against it.
Keeping the above in view, one wonders what yardstick the Islamabad High Court full bench will apply to Imran Khan’s statement on Judge Zeba Chaudhry, who came under criticism for remanding Dr. Shehbaz Gill into police custody, particularly to the context of Justice Sattar’s stated aversion to “judicial censorship” in his ruling in the Fawad Chaudhry case. He was similarly dismissive of “contempt of court” in an opinion article back in March 2018. The entire nation now waits in suspense as to whether the IHC takes a similar progressive look at contempt of court charges against Khan or acts out of expedience – as Pakistan has often witnessed in recent years.
