Reforming contempt – 18 May 2023
The National Assembly of Pakistan has passed the Contempt of Majlis-e-Shoora (Parliament) Bill, 2023. As per reports, the bill stipulates a punishment of 2-6 years and a fine of one million rupees and is applicable to government and state institutions officials as well as the general public.
A parliamentary committee comprising 24 members will investigate the cases brought before it as per the bill. This is not yet the law, as the Senate still has to pass the bill. Once it is passed by the Senate, the president of Pakistan will have to assent to the bill for it to become law.
As some members of the treasury benches have openly threatened to summon judges of the Supreme Court of Pakistan for contempt of parliament, it seems the president falling on the other side of the political divide would be in no hurry to assent. The only option available to him would be to return this bill to parliament, and if parliament once again passes the said legislation, it will automatically become law after ten day, even if the resident does not assent. It seems in all probability thus that his bill will become law.
However when and if this bill becomes law, it will almost immediately be challenged before the superior courts as being ultra vires the constitution – or in simpler terms being in violation of the constitutional provisions. The first of these provisions is Article 19, which provides that every citizen shall have the right to freedom of speech and expression subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan, friendly relations with foreign states, public order, decency or morality or contempt of court.
This is buttressed by Article 204 of the constitution which provides that the Supreme Court and high courts have the power to punish a person if s/he scandalizes the court or otherwise does anything which tends to bring the court or a judge of the court into hatred, ridicule or contempt. This is known as judicial contempt according to the Contempt of Court Ordinance, 2003.
The interesting point to note here is that the offence of contempt for scandalizing the courts, as opposed to not obeying the orders of the court, has been repealed in the United States, the United Kingdom, Canada, New Zealand and even Hong Kong. In the UK, in the case of Blackburn in 1968 Lord Denning stated that “we will never use this (contempt) 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.”
In 2013, on the recommendation of the UK Law Commission the offence was completely abolished. The US Supreme Court was way ahead of its time when in 1964 in the case of Garrison v Louisiana it declared a similar offence as unconstitutional and swept it off the statute book, and even earlier Justice Frankfurter in the 1941 case of Bridges v California had declared such an offence as “foolishness”.
Such an offence must also now be an artefact of the past for Pakistani courts and the laws must appropriately be amended and reformed by the legislature. It is unfortunate that rather than take such powers away from the judicial institution, parliament now itself wants to give itself this authority.
There are three important points to make here. First, a court must always have power to punish a person for civil or criminal contempt – where its orders are violated or otherwise ruckus is created within the courtroom, but it should not have the power to punish a person for criticizing judges. Parliament of course does not need contempt powers, for it can provide penal consequences in its legislation. For instance, parliament has sanctioned murder with death or imprisonment of life and it should not have the power to punish for contempt only for criticisms made against the institution.
The second point is with regard to the constitutionality of the bill and one of the elementary principles of constitutional law, that was first expounded by the legal scholar AV Dicey in the terms that ‘no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.’
This concept is fully protected by all written constitutions in the world, including Pakistan, codified in Articles 4, 10-A and 175 of the constitution, as the exercise of judicial powers to declare guilt and punishment touches substantially on due process, fair trial and the independence of judiciary. In short, only a court of law can pronounce punishment on a person for a distinct breach of the law, and the other two organs of the state do not hold this power. These principles have been upheld by the Supreme Court of Pakistan in the Shaikh Liaquat Hussain, Mehram Ali and Sharaf Faridi cases.
The third point is with regard to the ground reality of might is right. When parliament did in fact amend certain provisions of contempt of court through the Contempt of Court Act 2012, which also provided for an intra-court appeal (specially designed for subsequently disqualified Prime Minister Yousaf Raza Gillani), the Supreme Court in the Baz Muhammad Kakkar case declared the entire legislation to be illegal, and there is no doubt that there was some merit in at least some of the provisions. Parliament has failed to amend the law again since then, and now has done something far more regressive by providing for a contempt jurisdiction for itself.
One can only hope that better sense prevails. This law in the hands of a tyrant would mean that, all and sundry, for the brittlest of criticism, may be found guilty of contempt through a parliamentary committee and sentenced to imprisonment.
The writer is a Karachi-based barrister practising constitutional and administrative law.