Freedom of Expression & Contempt Laws

On invitation at Lahore High Court Bar Seminar organized by Lahore High Court Bar Association on 24 August, 2013 in Karachi Shuhada Hall of the Lahore High Court published as PLJ 2013 Mag.356.

Worthy President,
Lahore High Court Bar Association, Lahore, Distinguished Guests and my respectable colleagues,

Asslam-O-Alikum!.

This day carry great pleasure for me to express views on my favorite topic i.c. “Freedom of Expression & Contempt Law”. I have to point out measures for the stability and rule of law as the courts of Law are losing confidence of public rapidly although Chief Justice of Pakistan Mr. Justice Iftikhar Mohammad Chaudhry in his non-judicial statements through media has a unilateral view to the contrary but it is within the jurisdiction of Bars to perceive what quality of justice is being rendered? by courts of law and how it can be improved. Therefore, jurists have always reckoned strong and independent Bars as beaconlighters for the ill-informed judges and to check the excesses because if law is not respected and other considerations become relevant while delivering judgments, then there would be no need of Lawyers as well as of judges) and outside courts settlements, aggressions, frustrations would become increased but present seminar is a ray of hope towards the concept of “Independent Bar Councils”:

My dear fellows: Contempt Law is the only law which itself compel the balance judges to become unbalance as Mr. Justice Black Wrote in the Green case”. When the responsibilities of law maker, prosecutor, judge, jury, witness and disciplinarian are thrust upon a judge, he is obviously incapable of holding the scales of justice perfectly fair and true and reflecting impartiality on the guilt and innocence of the accused. He truly becomes the judge of his own cause. The accused charged with criminal contempt is thus denied an indispensable element: “The due process of law”(1).

Actually, it is un-natural law having no significance in democratic world because contempt of court bill was introduced in the House of Lords in 1883 and then this law was adopted in other common wealth countries which remained under the monarch. King was presumed incapable of doing any wrong. First contempt case was reported in 1631 when Chief Justice Richardson indicated a person for throwing a brickbat at him and passed order to cut his right hand and then he was later hanged in the presence of the court. In 1634, a similar offence was committed by Williamson whose right hand was cut off and the hand was fixed at the entrance gate of the court where it continued to be displayed for some years (2). It is note worthy, that prior to these events, the administration of justice was run without contempt law and even at present judicial system is successfully running without the help of this weapon in many countries of the world. This law was the gift of king when the power of court was separated from his office and instrument of contempt was symbol of king’s justice. Judges in reciprocation were automatically slow in passing orders against the king’s administration. Actually, the judges were tools to strengthen the king’s rule because at present, they are working under the Head of State who is not enjoying such powers and open criticism in media is being leveled against the President. Certain events and cases happened which have weaken this law but still the angry judges are using unlimited powers even not provided by the law. In 1831, impeachment was moved against Lord Peck in US Senate for trying the attorney / counselor summarily in contempt on publishing a letter in the newspaper. He was punished 24 hours imprisonment and license was cancelled for 18 months but this type event not happened in future(3). Even in UK. innocent publication and distribution is no offence under Adminisuration of justice Act, 1960(4). With the rising trend of democracy, contempt has remained limited only to courtroom conduct. Likewise Chief Justice of Lahore High Court Sir Douglas Young and his fellow judge Monroe had to resign when they first convicted Lala Har Krishan Lal Gauba in 1936, firstly for one month and then he was jailed for an indefinite period until: he would agree to apologies. Meanwhile, the legislature enacted the Act. of 1937 prescribing the period of sentence as six months. Then, Lala was released after 13 months. Lala’s son, K.L. Gauba wrote New Magna Carta wherein he leveled allegations against Chief Justice(5). K. L. Gauba was also noticed and he was disallowed to lead evidence. He was sent behind the bar for six months when he refused to tender an apology. Matter went to the Privy Council which conveyed the matter to the Viceroy through the Secretary, State and Chief Justice was required to face inquiry or resign. Chief Justice opted to resign in 1943 and his fellow judge also resigned. Mian Muhammad Nawaz Sharif present Prime Minister of Pakistan also weaken the contempt of court Act, 1976 by bringing amendment in Section 10 of the Act in 1998 wherein it was required that appeal is competent against Show Cause Notice which shall be heard by all the remaining judges of the court available in Pakistan and operation of show cause notice will automatically suspended on filing appeal(6) Another Advocate of Lahore Barrister Yousaf Ali Khan was convicted by Lahore High Court for seven days as he was outspoken and raised objection in court to Constitute Larger Bench as the Learned Judge: before him had his relation with Chief Justice. Luckily, he was acquitted from the Supreme Court as the judges were ready to hear his case(7) but such chance was not provided to Mr. Syed Riaz ul Hasson Gillani Advocate who was convicted by Lahore High Court on delivery of speech in Bar. The Pakistan Bar Council came forward for his help and a resolution passed by it was forwarded by the learned Attorney General to the President of Pakistan who remitted the sentence.

I am myself one of the victim who remained behind the bar for 40 days in 2005(8) but no court has become ready to hear me and Supreme Court is continuously denying my right of hearing although my conviction was recorded under Ordinance, 2004 which has been enacted under wrong assumption as viewed in (PLD 2007 SC 688 at 695) (9). I was under illegal confinement as conviction was recorded under no law, without trial, no show cause notice was issued, no charge was framed, right of appeal was suppressed by immediate arrest in the Court room and statutory benefit U/S 382-A Cr. P.C. was denied.

Further, the oppressive, arbitrary, biased, partial and hostile conduct of Supreme Court became clear when license of advocates were suspended without proof of allegations and entrance of advocates was banned then, what will be the value of the Supreme Court anthems “Justice for all and impunity for none.” Imran Khan has been made answerable who conducted press conference by feeling impugn but on the other hand, Supreme Court took no action against Mr. Saeed Zaman Siddiqui Ex-CJP for calling the order of seven judges in question and Honorable Five Member bench dismissed the petition on my application(10). Courts have settled that an act which does not have the effect of interfering with the exercise of judicial functions by the courts cannot be the subject matter of contempt proceedings.

Mr. A.K.Brohi in a paper read at the 2nd Jurist Conference (11) held at Lahore on January 9-12, 1975 was of the view that “Law of Contempt prevailing in Pakistan is based on English Law but even in England the category of contempt relating to scandalization of the court has virtually become obsolete in the sense that no case of this type has been brought to the notice of English Courts. While summing up his conclusions in the form of proposals he said in proposal No.1 & 6 as hereunder:

• The article-204 of the Constitution relating to Contempt of Court needs a drastic revision and we should if possible return to the formulation which was given in the Constitution, 1956 and define the scope and procedure under ordinary law.
• We should evolve a category of contempt to be called contempt by a judge of his own court and all such cases where any judge who misconducts himself, abuses the parties in the case, vilifies and scandalizes advocates and witnesses during the conduct of the case should be brought to the notice of Supreme Judicial Council for trial.

Under Article-5 of the Constitution, (12) obedience to the law and Constitution is obligatory on every citizen. To keep within limits of law is duty of every citizen especially of lawyers as Bar Council Law cast duty upon them under rule 3, 4 Rule of Business of Bar Association (Memorandum of Association Punjab)(13). It is popularly known that when Abu Bakar was elected as Caliph, then he addressed the Public “I have been given authority over you, but I am not the best of you. If I do well, help me and if I do wrong, then put me right. Like wise, Omer Bin Abdul Aziz said “Obey me, so long as I obey Allah” (14). Article-2-A was inserted in the Constitution in 1985 and Article-204 of the Constitution having its spirit in Government of India Act, 1935, U/A-215 which has lost its efficacy and judiciary cannot remain independent when inviting help from the state for initiation of proceedings under Contempt Law. In a case, High Court of Lahore held a judge in Contempt when a lawyer was verbally chastised by the judge. High Court observed that such abuse of an officer of the court could not be tolerated. The court is not the judge alone the court is an institution of which the judge is one part and the attorney are the other (15). In Masroor Alisan’s case (16) “It has been held that judges are respectable like an ordinary citizen and his respect lies in his own conduct. Contempt law does not afford personal protection to a judge. But it must always be regarded with respect to administration of justice. Freedom of expression under Article 19 of the Constitution is the fundamental right of every citizen and they must be allowed to express their views in public interest for the betterment of administration of justice and restriction by sub-constitution enactment under unnatural law i.e. contempt law must be abolished. In an article eminent jurist Mr. Asif Saced Khan Khosa, has viewed that public should have right to question or comments upon the conduct of Judicial Officers qua discharge of his duties as it is that public who are paying for the position and facilities of the judges(17). Moreover, the right of expression or to speak true is Divine in its nature having its foundation in Holy Quran and Sunnah while restriction by Contempt Law is artificial as this law has never remained in uniform shape but amended from time to time. In other words, the existence of the former right is akin to “God” while the law imposing restriction is to “god” In Rex Versus Almon (1765) Wilmot Notes 243: It is not their (judges) on cause but the cause of the public which they are vindicating at the instance of the public….. and so if the seat of justice abuses that confidence and an impression is created in the public mind that the judge is excitable, indecorous and insultive to party, or counsel, then, the confidence of the public is shaken in the administration of justice…. And whenever, men’s allegiance to the law is fundamentally shaken, it is the most fatal and the most dangerous obstruction of justice and in my opinion calls out for a more rapid and immediate redress than any obstruction whatsoever, not for the sake of the judges as private individual but as institution”. Similar nature view was expressed by Lord Atkin that the judges must not use the power of contempt in anger or irritation for their respect but through qualitative judgments (18). Therefore, it is unfair if the disrespect of administration of justice by lawyer or any other member of the public is cognizable but non-cognizable when done by a judge. Whether following facts do not constitute disrespect to administration of justice:

• When he interferes or accepts interference in the judicial decisions.
• When a judge repeatedly interfere in the arguments of the counsel during their flow without just cause with the intention to knock him down especially when he is relevant and no repetition of arguments from his side.
• When he passed remarks having no nexus with order or judgment in media just to get fame in public which is not the judicial function but personal as viewed in Abrar Hassan’s case (19).
• When he has curtailed the independence of subordinate judiciary under his self styled policy in order to consume the funds of Access to Justice”
• When he compel a contemnor present before him to tender apology in violation of Article-13(b) of the Constitution especially when he is true which denote the imperial and theocratic attitude having attack on ideology and thinking compelling the contemnor to live like animals.
• When he is suppressing the style of advocacy and scandalizing them and try to “teach” rather “listen”.”
• When he has not delivered final judgment in so many cases after hearing the arguments which is also violation of code of conduct.
• When he delivers judgment on his personal wish, caprice and whim and clearly ignores statute or legislative intent.
• When he is unable to maintain harmony and consistency of view in judgments passed by Apex Courts

Actually, Contempt of Court’s proper and balance name is “contempt of law” which Act must function for the respect of administration of justice and there must be some independent forum with some good name like Disciplinary Court, Impartial Tribunal, Chief Court, Grand Jury, Jury Court and equal representation to the eminent jurists duly recommended by the bars must also be given.

Present law must be abolished because judges need not be protected under special law as Article-204 of the Constitution is also silent with regard to the special enactment. But they must seek ordinary course which is available to ordinary citizen. Therefore, criminal contempt is the obstruction of administration of justice and there is provision i.e. 228 PPC. Likewise, judicial contempt with regard to scandalization and personal attack; the purpose can be served through Section-500 PPC or these provisions can be suitably amended. So far as civil contempt is concerned which is invoked when court orders are not obeyed. It is the duty of the judge to implement its own order by requiring in the last lines of orders:

“The concerned functionary is directed to comply with the order of this Court and submit report to the DR (J) of this court within 15 days of the receipt of the order who shall place the same before me in chamber for final disposal. Expenditure of litigation may also be deducted by attaching his salary in order to balance the scales of justice”:. Ordinary coercive measures are sufficient for the implementation of orders.

In this regard Article-199 if possible may also be suitably amended for complete justice and to balance the scales of justice. Actually, the present practice of filing criminal originals is contrary to common sense as applicant’s have no torus standi and courts have also refused to pass order on these flattery applications, Judges must earn respect from their conduct and predictability of their just but not demand the same. They are otherwise under duty to do justice or “Addal” between parties as ordained in the Holy Quran and no verse of the Holy Book permit them to become party by themselves by leaving the function of “Determination”, but they are expected to separate them from such position as Hazrat Ali let his enemy free who spitted on his mouth and this event makes it clear that decisions in anger are Haram, while dispensation of justice is Halal. Therefore, use of tools for making Haram as Halal such as Contempt of Court law must be prohibited.

REFERENCES:

• Case law reference has been taken from article of Mr. Sharifuddin Pirzada. Sr. ASC on contempt law published in Daily Times dated 19, 20-08-2013.
• Contempt of Court by V.G. Ramachandran.
• Oswald on Law of Contempt.
• U.K. Law on Administration of Justice available on Internet.
• AIR 1942 Lah. 411.
• Section-10(2-A) Contempt of Court Act, 1976.
• PLD 1977. SC 482.
• 2005 YLR 3046, 3052
• Contempt for humiliation of Chief Justice.
• 2011 SCMR 948
• Notes taken by Sheikh Abdul Haleem for Pakistani addition of Oswald on Contempt.
• Constitution of Pakistan, 1973.
• Legal Practitioners and Bar Council Law.
• The Reconstruction of Legal thoughts in Islam P.215 by Syed Riaz ul Hssan Gillani.
• AIR 1949 Lah. 270.
• PLD 1998 SC 823
• AIR 1936 P.C. 141
• PLD 1976 SC 315