Scandalising the Pakistani Courts

Scandalising the Pakistani Courts

Ardeshir Cowasjee, arguably the most famous journalist in Pakistan, is
being hauled into court again. This time the charge is that he
committed a particular kind of contempt of court -- known as
"scandalising the court" -- when he made some acerbic remarks about
the Pakistani judiciary on a recent PTV programme.

Dawn, the newspaper Cowasjee writes for, printed the text of the
Supreme Court charge-sheet quoting the remarks Cowasjee made on PTV:

"Today Judiciary has no respect. The judiciary has killed itself. The
Judiciary is corrupt. The Government made it corrupt. The Government
has got a book on all the Judges. The people looked down on the
Judges. The higher the Judge, the lower he is looked down upon....."

"Judiciary can never demand respect. I mean these guys can threaten
us that we will take you to court and charge you with contempt
case. But it\'s all nonsense. They should command respect and that
will take a long time to come, every thing is corrupt".

These remarks, the Court charges, "scandalized the Superior Courts of
this country and the Judges comprising such courts and tended to bring
them into hatred, ridicule and contempt".

This is no new adventure for Cowasjee. He was charged four years ago,
in 1995, for essentially the same offence \("scandalising the court"\),
because he had written a column in 1994 questioning certain Supreme
Court appointments.

His contempt for the court \(which is not necessarily the same thing as
contempt of court\) can only have grown in intervening years. After
Chief Justice Sajjad Ali Shah was made to quit his office in 1997 to
prevent Nawaz Sharif from being tried for contempt of court; after the
mob of PML protestors who stormed the Supreme Court for that same
reason in 1997 were let off this year by the same Court; how can a man
of Cowasjee\'s stern convictions regard the court with anything but
contempt?

There is a certain irony in the fact that the legal landscape
surrounding the doctrine of "contempt of court" has changed
significantly in Pakistan since the Nawaz Sharif government repealed
the Contempt of Court Act, 1976, and replaced it with the Contempt of
Court Ordinance, 1998. After all, Cowasjee was among the bitterest
critics of Sharif\'s unabashedly changing this law solely to protect
himself from prosecution; and yet now Cowasjee could benefit from the
greater protection that the Ordinance gives to those charged with
contempt.

Even more ironically, Cowasjee is again in the same category as
Sharif, since they are both fellow "scandalisers" of the judiciary.
It is hard to say which of them would be less pleased at being
associated with the other in this way.

Anyone considering the history of contempt of court cases in Pakistan
in the last few years has to wonder if it has not run out of control.
After all, it was Sajjad Ali Shah\'s decision to charge-sheet Sharif
for contempt of court after Sharif made a remark criticising him that
led directly to Sajjad\'s dismissal, President Farooq Leghari\'s
dismissal, and the storming of the Supreme Court by a mob, which in
turn can only have contributed to the over-concentration of powers in
Sharif\'s hands and his eventual dismissal.

And now, with the Sharif government behind us, a columnist of Ardeshir
Cowasjee\'s eminence and unimpeachable respectability is again dragged
into court for the same "offence".

It turns out that in the United Kingdom and the United States -- the
two countries to which India and Pakistan most often look to for their
examples of legal practice -- the specific kind of contempt of court
charge that is at issue here, ie. "scandalising the court", is
nowadays regarded as totally incompatible with free speech.

In the United Kingdom, this offence -- which makes practically any
criticism of a judge or a court a crime -- has not been used since the
last conviction under it in 1931.

In the United States, to charge someone with contempt of court for
criticising a judge or a court is totally unheard of, largely because
of that country\'s longstanding commitment to freedom of speech. A
1941 Supreme Court decision dismissively mentioned the concept of
"scandalising the court" and pointed out that "Such foolishness has
long since been disavowed in England and has never found lodgment
here".

The other inheritors of English common law -- Canada, Australia and
New Zealand -- have generally refrained from using this charge, though
it remains on the books there. An Australian trades unionist was even
convicted under it in 1982. However, his conviction caused a huge
outcry and spurred calls for the reform of the relevant laws.

Thus, while "contempt of court" remains a valid and widely used
principle in Anglo-American law -- used to prevent interference with
or obstruction of the administration of justice, such as by ignoring
court orders, disrupting court proceedings, or interfering with
witnesses -- the specific variety that has run out of control in
Pakistan has died out in its original home.

It is also used in this way in India, though cases there have not
occasioned quite as much of a ruckus as they have in Pakistan. In
1996, the Shiv Sena demagogue Bal Thackeray was sentenced to one week
in prison for claiming that a judge had demanded Rs. 3.5 million for
favouring a defendant.

\(There are many excellent reasons for sending Bal Thackeray to prison,
and probably for much more than one week, but making remarks about
judges taking bribes -- which is hardly unthinkable either in India or
in Pakistan -- is not one of them.\)

The problem in India and Pakistan is that legal doctrines are not
evolving under the pressure of a civil society. In many cases, like
this one, they have remained fossilised in the Britain of the 1930s.

For example, another legal doctrine that has gone through the same
fossilisation, and endured the same abuse, in India and Pakistan, is
the concept of "preventive detention", which is still used by our
South Asian governments to lock up people they don\'t like, even though
the British and other Western governments have largely forsworn that
power.

The Kashmiri freedom fighter Shabir Shah is at this very moment
languishing in a Jammu jail thanks to the concept of preventive
detention. Under a more rational and modern legal system, the Indian
government could have no possible pretext for detaining him.

All this leads to the somewhat startling conclusion that better
justifications are possible than the ones that actually motivated
Sharif when he pushed through the 1998 Ordinance restricting the
exercise of punishment for contempt of court.

It is not enough to condemn the issuance of a charge-sheet against
Ardeshir Cowasjee for his quite reasonable remarks about the Pakistani
courts. If what is desired is to help advance society, rather than to
save one man \(who has enough friends battling on his behalf that it is
unlikely he will be convicted\) then the very notion of "scandalising
the court" must be seen for what it is: an outdated and repressive
legal doctrine incompatible with the functioning of a free society.