By: Mian Muhibullah Kakakhel
Senior Advocate, Supreme Court of Pakistan
Although democracy is the hall mark of the political system of our country ensuring freedom of expression, press and publication yet besides many visible and invisible impediments in the path of free reporting and conscious and unconscious slips between the cup of truth and lips of publication, there hangs a democles sword of the Contempt of Court on the effective communication of news. News men have always been found in great jeopardy as to what news of the proceedings of the Court can form a part of what they want to convey through their publication or news channels. Many a beautiful item of news would escape the view of the curious reader or listener because the reporter could not gather the guts to report it out of the fear of contempt Law.
It is not only the right of Media to know what is going on in the portals of justice but it is also their bounden duty to report what proceedings have taken place in the Court rooms. This is a constitutional duty cast on the Media men by the Constitution of Pakistan and by the Contemporary development of Media throughout the world. The media has played a great part in the development of society and has suffered casualties to convey to the people what is going on for or against them in various offices or Courts and what rights if any have been infringed by any authority and what is the remedy for it.
In recent past the media in Pakistan has developed into a powerful institution and it is through media that the fundamental rights of the people are not only being protected but the people are being made aware of what their rights are. However, by reference to various provisions of Contempt of Court the media men, the reporters and writers feel threatened.
This article is being written to bring to the knowledge of the people as to what the Contempt of Court is and to what extent a judgment or Judge can be criticized.
The above mentioned Contempt of Court Act was repealed by the Ordinance of 2003, however, the Ordinance lapsed and came to an end because it could not be ratified by the Parliament. Another Ordinance promulgated in 2004 also lapsed. The legislature enacted Contempt of Court Act 2012 which was also set aside by the Supreme Court. The repeal of an Act or the setting aside of an Act cannot revive the previously repealed law, hence by virtue of the operation of Article 264 of the Constitution there is no Contempt law in the field for the time being.
The Supreme Court cannot resurrect a repealed law which died its natural death about 8 years back as it has no power to so. The ordinance is promulgated under article 89 of the constitution and that also by the President of Pakistan under emergency situation when the legislation is not in session and cannot be summoned immediately . These specific parameters have been laid down by the constitution for promulgating and ordinance and its shelf life has been given to be 4 months unless ratified by parliament. The Supreme Court has no such powers under article 89. Article 184(3), does not permit Supreme Court to legislate, hence, the Supreme Court judgment is per in currium and is not be followed as a precedent under article 189.
Article 204 of the Constitution is still in existence but it can only be operated by a subsequent enactment of Contempt of Court law providing the procedure for trial of Contempt of Court and the penalty thereof. Article 204 of the Constitution alone can be referred to for the purpose of educating our masses as to what the Contempt of Court is and what they cannot speak or write about a judgment of the Superior Court.
The print and electronic media has full right to give fair comments on issue before the Superior Court and critical appreciation of any judgment can never be denied by any Court as it is the inherent right of every lawyer, student and educationalist to give views about a judgment that has been delivered by a superior Court. The judgments of the superior Courts once signed and announced in the open Court become a public property and a document which is available to all and which be very well be a subject matter of severest criticism at the command of critique. So much so that it can be torn apart and thrown in the gutter. The deterrence of the Contempt of Court law is no longer available to the Judges in the above mentioned circumstances. A Judge after delivering the judgment cannot even refer to it unless under review and that also on the grounds that the judgment suffers from errors of law or facts apparent on the face of record or the judgment is ridiculous and shocking or there are flaws floating on the surface of the judgment.
A Judge of the Superior Court must exercise complete restraint on his power to punish, shackle or handcuff a person as by doing this he violates his fundamental rights and also Article 10 of the Constitution. When it is persona non grata or corum non judice the niceties of academics shall prevail over the “forensic bullies” entrapped in Air Conditioned Cells.
Next comes the question whether the matter subjudice before a Court of law can be reported or debated upon. The answer legally speaking is no but since the Supreme Court has itself opted not to adhere to the code of judicial conduct and has opted to bring into the Court Room the Pressmen both from print and electronic media they have waved the jurisprudential custom that no matter subjudice before the Superior Courts shall be debated upon. Moreover such a restraint is customary and conventional but not legal. It, therefore, follows that the matter subjudice before a Court can be debated upon extensively so much so that in my humble view in the present day media oriented society a media trial is also permissible.
The iron curtain having fallen and the Wall of Berlin having failed to achieved the object of keeping the information secret it follows that the information is like Oxygen in the air, the water in the channels and the birds from Siberia can never be stopped to enter America bringing in the news from one part of the world to the other or vice versa.
The question is whether a judge can be criticized under the fundamental right of expression the answer is no but when a Judge himself comes forward in public through media with a will and wishes to show his muscles to the society for getting appreciation for the body that he has built he forgoes his right to protection on this score and he can be criticized for his physique, mental capability, popularity, lack of knowledge or adequacy there.
The code of conduct having not been adhered to by a Judge of the superior Court his family members can be criticized for living beyond their means and for conduct unbecoming of the family of the Judge or the Chief Justice and the judge is responsible and accountable for the aforementioned conduct.
The misrepresentation of the decision of the Court or of the Proceedings of the Court are also not cognizable under the protection of Court reporting laws and the reasons mentioned above as when the duty of representation is cast on a non legal entity the errors likely to follow does not attract penalty.
A party aggrieved of the judgment of the Court is allowed to file an appeal against it and the party aggrieved of a judgment of the Supreme Court has no right to file any appeal so the judgment becomes final and operative, hence passing of the judgment by the Supreme Court taking the direct note of the matters cognizable by the lower courts or administrative agencies has always been criticized by the jurists.
In a recent judgment when the Supreme Court of Pakistan intruded in the jurisdiction of another constitutional entity i.e. Election Commission of Pakistan the judgment brought a sufficiently bad name to the Supreme Court and was criticized by almost every body and everywhere in the country even at the expense of the muscular power of the Court which it is always willing to exercise although almost always unnecessarily.
C.E.C had to resign as a result and protest. Imran Khan was issued a Contempt of Court Notice in the same matter but as mentioned above when the Supreme Court itself has thrown itself at the mercy of the spectators then the Judges cannot take shelter behind Contempt law when they are being striped off their clothes in public or when they are commented upon by the members of public who are not accustomed to calling them ” My Lord “.
The punishment for Contempt of Court at present does not exist hence the Supreme Court in the case of Prime Minister Gillani resurrected a dead Contempt of Court Ordinance of 2003 and punished him. Mr. Gillani, I am sorry to say, was more than willing to suffer the punishment for Contempt of Court
The present Parliament has to shoulder the responsibility of enacting a new Contempt of Court Act and it is recommended that any new Act should correspond to the needs of the present day media oriented society and the wish of the people to know more and more through media men by exercising their right to information and expression as guaranteed by the Constitution. The judges should also be subjected to the law of contempt if they cause the whole legal jurisprudence in jeopardy and also for intellectual dishonesty which can specifically be defined in the new act with a specified provision for its penalty.