It is time for introspection
We were talking of contempt, freedom of expression and the right of dissent, of suo motu and suspected partisanship. The way the Islamabad High Court ordered the police to register a murder case against Gen Pervez Musharraf immediately for the Lal Masjid operation defies credulity. One is left wondering about equity and balance, about whether it is not the duty of a head of state and supreme commander of the armed forces to protect the state against terrorists and enemies external and internal who would harm it. We will make ‘fair comment’ on this when the time is ripe. Of that you can be sure, God willing.
Ah! What a loaded term, ‘fair comment’ is. Who decides what is fair or what is not? Judges in their own cause, what? The people’s right to make ‘fair comment’ on court judgments is inalienable and indivisible, as too the right on what the else judiciary does as too behaviour of judges and their families. Human beings are not intellectually hostage to court judgments for God has given them free will and the ability to choose between right and wrong. In an Islamic state this should be paramount. We will, God willing, also write about freedom of expression in Islam sooner rather than later.
President Musharraf repealed the 1976 Contempt of Court Act and passed a Contempt of Court Ordinance on December 15, 2003. At that time, under Article 89 of the constitution, an ordinance was valid for four months unless re-promulgated one time only, but the Parliament of 2003 validated all Musharraf’s ordinances made between October 12, 1999 and December 31, 2003 through the 17th Amendment and the Parliament of 2010 affirmed this validation through the 18th Amendment. The temporary ordinance thus assumed the character of a permanent Act through the device of Article 270AA of the constitution.
The ordinance distinguished between three kinds of contempt: civil, criminal and judicial. The ordinance says, inter alia, “whoever…does anything which is intended to or tends to bring the authority of a court or the administration of law into disrespect or disrepute…or to lower the authority of a court to scandalize a judge in relation to his office, or to disturb the order or decorum of a court, is said to commit ‘contempt of court’.” You can read it in full in Dawn, December 17, 2003. Punishment can be imprisonment for up to six months or a Rs100,000 fine or both. An apology may be accepted “and the court, if satisfied that it is bona fide, may discharge him or remit his sentence.” (Wow! These are Divine powers. I thought that God alone knows what is in a man’s heart).
The dictionary meaning of ‘contempt of court’, not simply ‘contempt’, is “willful disobedience or disrespect of court” and “distorting or trying to distort the course of justice.” If what is uttered is truthful to the best knowledge and belief of the utterer it is not contempt of court so long as he can prove it because under the ordinance “…truth shall be a valid defence in cases of contempt of court”. If witting or unwitting rigging of the ballot with the involvement of the judiciary is proved for example, it certainly is “shameful” for Pakistan. If it isn’t, it certainly is contempt. That it would open a Pandora’s 40-feet container is beside the point for eventually it would be good for the state. In an Islamic republic truth must prevail. It is a Divine imperative.
Article 204 of the constitution says that in contempt of court: “…‘Court’ means the Supreme Court or a High Court”. Under the Ordinance every high court shall have the power to punish a contempt committed in relation to it or any court subordinate to it. So only the high courts and Supreme Court have the lawful authority “to punish contempt”. Article 63(1)(g) of the constitution states, inter alia, that a person shall be disqualified from being elected or chosen as, and from being, a member of parliament, if he or she says or does anything against “…the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary…” Holy cow, sure, but it is vital that the judiciary (as too the judges), being one of the three equally vital branches of government, is unblemished and above suspicion so that there is public acceptance of its judgments. Else justice will not be accepted as balanced and blind and may consequently invite ridicule and opprobrium. A person can be found guilty of contempt unless he apologizes and “throws himself at the mercy of the court”, a highly un-Islamic phrase in an Islamic state because a Muslim only throws himself at the Mercy of the Court of the Almighty and none other. Sadly, we are still beholden to British form rather than to God and His Laws. Even using the honorifics ‘lordship’, ‘majesty’ or ‘highness’ is blasphemous of God but must be dealt with only by God, not people. Our judges should stop the use of the term ‘lordship’ else it is contempt of the Supreme Judge.
Here’s a contradiction: while law dispensers are above contempt, lawmakers are not. Unlike judges who are supposed to be justice dispensers, legislators who are lawmakers are not spared. Parliamentarians need no proof to say anything defamatory about anyone or anything on the floor of the House (which is why people, including other parliamentarians, challenge them to say whatever they do outside parliament if they have the guts), but they cannot about the judiciary. Judges and the judiciary are holy cows even there. Article 68 of the constitution about restrictions on discussion in parliament says: “No discussion shall take place in Majlis-e-Shoora (Parliament) with respect to the conduct of any judge of the Supreme Court or of a High Court in the discharge of his duties.” There are no holy cows in Islam, especially when the cow is perceptibly unholy. I keep referring to Islam because we hypocritically profess to be an Islamic state without regard to the gulf between profession and practice. That gulf, in itself, is grave contempt of the Divine.
Freedom of speech for the ordinary mortal is not absolute in our constitution. “Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, commission of or incitement to an offence.”
Just as the phrase ‘supreme national interest’ can be subjectively exploited for self- or group-interest, so too can the word ‘reasonable’ to avoid what might be truthful. What is reasonable and what is not is a matter of opinion and interpretation. Certainly it is most reasonable, indeed an imperative, to speak the truth as one sees it if it benefits the public good. Criticizing a judge without proof is unreasonable. Criticizing him with proof is not only eminently reasonable, it is in the public interest and part of a citizen’s fundamental right to freedom of speech and expression – it is an imperative to limit damage to the reputation of and respect for the judiciary. If ‘reasonable’ suspicions are aroused about a judge’s behaviour, it is also eminently reasonable to voice those suspicions publicly so that they can be inquired into and dealt with one way or the other.
One should differentiate court from judge. ‘Fair comment’ on a judgment is not contempt but an attempt to protect the respect of the judiciary.
The judiciary is an institution while the judges are its servants who get paid from the public exchequer that is held in trust by the government of the day. Judges cannot be bigger than the institution, the judiciary. An institution is as good as those who run it. If it is suspected that some of them are wanting, it is a citizen’s duty to point it out to protect the institution. Wanting or compromised judges are in themselves contempt of the judiciary.
Thus while telling the truth in good faith as one sees it is not contempt, hiding or twisting it or speaking lies is contempt of the judiciary, the country and the Divine. Judges are supposed to protect a citizen’s fundamental right of truthful expression, not to seal his lips with contempt cases when it doesn’t suit them. They have to earn respect, not demand or order it.
It’s all about upholding the truth and saving the country and one of its most vital institutions without which there can be no civilization. As I said last week, the judges should think why they are slipping down the high pedestal they were placed on and ask why their most ardent supporters are deserting them. If they really want to restore the respect of the judiciary the controversial judges may consider the example of the chief election commissioner. It is time for introspection.
“If we cannot go to the Supreme Court as a last court of appeal,” asks Imran Khan, “then where?” Where indeed? The only place then left is the court of the people. That court exists on the street. That is where the sacked judges were restored. That is where they could be sacked again.
The writer is a political analyst. He can be contacted at [email protected]
the court system is rotten to the core, paradoxically when they say it is its peak.
Its better to name them Kangroo Courts as Anjahani Mohtarma Be nazir Bhutto said.
cong.on very rational analysis.
In the case of judges movement who have been given an authority to dispense justice to its down trodden classes,thay are adamant to use its powers to acquire a state of Godly absolutism.Bigger culprit are those who were never conscious of the fact that a reference against CJ Iftikhar Chaudhary's corruption was brought to the then President which they should have allowed to be tried for the real liberation of Justice rather it was never allowed to be opened and tried by our great conservative and democratic , right and left wings parties and intellectuals in 2007 for their own political gains. This political filth did the same with Pakistan Military in the political malice of each other. The one who would think for poor and unprivileged becomes the biggest of all traitors. So he will have to face the force which they acquire in the name of some times Islam, some times Nationalism this justice…. As it suits them…… It depicts a genetic design of our nation. We think ourselves bigger than what we are…… we are just subservient of our two times bread,and those who are much more than this to save their palaces and bank balances, and nothing more. 90% of the voters of my country still vote for some hundred of rupees or 1 or 2 months ration.If for the purpose of argument i agree with all the conspiracies, we the paranoids, believe. At the end of the day we kill our people in the name of God with suicidal heavenly passions and somewhere work for black water. that is ironical. Who will think for a bigger cause of Pakistan and that is, its survival as a country of civilized people who want to co exist with the world. The one who will dare will be the biggest devil and unforgivable traitor because he will educate and up lift the voter of our so called democratic and religiously self acclaimed highly moralistic parties who would become conscious of their self respect and so their rights and would refuse to vote for these looters. I wondered when Mr Musharraf was passionate to come back to his country to serve that who would stand for him? because i was fighting his case and always was left with a wide mouth because they all had joined hand against him and logic mattered nothing to them…….. Thanx Mr Hamayun Ghauhar i feel relieved that i can identify myself with you . Thank you once again for writing sense.
excellent comment sadia. you are not alone in your despair at our so called political & intellectual elite. I would add that these scum weren't worth 2 cents until the media elevated them to the positions of 'leadership' that they now hold. Mr. Gauhar is one of the few voices of reason left in that sphere.
True& accurate analysis
Judges must realize that in victimizing revenge to Gen Mushuraf, judges setting example of unfair, weak& biased judiciary system in Pakistan.
They must realize their obligations of fair justice for the sake of stability& integrity of this country.
“Must” because there is no chance left for them in view of war& terror situation in Pakistan
Judges wrong, delayed & inappropriate decisions promoted terrorism eg remember Suicidal attack in Eid days that killed about 37 policemen including DIG.terrorists approached the same route that was previously blocked but opened on the order of High court. So who is the killer of those 37 people?
Judges are also citizens& employee of this country. They are also accountable for their actions.
If there is no system, a system should be establish for the accountability of Judges& lawyers
Thank you!
Not Surprising. I will never be surprised when read a notice "JUSTICE FOR SALE" "JUSTICE FOR AUCTION" etc. because this is our style of justice. The Judges were sleeping during 5 year PPP Rule they awakened after five years. never be surprised "JUSTICE ITSELF IS MYRTIRED". Allah Almighty save our beloved country from these CON ATISTS.
Very Nice Dr n thanks for the real pic
there isno justice its only unfair,weak and biased judiciary.
The corrupt lawyers have taken hold of our justice system by patronizing the powerful judges of the country. No doubt this is the time to realize that our judiciary consider itself above the law? I fear no fair trial system will prevail
Court of People is sleeping since long and Allaah knows for how Long…
But, in the end it will surely be decided in streets of Pakistan that these judges are doing Fair in courts or not…
A very true. Comprehensive and fair article written by you Sir…
@Hassan Awan – Not only I agree with you but also endorse to it
Notification needed…
in judicially tehreek peoples didnot come against musharaf they came with hope of justice for them, political parties use them for their own agenda and common peoples were sick of judicial system & hoping that after restoration they will get relief and their cases will hear on merit and they don,t have to go to courts for decades and common peoples have to go to lower courts 90% peoples are not able to reach SC because they can,t pay fee in millions and they were thinking that Iftikhar ch bring justice on their door steps but they didnot know tehreek is not for them. it was for 2% peoples of the country and they trapped.
INSHALLAH, GOD WILL DO JUSTICE.
ITS A BIASED JUDICIARY.
Well written article Humayun. It takes a certain amount of nerve to write they way you did. But then, considering the ignorancy rate in the judges, perhaps no one will grasp the message and you will be safe. Choice of words drive the point home. It will not take much to effort to list the assets of the judges before and after they gained office. Add to that the factories, commercial, residential and agricultural lands that they (and their extended families, incl. relatives through marriage) own, and you will see why the justice system has failed so miserably in Pakistan.
shame on corrupt judiciary
Justice Mr. Ramdai was the head of the tribunal who listened to the reference case against Chief Justice Mr. Iftikhar. Barrister Mr. Aytizaz was the leading lawyer for Chief Justice Mr. Iftikhar. The reference was never argued and discussed and Justice Mr. Ramdai dismissed the reference. Justice Mr. Ramdai was Mian Nawaz Shreef’s man in SC. Now Shreef family reciprocated the favor by appointing Ramdai junior as AG Punjab. Can someone publish the background of these judges – education, selection basis etc.
@Dr. Tahir Jamil – For this please approach Mr. Lucman Mubashir of ARY. He is the right man to show to the public real picture of these corrupt Judges like Ch. Iftikhar and Ramday along with others at the helm including Ch Aytizaz who cannot recite Surah Ikhlas.
Very well written a contempt of court should not be taken as a offence rather whenever there is a case of contempt it should immediatally taken as a suo motto case to find out the reasons behind the contempt & if the reason of contempt is valid & the person who committed this offence is right in doing so then the SC should take action against those persons whether they are judges or the judiciary also as they pass contempt judgements on respectable citizens.
NO JUSTICE PREVAIL, SINCE THE DAY IFTIKHAR CHAUDHRY REFUSED TO GO FOR HIS TRIAL IN JUDICIAL COUNCIL. MUSHARRAF VERY RIGHTLY RECEIVED COMPLAINT OF CORRUPTION AGAINST HIM, AND MUSHARRAF DID NOT ASK HIM TO STEP DOWN (WHICH HE PRETEND ALWAYS) BUT ASK HIS CASE TO BE SENT TO THE JUDICIAL COUNCIL. WHICH HE SAID NO AND UNLAWFULLY BROUGHT THIS CASE TO THE STREET THROUGH CORRUPT POLITICIANS AND LAWYERS.
THE JUDGES, WHO ORDERED TO REGISTER CASE OF MURDERS OF LAL MASJID, AGAINST MUSHARRAF ARE NOT JUDGES BUT THE FOLLOWERS OF TERRORISTS. FOR EXAMPLE PLEASE SEE THIS LINK, WHICH THESE TERRORIST JUDGES CAN NOT SEE https://www.facebook.com/photo.php?fbid=409520739…
I THINK ISLAMABAD HIGH COURT JUDGES ARE THE AULAD OF JUSTICE MAULVI MUSHTAQ, OF LAHORE HIGH COURT. WHO WAS PROVED BIASED AGAINST BHUTTO, THESE SONS OF MAULVI MUSHTAQ. SHOULD REMEMBER THAT HIS DEAD BODY WAS ATTACKED BY HONEY BEE BEFORE HIS BURIAL.
THE COURTS WERE PLAYING AND STILL PLAYING IN THE HANDS OF SO CALLED PRO-ISLAMIC AND PRO-PAKISTANIS, (JISS KII LATHEE USS KI BHANNS) THE MELO DRAMA WAS PLAYING PAST SEVERAL DECADES, AND GOD KNOWS TILL WHAT TIME , IT WILL CONTINUE. ALLAAH TALLAH SAFE PAKISTAN AND PAKISTANIS FROM THE ENEMIES OF SOIL.
NO JUSTICE PREVAIL, SINCE THE DAY IFTIKHAR CHAUDHRY REFUSED TO GO FOR HIS TRIAL IN JUDICIAL COUNCIL. MUSHARRAF VERY RIGHTLY RECEIVED COMPLAINT OF CORRUPTION AGAINST HIM, AND MUSHARRAF DID NOT ASK HIM TO STEP DOWN (WHICH HE PRETEND ALWAYS) BUT ASK HIS CASE TO BE SENT TO THE JUDICIAL COUNCIL. WHICH HE SAID NO AND UNLAWFULLY BROUGHT THIS CASE TO THE STREET THROUGH CORRUPT POLITICIANS AND LAWYERS.
In Pakistan there is no Rule of Law,There is Rule of morally corrupt judiciary. I think Chief Justice Mr Iftikhar ch must set down.
iftikhar chaudhry was 1200 rupee lawyer in quetta,
IN PAKISTAN NOW ROLE ANYWHERE ALL LEADER ARE DOCATE.THEY WANT TO DISTRY AND SELL THIS COUNTRY BUT PERVIAZ MUSHARAF IS ONLY LEADER WHO THINK TO THIS COUNTRY AND HE WANT TO MAKE REALLY TIGER TO THIS COUNTRY.MIAN BROS NOT MAKE TO TIGER THIS COUNTRY BUT THEY ARE BIG DOCATE AND MUSHARAF ZINDA BAD.OUR PRAYERS ONLY FOR MUSHRAF HE GET FREEDEM AND HE DISTRAY TO GANJY BROS $ ZARDARI,CHOHDRI BROS,DIZEL WALI SARKAR ETC….AGAIN MUSHARAF ZINDABAD
It is the dilemma in Pakistan that who ever gets power or authority, he considers himself above the law and jurisdiction. I think Pakistan needs an overhauling right from top to bottom…
Humayun Gauhar is an earstwhile protege of Musharraf. The dictator is reaping what he sowed. Cronies are crying over the nemesis!
I agree with you. Judiciary had lost all its image due to one sided decisions which are being taken again and again. Musharraf case is the best example where judicial activism is reaching its peak. Good piece of work.
Runs in the family sucking up to every military dictator. From Friends Not Masters to In The Line of Fire, written by father and son.
welldonr mr gohar
Baat tou sach hay Magar,
baat hay ruswi ki
Thank you Goher sahib. Great job done.
HA HA — SITE ADMINS ! ! ! ! ! ! !!! LESS SAID THE BETTER.
well Sir the time will prove that the present judicary was not at all free and it was the worst of its kind in the history of Pakistan. Let me this is not the end these so called judges can do any which they are asked to do by their masters but there is a Super most Judge sitting above and every body has to answer him after his death. I am leaving this on record that a day will come when whole the world would say that Gen. Musharraf was not given a fair trial and the cases made against him were all false but than it will be to late but this judicary of Pakistan will be answerable to Allah in their personal capacity.
these are thugs and not judges.a thug seals lips of masses through coercive action.contempt of court in pakistan is done by murderers who takes bribe to hang people under 109.
Reading what Faiz wrote long time ago, and now the columns of Mr. Gauhar, and most of the comments, I am speechless. What can I add to what had not been already said or written. Good wishes, and the prayers have become worthless. Some suggestions reminded me of hanging a bell in the cat's collar, however there is no daring mouse around. India is taking away Pakistan's water, Population of Pakistan is multiplying (it was only ~32 millions in 1947) as if god's land is unlimited, and this petty bickering, I just wish I can close my eyes in such a way that I can never open them on this earth again. Witnessing a slow death had never been easy.
A good balanced and logical article. Well done H G.
sweetened by mind ….
Most of our senior judges are second line terrorist group advocating their line of action, It is now confirmed the linkages between CJ Islamabad High Court and Punjabi Taliban
In a famous case, the renowned British jurist Lord Justice Denning had observed:
" (Contempt of Court) is a jurisdiction which undoubtedly belongs to us but which we will most sparingly exercise, more particularly as we ourselves have an interest in the matter.
Let me say once that we will NEVER use this jurisdiction as a means to uphold our own dignity. THAT must rest on surer foundations.:
Its shame my country behave like banana republic with banana judiciary .If its honest and right Musharraf should get many rewards in many excellent deeds.Honest peoples has no value perhaps to servive in Pakistan,have to be corrupt .sad.
"When the unjust judge judges horrible things happen.But when the justice judges the unjust judge more horrible things happen," In case of Musharraf`s
trial I warn the honorable judges to be at their guards because ultimately they too have to face the highest court of justice.
M.M.Jamal
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