DAWN - Cowasjee Corner; 25 January, 1998

Contempt of the people
By Ardeshir Cowasjee

COMPLYING last week with the notices received from the honourable Supreme Court summoning us, we - lawyers, columnists, authors, editors, and other citizens who refuse to, and cannot, defend ourselves by sending in an assault mob - trooped up to Islamabad, to the apex court of the Islamic Republic.

We were asked to 'show cause' why action should not be taken against us in terms of the Constitution and the law for what we had either written or published in 1994 and 1995.

The bench of seven honourable judges, headed by Chief Justice Ajmal Mian, hearing the contempt of court cases accorded a most patient and civil hearing to the lawyers pleading on behalf of their clients, particularly to that old indefatigable crusader and lawyer, Habibul Wahabul Khairi, who most forcefully defended himself. And, the first law officer of the land, Attorney General Chaudhry Mohammad Farooq, was most fair and saw no contempt in any of the alleged contemptuous statements.

However, we are precluded from further commenting upon the conduct of these subjudice cases for fear that by so doing it may be held that the course of justice will be prejudiced.

I am fortunate in having lawyer friends with the capacity, ability and understanding as possessed by Jadoogar Sharifuddin Pirzada, senior advocate Aziz Munshi and Barrister Makhdoom Ali Khan, all three so supportive of the rights and freedoms of the people. Without demur, they came with me to Islamabad, to plead for me, giving freely of their time and effort, charging no fee. Up-and-coming constitutional lawyer, the thorough Makhdoom, junior-most of the three (who I consistently discourage from pleading for our governments), did massive research on the genesis and scope of the law of contempt, wading through international and national case law. For the public good, he has been commissioned to write a much needed book on this aspect of the law.

Sitting in the courtroom for three days, I had time to reflect on the judgment (PLD 1977 SC 482) of my late lamented old friend and lawyer, that renowned judge of Pakistan, Dorab Patel, relevant passages of which were cited by Makhdoom and warrant reproduction:

"But I venture to think that if respect for the courts rests only on the law of contempt, then it is resting on foundations of sand. In the long run, if public confidence in the Courts is to be maintained, it must rest on surer foundations than the sanctions available to us under the law of contempt, and in the ultimate analysis public opinion is the only sure foundation both for respect for the law and for maintaining public confidence in the Courts. Therefore, in so far as we have been entrusted with the task of laying down the law of contempt and as we are also the judges of our own cause when we exercise this jurisdiction, we should not lay down a principle which is shocking to the public conscience because this would not be a proper exercise of our discretion and because this would undermine public confidence in the administration of justice by alienating public opinion." and

"... Of course an allegation of bias of a serious nature may be derogatory to a judge and through the judge to the court which he serves, and the question in such a case would be of the advantages, if any, of convicting for contempt the person who advances such an allegation. The only advantage which I can see is that the fear of contempt proceedings would deter people from making such allegations openly and from publishing them. This however might not stop the truth from coming out and an insidious whispering campaign against a judge might do far more harm to the prestige of the court than the alternative course of permitting a litigant to ventilate his legitimate grievances...." and

"...Now, I respectfully agree with the view that courts should be protected against 'disgruntled (and) unscrupulous litigants.' But it is a very different thing to say that Judges must be absolutely immune from all criticism, and the necessary implication of the draconian proposition laid down by S.A. Rahman and Kaikaus, JJ, is that Courts of Justice must silence the truth in order to preserve public confidence in the administration of justice. With the utmost respect I cannot agree with this proposition."

And, Dorab quoting Lord Denning:

"This is the first case so far as I know where this Court has been called to consider an allegation of contempt against itself. It 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 at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundation. 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. This is no less than freedom of speech itself. It is the right of every man in parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decision erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication."

The Supreme Court is housed in an architecturally and aesthetically perfect building. To design this building, Architect Khwaja Nasiruddin, heading PEPAC in the 1970s, had the good sense to commission Kenzo Tange, "the foremost Japanese architect in the decades after World War II." As with the country in general, this fine building is being brought into a state of decay and disrepair. I suggest that the new Chief Justice, Ajmal Mian, walk around the corridors along which the public plough their weary way, never traversed by the judges. I also suggest that he pay an incognito visit to the conveniences provided for the relief of the awam.

More important, each day he should leave Tange's building by the exit used by the awam, and observe and contemplate on the monstrosity that faces him - the ridiculous, horrific and most contemptible structure accommodating the prime minister's private and personal secretariat. This building, if one can call it that, personifies the contempt in which the self- styled so-called leaders of this sad and sorry country hold the people over whom they rule.

The good Justice Ajmal Mian will face a building which no architect of Pakistan or of Wango-wango would dare claim to be his creation. It is capped by 17 domes squatting upon 17 turrets, and has cost the exchequer, inadequately serviced by less than 100,000 tax payers, Rs 117 crores (Rs. 1,17 billion).

It is Nawaz Sharif's brain-child, conceived in his first round, during which construction of the monstrosity was started. He was followed by Benazir Bhutto who shared his contempt for the people and went ahead with the completion of the building, handing over the interior decoration to a cousin. (On the books, each internal door has cost the taxpayers Rs 5 lakhs.).

No discussions of any importance to the poor of this nation takes place in the gaudy gilded cabinet room in which the PM sits with his ministers. Nawaz Sharif announces his decisions, all around him nod, some chant in unison, "There is nothing to fear, you are on the right track. Allah taala nay aap sey ab to bahout kaam lainah hain."

The expenses of the PM's house and secretariat averages Rs 75 lakhs per day. Compare this to the annual budget of Rs 40 lakhs for drugs and medicines for the casualty department of Karachi's main public hospital, Jinnah Post-Graduate Medical Centre. When the country's ministers are accused of being parasites, feeding on the blood of the people, they gaze heavenwards and murmur, "Allah maaf karey." Though Allah is Beneficent and Merciful, he does mete out justice in his darbar and there is no reason why any of our sinners should be forgiven. They will boil in oil.

Visiting the Domes and Turrets one day, I heard the sounding of an electronic gong. Fire? I asked. No, the prime minister has just left his palace and is on his way to fairyland. Roll out the red carpet, bow down and worship: Baa adab, baa mulahzah, hoshyar, Baadshah salamat aarahe hain."

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