The law of contempt has broken down. It is time for us to reconsider it.
The phrase “contempt of court” covers a variety of situations. For example, it can refer to situations when a particular person or authority refuses to obey a court order. It can also refer to what is called “scandalising the court”.
Those types of contempt are not problematic. Everybody agrees that people should do what judges tell them because otherwise the judicial system would collapse. Similarly, everybody agrees that it is not a good idea to have litigants telling judges that their mothers used to wear combat boots (or words to that effect).
What is problematic is the idea that commenting on a pending case constitutes contempt. At one level, the concept makes perfect sense. People go to court to get justice and to have their disputes adjudicated. If their disputes are instead being thrashed out by the general public, then the purpose of adjudication is defeated. The concept makes even more sense in countries with jury trials. The idea behind a jury trial is that a person is tried by an unbiased group of his peers. If those peers are already convinced that the accused is a criminal, then there is not much point to the trial.
Pakistani courts have traditionally taken a very strict view of what constitutes contempt. This is in part due to their inheritance of the colonial conceit that it was good for the natives to be in complete awe of the barra sahib and not second-guess his views. However, that colonial relic remained alive until quite recently. For example, the Supreme Court held in the 1998 case of Masroor Ahsan that any comment on any pending case constituted contempt (other than a straightforward description of what was stated in court).
Till 2007, the Masroor Ahsan view prevailed unchallenged. The media tended to avoid discussing pending cases and when they did, they did so in very careful terms. All of this changed in connection with the removal and restoration of the Chief Justice. Suddenly the airwaves were full of expert views discussing the merits of his removal and opining as to whether or not President Musharraf was acting within the bounds of law. By the time the CJP was permanently restored in March 2009, the law of contempt seemed dead. Now anybody with an opinion on pending litigation could (and would) tell you what he thought.
The liberation of the media from the shackles of the law of contempt has been given further impetus by the new focus of the Supreme Court on public interest cases. The media and the Supreme Court now seem to be working in unison. Intrepid reporters probe the murky realms of scandal and come back from time to time with “shocking” stories. These shocking stories are presented to the public with the implied (and occasionally, express) request to the Supreme Court to step in. The same stories also get converted into petitions to the court. Once in a while the Court does indeed pick up a “scandal” for further review and the media then goes into paroxysms of approval, before going off to find fresh “scandals” and “scams.”
Let me make one thing clear: I have nothing against the media exposing scandals and I have nothing against the courts crucifying those found guilty. However, this dynamic places an incredible burden on both the media and the courts to act responsibly. And I am not sure that the burden is being met.
The first problem with the media is that there is no market for self-criticism of the media, at least not as compared to the dramatic joys of finding scams and scandals. Given the fact that we have no law of libel in Pakistan (at least, not for any practical purposes) the only constraints on the media are those that it chooses to recognise. And self-regulation does not work for the media any better than it works anywhere else.
The second problem with the media is that since there is an institutional bias in favour of sensationalism, the dice is always loaded against the person accused. Even if an accused denies his guilt, the sentence is likely to begin with the phrase, “the accused in the megabillion XYZ scam.” Damned if you do, damned if you don’t.
It is at this stage that the law of contempt comes in. The only way that an accused can defend himself against charges is by explaining precisely why he is innocent. But if he does that in the media, he is guilty of contempt (at least under the law as it now stands).
The combination of an overzealous media and an archaic law of contempt produce a Hobson’s choice for litigants facing trial by media. If they fire back in the media, not only do they perpetuate the claims against them but they face possible contempt charges. On the other hand, if they keep quiet, the general public becomes convinced that they are indeed crooks, so much so that their eventual exoneration becomes irrelevant.
In my view, the solution to this problem is not to force the media back into the old days of avoiding all comment on pending litigation. While that may sound good in theory, those days are long gone. Pakistan is blessed with an activist and fearless media and we need to make the most of it. Similarly, the solution to the problem does not lie in asking the courts to refrain from examining issues of public policy. As in the case of the media, Pakistan’s judiciary is both active and fearless. And I would much rather have the occasional miscarriage of justice than a return to the days of a rubber-stamp judiciary.
What then is the solution? In my view, the solution lies in loosening the boundaries of the law of contempt, at a minimum in relation to public interest litigation. If issues are going to be tried in the media simultaneously with the courts then the least we can provide those accused of crimes is an opportunity to defend themselves. What is not tolerable is the current situation where the only voices heard are self-appointed guardians of the public interest. Let those accused by the media be free to respond in the media as well as before the courts.
There is also one final aspect of this problem to consider. People are generally aware that a free media is a new phenomenon in Pakistan and that it must be nurtured, even at the cost of suffering the occasional excesses. What people need to realise is that a crusading judiciary is also a new phenomenon in Pakistan. As in the case of the media, an independent judiciary is one of the most vital guarantees of our freedoms. Over time, both institutions will learn to regulate their powers. Till then, we may have no option but to wait. However, reviewing the contempt law would certainly help.
This column appeared first in the daily Pakistan Today on 1 February 2011.