- 10 Mar - 16 Mar, 2018
CONTEMPT LAW: DIFFERENT INTERPRETATIONS DESPITE COMMON ROOTS
- 02 Sep - 08 Sep, 2017
- London Eye
Watching Pakistani television from afar, it is quite striking how often the term ‘contempt of court’ features in discussions and in the columns of op-ed pages. Much of Pakistani law was written down by the Brits and the concept of ‘contempt’ flows from their writings, as well. But here in England, the concept seems to have developed quite differently from what it has in Pakistan.
Basically, just like cricketers earn their respect by their performances on the field of play, so too judges earn – or lose – their respect by their judgements. And it must be fair to criticise them when a judgement, on the face of it, has as many holes as a colander. Above all else, the judgement must be seen to be free of political bias, and in the benefit of society in the long run and equally, any reaction to a judgement must also be free of political bias.
In a polarised society, that is, sadly, seldom the case. Even here in England, when the High Court ruled that the government could not invoke Article 50 of the Lisbon Treaty signalling its decision to leave the European Union, without the assent of Parliament, there was a mother and father of a noise created over it. One extreme right wing paper which was an avid supporter of Brexit, came out with a picture of the judges and a caption above the picture denouncing them as ‘traitors’. It implied, very openly, that in giving their judgement the judges had gone against the wishes of the people and chucked democracy into the dustbin. It was all very emotive stuff and if it did not amount to ‘contempt’, it is difficult to see what does. The judges had interpreted the law as they deemed fit and had ruled that Parliament was supreme. There was widespread condemnation of the piece, including from a very pro-Brexit government, but for all that it was never a serious contention from any side that the paper should be hauled up for contempt. In the event, it made no difference. Parliament under a Tory majority and a Labour leadership that is hazy over Brexit, passed the Article 50 resolution by an overwhelming majority.
That shows up one aspect of democracy in Britain that is very different from the concept of democracy in Pakistan. It seems to be the case in the latter that since there is a law for contempt, it should be invoked pretty much whenever the law is deemed to have been violated. Over here the fact that the law exists only gives the judges the right to use it. This does not mean that because they have the right, it is, therefore, okay for them to use it whenever they please so. Concepts have changed over the years. When the law was framed, the right to freedom of speech was perhaps not considered as sacrosanct as it is today. What it all means is that a legal right to do a thing or do the right thing are by no means synonymous and that is how the judgement against Nawaz Sharif would be seen in a British context. One simply cannot imagine a British Prime Minister, commanding the overwhelming majority of the House, being dismissed by the judiciary because he or she had failed to reveal a ‘receivable asset’, one not actually received. The discussion in Pakistan seems to be around the question whether or not this was legally justified and correct, and whether the definition of ‘receivable asset’ as used in the judgement was incorrect and whether the honourable judges should have relied on the definition in Pakistan’s own income tax laws rather than a foreign dictionary. Over here, that would never have been the issue. Here the issue would be whether, irrespective of the correct definition of ‘receivable asset’, should a prime minister be dismissed on these grounds? I cannot imagine anybody answering that question in the affirmative given the political value system prevailing in this society.
All of which brings us to the question of rule of law.
The rule of law is vital to a democracy, but only if the law is applied in such a way that its fairness and justness, as well the need to apply it in the way it has been applied, are all immediately and patently visible. When that is not the case, the opposite purpose is served. There is no law in the world that can be impervious to wrong interpretation, or an interpretation that does not serve the purpose with which the law was framed, and the only safeguard to such an interpretation is the minds of those interpreting it. These minds must not only know the law, they must also have the ability to see the overall picture and the spirit of the law and how best their judgement serves the interests of their society. It is on this level that one finds the decision against Nawaz Sharif so perplexing. It is difficult to see how an omission that would not even have brought a prosecution for tax evasion, can possibly be good enough to sack a prime minister. It would never have happened over here, which of course, does not mean it should not have happened in Pakistan. It only shows how different the values are in the two societies as reflected in the development of their respective legal cultures.
Perhaps in the end, it is a matter of political, legal – and journalistic – evolution that decides all these matters. But evolution, as Brexit and election of Mr Trump as the US President have so clearly shown, is not a development that always propels forward. It is perhaps like a stock market graph that rises and falls, and one can only hope that in the long run, it will rise.
- 03 Mar - 09 Mar, 2018
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