Standing Against The Ridicule Of Armed Forces And Judiciary

Standing Against The Ridicule Of Armed Forces And Judiciary

This is a message for Independence Day by a son of this soil to various sons of the soil.

Since 14 August 1947, we have been celebrating our Independence Day with pride and gratefulness to Allah Almighty every year. The struggle of our founding fathers in the implementation of the ‘two nation theory’ is a golden chapter in our history. As a patriotic citizen, I can neither overlook nor forget their sacrifices and martyrdom for our bright future. Independent judiciary and strong armed forces are some of the most precious gifts to the people of this country for their safety and well-being. As a patriotic citizen, it hurts me to see our own people speak or act against these institutions rather than invoking prescribed remedies available under the law to address grievances.

Every year, when the month of August commences, we are reminded of the arrival of Independence Day through roadside stalls of national flags and souvenirs, television and radio programs, and even sales by various brands, followed by the vibrant social activity of people hanging the national flag on their cars and homes. The citizens of the country join hands with the leaders, public servants and members of the armed forces of Pakistan to celebrate this day of glory by taking part in ceremonies arranged for the occasion. Some of us choose to watch these ceremonies on television, while for some it is merely a holiday to chill out.

I have grown up in the Army Cantonment areas across the country and the nexus with the sentiment of defending the country from its enemies has been sown into my soul since the early days of childhood. The main engines of my inspiration have been my brave and graceful maternal grandfather who retired as a Lieutenant General and my workaholic father who retired as a Brigadier in the army. I have seen closely the countless sacrifices that our soldiers make and have been making in the line of duty – their motivation to guard the country against its enemies is impeccable. It hurts me when I see the educated class acting ignorantly in pointing fingers against the armed forces of Pakistan as it is extremely unjust to criticise the entire institution for the acts of some individuals. Such undue criticisms lead to lowering of morale of our heroes who sacrifice their comfort for our safety. If anyone commits high treason under Article 6(1), as a principal or accessory (aider and abettor) under Article 6(2) of the Constitution, that person can be held to be liable for high treason through due process of law only by courts constitutionally established and empowered to exercise judicial powers. This also conforms to the principles of the law of high treason, that principal and accessories are guilty of high treason likewise. Reference can be made to Sir John Friend Case (1688-1700) Holt’s Reports 681: 90 ER 1276, in which it was held that, “Whoever incites, advises, encourages, or is in any way aiding to such a multitude so assembled with such intent, though he does not personally appear among them, or with his own hands commit any violence whatsoever, yet he is equally a principal with those who act, and [are] guilty of high treason.” If personnel of the armed forces of Pakistan commit an offence, statutory remedies against them have been provided in laws like the Pakistan Army Act 1952, Pakistan Navy Ordinance 1961 and Pakistan Air Force Act 1953.

Similarly, if anyone has a grievance against a judge of the Supreme Court or High Court, a mechanism has been provided for in the Constitution. It is the Supreme Judicial Council which has exclusive powers to remove a judge of the High Court or Supreme Court under Article 209(7) of the Constitution. Under sub-Article (5), any person can move the Supreme Judicial Council against a judge of the Supreme Court or High Court for being incapable of holding office or being guilty of misconduct, upon which inquiry proceedings can be initiated.

The framers of the Constitution of Pakistan provided in the Preamble that in Pakistan “…the independence of the judiciary shall be fully secured”. There are judgments of our honourable apex court which hold that independence of judiciary forms part of the basic ideology of the Constitution. It is an offence for any person to target the decorum of the court and obstruct the administration of justice. The advocates have an additional duty to be respectful towards the courts under Rule 159 of the Pakistan Legal Practitioners and Bar Council Rules 1976 and failure to observe this canon of professional conduct constitutes professional misconduct, liable to disciplinary proceedings under Rule 175A of the aforesaid Rules. Even the freedom of speech enshrined in Article 19 of the Constitution of Pakistan is subject to reasonable restrictions imposed by law in the interest of 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”. It is a ground of disqualification under Article 63(1)(g) of the Constitution for a Member of Parliament to ridicule judiciary or the armed forces of Pakistan.

The slogans of independence of judiciary chanted by Mr. Ch. Aitzaz Ahsan and others echoed in my ears while I was in my first year of law school. Whilst the ‘lawyers’ movement’ has most certainly played a revolutionary role for the independence of judiciary, it has also been misconstrued by some as a licence to thuggery. We often hear news about unfortunate incidents of misbehaviour involving lawyers, which directly impedes the administration of justice. It has been said that lawyers have acted as foot-soldiers of the Constitution when a dictator and accomplices have violated the Constitution – the lawyers have come to the rescue of the independence of judiciary. Nowadays, the culture of lawyers going on strike has become so common that the delay in the service of justice has become inevitable. Often, political pressure groups boycott the courts’ proceedings, which disturbs the long standing harmonious relationship between the bar and the bench.

It gets more serious when slogans are chanted against the judiciary inside the courtroom.

“It is fundamental that if rule of law is to have any meaning and content, the authority of the court or a statutory authority and the confidence of the public in them should not be allowed to be shaken, diluted or undermined. The courts of justice and all tribunals exercising judicial functions from the highest to the lowest are by their constitution entrusted with functions directly connected with the administration of justice. It is that expectation and confidence of all those, who have or are likely to have business in that court or tribunal, which should be maintained so that the court/tribunal perform all their functions on a higher level of rectitude without fear or favour, affection or ill-will. Casting defamatory aspersions upon the character, ability or integrity of the judge/judicial officer/authority undermines the dignity of the court/authority and tends to create distrust in the popular mind and impedes the confidence of the people in the courts/tribunals which is of prime importance to the litigants in the protection of their rights and liberties. The protection to the judges/judicial officer/authority is not personal but accorded to protect the institution of the judiciary from undermining the public confidence in the efficacy of judicial process. The protection, therefore, is for fearless curial process. Any scurrilous, offensive, intimidatory or malicious attack on the judicial officer/authority beyond condonable limits, amounts to scandalising the court/tribunal amenable to not only conviction for its contempt but also liable to libel or defamation and damages personally or group libel.”

- U.P. Sales Tax Service Assn. v. Taxation Bar Assn., (1995) 5 SCC 716, para 11.

In re Nand Lal Balwani, (1999) 2 SCC 743, the Indian Supreme Court held that where an advocate shouted slogans and hurled a shoe towards the court causing interference with judicial proceedings and did not even tender an apology, he would be liable for contempt of court. It was observed by the bench of three judges who heard the matter that the law does not give a lawyer unsatisfied with the result of any litigation the licence to permit himself the liberty of causing disrespect to the court or attempting, in any manner, to lower the dignity of the court. It was also observed that courts could not be intimidated into passing favourable orders. Consequently, on account of his contumacious conduct, the contemnor was sentenced by the court to suffer four months of simple imprisonment and pay a fine of Rs. 2,000.

In Syed Mahmood Akhtar Naqvi v. Govt. of Sindh, 2015 SCMR 810, para 10, the licence of Mr. Ifran Qadir was suspended for habitual misconduct in the Supreme Court and a show-cause notice was issued to him to explain why he should not be removed from practice as an Advocate of Supreme Court.

Our honourable courts have shown judicial restraint in such matters upon issuance of an unconditional apology. In Abid S. Zuberi v. Khawaja Shams-uL-Islam, PLD 2016 Sindh 618, contempt proceedings brought against Khawaja Shams-Ul-Islam and Khawaja Saif-Ul-Islam for use of abusive and contemptuous language against a judge of the High Court were withdrawn upon the tendering of unconditional apology by the respondents and they were given a warning to remain careful in future. In The State v. Mumtaz Hussain Bazmi, Advocate, 1987 PCrl.LJ 452 [Lahore], contempt notices against respondents for chanting slogans against the judiciary were only dismissed on the issuance of sincere and unqualified apology.

As members of the bar, we have an overriding duty of standing up for the sanctity of courts against any such ridicule and defending against rogue elements that try to bring the legal profession into disrepute. In Vinay Chandra Mishra case, (1995) 2 SCC 584, criminal contempt proceedings were initiated by the court on receiving a letter from the acting Chief Justice of Allahabad High Court alleging highly contumacious conduct on part of Shri Vinay Chandra Mishra, a senior advocate, President of the Bar and Chair of the Bar Council of India, which not only tended to scandalize and over-awe the court but also lower its dignity in the eyes of the public. The court, accordingly, in exercise of its powers under Article 129 and  Article 142 of the Indian Constitution, sentenced the contemnor, Vinay Chandra Mishra, to undergo simple imprisonment of 6 weeks and also suspended him from practising as an advocate for a period of 3 years from the date of the order. The sentence of imprisonment was, however, kept suspended for a period of 4 years with the provision for activating the same in case the contemnor was convicted for any other offence for contempt of court within the said period.

If any member of the bar is found guilty of contempt of court through due process of law, and unless an apology is tendered and subsequently accepted by the court, that person shall undergo punishment prescribed under the law.

The law of contempt is not designed to safeguard judges but the judicial organ of the state itself. It was held by the United States Supreme Court that:

“The power to punish for contempt of court is a safeguard not for judges as persons but for the function which they exercise.”

- Pennekamp v. Florida, 328 US 331, 336 per Justice Felix Frankfurter.

Similar observations were made by the Indian Supreme Court:

“It would be only repeating what has been said so often by various Judges that the object of contempt proceedings is not to afford protection to Judges personally from imputations to which they may be exposed as individuals; it is intended to be a protection to the public whose interests would be very much affected if by the act or conduct of any party, the authority of the court is lowered and the sense of confidence which people have in the administration of justice by it is weakened.”

- Brahma Sharma , State of U.P. (1953) SCR 1169, 1176.

“…The public have a vital stake in effective and orderly administration of justice. The Court has the duty of protecting the interest of the community in the due administration of justice and, so, it is entrusted with the power to commit for contempt of court, not to protect the dignity of the Court against insult or injury, but, to protect and vindicate the right of the public so that the administration of justice is not perverted, prejudiced, obstructed or interfered with. The power to punish for contempt is thus for the protection of public justice, whose interest requires that decency and decorum is preserved in Courts of Justice.”

Delhi Judicial Service Assn. v. State of Gujarat, 1991 (4) SCC 406.

As a son of this soil, my tolerance is vulnerable against any verbal or physical attack on the judiciary and armed forces of Pakistan. For me, patriotism is equal to standing with our institutions which are performing sovereign functions. How do you do that? Certainly by not chanting slogans and uttering bitter words of ridicule against them. The wall of rule of law robustly stands against any ridicule of our institutions. Its strength comes from the blood of martyrs who stood in its defense and the living sons of the soil.

I call upon the members of the bar to stand against perpetrators who bring our institutions into ridicule. History teaches us that the silent lambs living in their comfort zones have not achieved much, if anything.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.

Asfandyar Khan Tareen

The writer is a Barrister from Lincoln's Inn and heads Tareen Barristers Chambers in Lahore. He can be contacted at ayk@tareen.com.pk



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