Scandalising the Pakistani Courts

The General is having a bad day at the terrorist courts in Karachi.Nawaz Sharif is staging a fast come back.General feeling is that army top brass will let Gen.Musharraf take the blame since he and most of his top people are from Mohajir community.In one clean sweep many prominent Mohajirs would be removed and charged with treason.The penalty for such a take over is death and people now in top positions will be considered accomplices.One indication is total command of former IG Rana Maqbool charged with Nawaz Sharif.He is being saluted by police and moves freely when he is brought to court.After Altaf Hussain this is another leader who will set the Mohajir Community back by many decades.The Mohajir Interior Minister seems to have no control over police.During Zia Ul Haq martial law there were several generals visibly with Zia.This time it is just Musharraf with a few of his own kind.This is a bigger plot that initially imagined.Ilahi Baksh Soomro who had promised not to file a writ in return for his brother getting a berth in Sindh Cabinet has suddenly changed his posture and gone ahead with the writ.There are winds of change now gathering momentum and I see no ray of hope for the General.There has hardly been any recovery and all the campaign has produced is more enemies for the General.This certainly does not look good for Musharraf.

I am sorry but I do not agree with your description of Mr.Cowasjee.He is neither the most respected nor the most impaccable.To many in Pakistan he is an agent of the armed forces and acts covertly to undermine democtatic institutions and governments. He pokes fun at Islam and is known to have mosques demolished on the pretext that he was trying to have building laws implemented.Laws that made himself by imposing himself on Karachi Development Authority.He asks Pakistan to give up Kashmir and pursue friendship with India.People in the shipping industry are well versed with favours obtained by Cowasjee and his family to further their business interest.He feigns to be `` holier than thou`` and thus feels he is free to cast aspersions on all and sundry.In the matter of case under discussion he committed the same crime for which he has been demanding action against Muslim League and Nawaz Sharif.How can you distinguish between one contempt and other and lead us to beleive that Cowasjee can go ahead and insult the courts but Muslim League cannot.In the case of storming the court we all know how Sajjad Ali shah on the instigation of Farooq Leghari was trying to over throw an elected government.The present government too has kept itself clear of Sajjad Ali Shah inspite of his pleadings to make him chief of accountability bureau.Now he is slowly starting to wage a campaign against General Musharraf.So much for the man that Cowasjee supports.

In response to Fidel (Reply #: 46)

Dear Fidel:

In your Reply #44 your wrote: ``Musharraf`s takeover is really an attempt by army to prevent its downsizing.``

Comment: You may very well be right. The army-bureaucracy alliance has historically been struggling to consolidate its power at the cost of the development and welfare of common people in Pakistan. For good summary, see Hasan N. Gardezi (1998). The Failure of Capitalism in Pakistan. Journal of Contemporary Asia, Vol. 28, No. 3, pp. 310-326. This article also provide an understanding of Pakistan`s dependent development vis a vis the role of Pakistan`s neo-colonial militarized state. Gardezi, in short, has argued that the contemporary crisis of Pakistan is in fact the ensuing crisis of its deeper integration in the global political economy as a neocolonial formation. I think, this neocolonial formation is currently dominated by the army-bureaucracy-bourgeoisie alliance. Pakistani politics has essentially been an intra army-bureaucracy-bourgeoisie conflict without much concern for the common people. Do the people of Pakistan realize that this alliance rarely works in their interest?

Now in Reply # 46, you seem to be concerned over the powerlessness of the judiciary. This indeed in a matter of great concern. State apparatus (administration, courts, assemblies, and the army) will remain in the hands of usurpers as long as it fails to derive its power from the common people of Pakistan.

As democracy never truly existed in Pakistan, I am prepared to accept a temporary undemocratic government that promises to get Pakistan out of its difficulties. Hence, rather than criticizing for criticism sake, we need to get the best of the current arrangement. As citizens of Pakistan we need to worry more about our citizenship and human rights, while our institutions need to play their role and seek our support. The people of Pakistan need to empower themselves by demanding their rights and good governance.

Sincerely, Bilal Ahmad

- They are putting growing numbers of people on ECL i.e. the exit control list. The judiciary is beginning to get exhausted and wary. So no relief is expected. Depends on how monstrous this regime will eventually get before it gets devoured.

- You see we should consider putting up to put up with this corrupt judiciary rather than pave the way for a Pol Pot type of character who may just be readying to come out of the woodwork.

- To Bilal Ahmed - suggest you focus on the economic crisis in Pakistan that is being precipitated. The judiciary is being rendered

powerless to defend the country against this onslaught.

In response to Fidel (Reply #: 44)

Dear Fidel:

Well said! But, it is against the grain of our people, and more importantly, against our privileged class (including the judges) to opposed the ruling elite. What you are asking requires a lot of courage, honor, integrity, and a sense of justice. Aren`t you expecting too much?

Sincerely, Bilal Ahmad

ONCE AGAIN

The Pakistani supreme court is once again in that position where it has to decide whether the armed forces were justified in trashing the constitution .

I just wonder if the pompous old goats can just call General Musharraf in the court and tell him that his takeover is illegal and his trashing the consitution is unacceptable. He will probably arrest the judges and dismiss them but at least the world will see the muck this country is all

about.

Musharraf`s takeover is really an attempt by army to prevent its downsizing.

Fidel

Somehow people of stature in both India and Pakistan look upon criticism as a personal insult. Not many people can take it in their stride. Maybe it is because people in public life are of lower and lower quality.

Letter Faxed to Chief Justice Pakistan Supreme Ct

on Nov 2nd (0092 51 9213452), Copy also sent to Dawn. Copy also e-mailed to The Friday Times on Nov 7th following spineless non-publication by Dawn on the issue in question.

The Honorable Chief Justice

Supreme Court of Pakistan

Re: The Pending Ardeshir Cawasjee Contempt of Court Case in the Supreme Court of Pakistan

Honorable Chief Justice Saeeduzzaman Siddiqui,

I would like to express my deep concern to you and the other members of the Supreme Court of Pakistan, with regard to the prosecution of the case against Mr. Ardeshir Cawasjee who has been charged with committing Contempt of Court for his statements on public television regarding the judiciary.

Doubtless, defense Counsel for the alleged Contemner will ably argue the finer legal points and case law on the immediate issue of the contempt law in Pakistan, however, I would like point out a few salient facts which will in all likelihood not be argued before the court, for your kind consideration in this case before a decision is reached. No Amicus Curiae brief filed before the court is likely to contain them as being adjudged pertinent on the issues of law in question, yet they cannot be ignored in a matter such as this, even though each case must be decided on its own merits. They are the real, unspoken, heart and soul of the case.

Mr. Cawasjee is alleged to have brought the judiciary into, `public ridicule, contempt, and hatred.` I submit to you Honorable Chief Justice, that the judiciary itself is in large measure responsible for bringing about this state of affairs, and undermining its moral authority, not Mr. Cawasjee, by any stretch of the imagination. I also submit to you Honorable Chief Justice, that the politicization of the judiciary is the root cause of the `public ridicule, hatred and contempt,` in which the judiciary is held in Pakistan today.

It is a publicly well known allegation of fact in Pakistan, that the former Chief Justice, Sajjad Ali Shah`s ouster from the bench was politically instigated by then P.M Nawaz Sharif, through the deeply suspicious presence of now President of the Republic, Rafiq Tarar, in Quetta. It is also in connection with this matter, of some interest to note that only recently has the former Chief Justice been recognized as such in the court, as ever having been so. Apparently for quite political reasons, former Chief Justice Sajjad Ali Shah had become persona non grata to the point where his services to the nation were to be simply expunged from the history of this court, in an attempt that smacked deeply of historical revisionism reminiscent of the former Soviet Union, to rewrite politically sensitive portions of history in a biased, one sided perspective or ignore them entirely.

On Oct 23rd, 1999, former Chief Justice, Sajjad Ali Shah is quoted in Dawn (Oct 24th edition) as having demanded a, ``ruthless accountability of all corrupt, dishonest and bad reputed elements in judiciary ....``. The clear implication being that, ``such elements`` exist. That is exactly the way I would characterize Mr. Cawasjee`s statements, taken in context, for which he has been charged with contempt.

It is equally a fact that the Supreme Court`s failure to punish those who stormed its premises, despite clear and incontrovertible evidence; MNAs, MPAs, PML Party Workers, all at the behest and urging of a prominent Senator and former P.M, who were also never found guilty of contempt of court, or inciting contempt of court, led directly to the level of low public esteem in which the courts are currently held today in Pakistan and elsewhere. That justice must not only be done, but be seen to be done, is an old and tested legal maxim. When justice is not seen to be done, that creates the climate of a lack of judicial legitimacy, from which the courts are suffering today in Pakistan. Justice is supposed to be blind, but in Pakistan it has been conveniently deaf and dumb as well, on many notable occasions in the past.

Hence, Mr. Cawasjee could not possibly have brought the courts into, `public ridicule, hatred and contempt`, because quite bluntly and truthfully stated, that is what public opinion already held the courts of Pakistan in, prior to Mr. Cawasjee`s statements on public television. Therefore, Mr.Cawasjee cannot be logically found guilty of facilitating a state of affairs which already existed unless the court insists on the legal fiction that this state of affairs, did not exist a priori to Mr.Cawasjee`s public statements. Nor, should he be adjudged guilty of contempt of court for stating his opinion of the truth publicly. Any representative, impartial judicial finding of fact, would only confirm the sad truth of what the citizens of Pakistan think about the courts, as expressed by Mr. Cawasjee publicly.

It is for the courts to change their historical notions of political expediency with which they have long bowed to the prevailing political winds, and assert their complete judicial independence from political pressure. Only then can the courts raise the level of public esteem and respect for the judiciary in which they are sadly currently held, that is a matter of right in other countries, by setting high ethical standards.

I note that now that the government of former P.M Nawaz Sharif has been dismissed, the contempt cases against him which should have by now been res judicata, are quite possibly in the process of being resurrected through an appeal. If this is not the perfect example of shifting with the tides of political changes in power, i do not know what would serve as a better example.

Furthermore, I would like to remind this court that political speech, discourse, and opinions are generally universally held, in societies where the rule of law prevails, to be the most highly protected form of speech. To cite one example, the Mayor of New York, Ed Koch in the 1980s on many occasions referred to the judiciary in the U.S as corrupt, according to my Criminal Law professor in New York. However, there were never any cases brought against him for contempt of court. The current mayor of New York City, Rudolph Giuliani has repeatedly bitterly criticized Federal Court decisions publicly, and has never faced contempt of court charges either. The exotic variety of Contempt of Court known as, `Scandalizing the Court`, has long been out of vogue in Great Britain, since 1931, and never took root in the U.S (cited derisively in a 1941 U.S Supreme Court Opinion). In Australia in the early 1980s there was a public furor when it was used to convict someone, because of free Speech concerns.

I sincerely hope that this court will not impinge on free speech rights by deciding against Mr. Cawasjee in this matter. It would send a chilling message to public interest advocates of legal reform in Pakistan, of which there is no doubt, Mr.Cawasjee is a leading advocate. And that is most certainly by any standards political speech, and therefore speech that deserves the highest level of protection, given the fact that the issue of judicial reform is a legitimate political subject of public discourse. The legal standard for examining political speech does not generally allow the content of that speech to be the subject of judicial scrutiny. The reason for this is self evident. If judges start examining the content of political speech, they will start to imposes their own personal preferences by favoring and disfavoring certain kinds of speech. Freedom of speech is one of the absolute pillars of a democratic society, and should know few, if any qualifications beyond public safety concerns. One well known example of unprotected speech is yelling, `Fire` in a crowded movie theater, because this would lead to a stampede which has the potential for causing injury to members of the public.

Given the fact that Mr. Cawasjee is a much easier target to prosecute for the same alleged offenses that others have escaped effective prosecution for in the past, it is clear that the legal principle of equality before the law is yet another troubling issue in the prosecution of this case. The public does not have such a short term memory as to have forgotten the Nawaz Sharif contempt case, and the subsequent half hearted investigation into the storming of the Supreme Court that followed, not to be able to adjudge quite easily that different legal standards apply for powerful, politically influential persons when they appear before the courts. It is this appearance of impropriety that has most seriously damaged the courts judicial legitimacy, and brought them into, `public ridicule, contempt and hatred.` The administration of justice must be transparent, and even handed, as must equality before the law, and equal treatment by the law, of all those who are commanded to appear before the courts of the land. The Court`s search for judicial legitimacy, for all courts depend in some measure upon public support to back their decisions, manifests itself clearly in the case against Mr. Cawasjee, and for this reason is almost a poignant attempt in the eyes of the public for the court to reassert its moral authority. Poignant, because when it was politically expedient for the court, other contempt cases, earlier in time, were not diligently prosecuted.

The judiciary and the courts must be completely autonomous from the political system in Pakistan in order to escape the brush and even the imputation of corruption from which the other institutions of the state have been tarred. Mr. Cawasjee clearly expressed the political, Constitutionally protected view that the judiciary had been tarred by the politicians in Pakistan. If the Contempt of Courts Act 1976, is in conflict with the (suspended) Constitution`s basic guarantee of free speech rights to citizens, which you may well find to be an issue in the case, I urge you to strike the law down rather than set a chilling precedent for limiting political speech clearly within the ambit of protected speech.

Respectfully,

OMAR MIRZA

My N.Y Address listed

USA

OMAR1974@aol.com

I`m glad somebody posted the fax number because I tried posting it here a couple of days ago, and for some reason it does not seem to have gone through.

Mr. Cowasjee had replied to me over the weekend saying that anyone who wanted to help could fax the Supreme Court about the case.

Here is a letter I sent to a couple of mailing lists which I hope could serve as the basis for an email campaign. The court resumes deliberations on the 8th, so it would be good to pass this around as soon as possible.

Regards,

Rohan.



On October 26, 1999, Pakistan`s most popular columnist, Ardeshir

Cowasjee, who writes a Sunday column for the daily newspaper Dawn,

pleaded not guilty to charges of contempt of court arising from

critical remarks he made about the judiciary on a television

programme. The court adjourned until November 8.

Mr. Cowasjee is charged with ``scandalising the court``, an old English

common law principle that forbids any criticism of courts or judges.

This principle is enforced in both Indian and Pakistani law, but has

never existed in the US and has not been used in the UK since 1931.

The Supreme Court of Pakistan in Islamabad can be reached by fax at

+92-51-921-3452. Please make your voice heard for the cause of

journalistic free expression in Pakistan by faxing the Chief Justice

of Pakistan, Saeeduzzaman Siddiqui, at that number, and protesting the

framing of charges against Mr. Cowasjee for making legitimate

criticisms of the corruption and subversion of the Pakistani judiciary

in recent years. Please note that you may have to try several times

before the fax connection goes through.

For more information, please see:

1. The Dawn report on Mr. Cowasjee`s indictment:

``http://www.dawn.com/daily/19991027/top12.htm``

2. Mr. Cowasjee`s columns on Dawn:

``http://www.dawn.com/weekly/cowas/cowas.htm``

3. An article about Mr. Cowasjee from Zameen magazine:

``http://www.zameen.com/zameendec98/personality.htm``

4. The law under which Mr. Cowasjee has been charged:

``http://www.stanford.edu/group/pakistan/pakistan/legislation/1998/ord_X.html``

I am reminded of the line from Shakespere ...

``First we should kill all the lawyers `` :)

Greetings all:

I am glad that there is some discussion on CHowk about this unfortunate event.

I have Faxed the following letter to the Chief Justice of Pakistan.

The Fax number is:

country code: 92

city code: 51

fax: 9213452

so from US, you will dial 0119251-9213452

Please send as many faxes as possible to help save free speech and independent judiciary in Pakistan.

----

To,

Honorable Justice Saleem-Uz-Zaman Siddiqui

Chief Justice of Pakistan

Supreme Court of Paksitan

Respected Sir:

My name is ( *@$

Rohan,

Your loaded remark about another chowkwala suggest that you are a more than five munute legal expert, you could be knowledgable, i accept it. Here is a question from the ignorant, just to learn.

Constitution is the supreme, it creates the legal system, the legislature and the executive and defines the domains for their operation. When the constitution is trashed (ignorant word for held in abeyance) the courts have no mandate to operate. So can it be possible that all these niceties you are talking about is really taking place in a cuckoo court.

Is it possible that general PM is planning a referundum because another cuckoo said that after all constitution is the people of pakistan.

It should not take much of your time, if you are a real ...

In reply to Mr. Oberoi :

In the context of the creation of many illiberal laws in Pakistan, that one of them should have a colonial precedent is not very relevant. In the context of a contempt of court case in Pakistan, dragging India in is India-bashing.

-arun gupta

Dear Chowkwallas:

On April 30, 1999, Najam Sethi delivered his famous speech at Indian International Center, New Delhi. In his speech, Sethi identified six major crises facing Pakistan. These are: (1) the crisis of identity and ideology; (2) the crisis of law, constitution and political system; (3) the crisis of economy; (4) the crisis of foreign policy; (5) the crisis of civil society; and (6) the crisis of national security. Here is what he said about the crisis of law:

``The crisis of law, constitution and political system refers to the fact that (a) there is not one set of laws in Pakistan but two - the Anglo-Saxon tradition which we inherited from the past and the Islamic tradition which we have foisted in recent times. Most Pakistanis are trained and experienced in the former but some Pakistanis hanker for the latter. The two traditions co-exist in an environment of fear, corruption and hypocrisy. Increasingly, they seem to be at serious odds with each other, as for example on the question of how to treat interest rates in a modern capitalist economy, what status to grant to universal human and fundamental rights, how to treat women and minorities; etc. (b) The crisis is also reflected in the nature and extent to which the constitution has been mangled by democrats and dictators, lawyers and judges, all alike. The reference here is to several highly controversial constitutional amendments, past and pending; but it is also to highly contentious, even suspect, decisions by the courts acting as handmaidens to the executive; and to the motivations and actions of certain judges in pursuit of personal ambition, pecuniary gains or political advancement. Indeed, many lawmakers do not obey the law and some of our judges are perceived in contemptuous terms by the public. (c) The crisis is manifest, above all, in the rapid public disenchantment with the political system of so-called democracy. Democracy is supposed to be about the supremacy of the law and constitution, about the necessity of checks and balances between the different organs of the state, about the on-going accountability of public office holders, and so on. But it has degenerated into a system based exclusively on elections which return deaf and dumb public representatives to rubber stamp parliaments. So we have the form of democracy but not its essence or content. We have the rituals of democracy but not its soul. I don`t know what this system is, but it is certainly not democracy.``

On this slightly peripheral thread about the differences between law in India and in Pakistan:

Arun Gupta sets up a classic straw man argument (viz. that ``had the British removed the law before they left, that Pakistan would not have such a law today``). He proceeds to knock this straw man down with a ``5 minute web search``.

India and Pakistan have both updated their laws (as everyone knows -- to suggest otherwise is to set up a straw man) since 1947.

However, they have done so in the context of the same corpus of colonial law. If Mr. Gupta had done more than 5 minutes of web searching, he would have found:

1. The text of the Indian Contempt of Courts Act, 1971 (available at ``http://caselaw.delhi.nic.in``).

2. The text of the Pakistani Contempt of Court Ordinance, 1998 (available at ``http://www.stanford.edu/group/pakistan/pakistan``).

Comparing these with regard to the notion of ``scandalising the court`` brings up:

CCA, 1971: 2(c): ``criminal contempt means the publication ... of any matter ... which -

(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court``.

CCO, 1998: 2(d): ```Judicial contempt` means the scandalisation of a court and includes personalised criticism of a judge while holding office``.

It is evident from these examples both that the Indian and Pakistani laws currently in force have roughly the same notions of ``scandalising the court`` and both use the term ``scandalise`` as a primary legal concept without defining it.

This ``explodes`` any contention that the notion of contempt of court can be understood only with reference to the legal history of Pakistan since 1947.

If Arun Gupta believes that this law has anything to do with Zia`s Islamisation attempts (rather than with Pakistan`s heritage in English common law as practised in British India prior to 1947), then I challenge him to tell me from which Islamic legal doctrine the notion of ``scandalising the court`` was drawn, and how it came to be introduced into the Indian Contempt of Courts Act, 1976.

Similar arguments and research may be adduced concerning the concept of ``preventive detention``.

In sum:

1. The notion of ``scandalising the court`` derives from English common law.

2. India and Pakistan inherited it from the British Indian legal system, and have chosen to retain it in their current laws.

3. Criticising the existence of this unjust law (which exists in both India and Pakistan) in no way amounts to India-bashing.

Sincerely,

Rohan Oberoi.

Chowk Staff:

I support Syedha`s request for a poll. We need to give a clear message to those unpraiseworthy ruling elites who have long deprived the people of Pakistan from their fundamental rights of freedom and justice. Isn`t the Pakistani judicial system also a part of our plight? Judges, please wake up and serve justice.

Sincerely, Bilal Ahmad