Journeys to democracy

In his article ‘A judge’s armour‘ (The Friday Times, July 20-26, 2012), advocate Chaudhry Faisal Hussain discusses the issue of contempt of court in the context of the current political system in Pakistan. “The best shield or armour of a judge, he writes, is his reputation of integrity, impartiality and learning. An upright judge will hardly ever need to use the contempt of court power in his judicial career,” he writes, quoting Justice Markandey Katju, the retired Indian Supreme Court judge who currently heads the Press Council of India.

Noting that the law of contempt in Pakistan has been used for political and judicial meandering, Hussain explains that “the parliament introduced a new Contempt of Court Act of 2012 wherein it has enacted lengthy procedures to counter the rapid approach adopted by the Supreme Court in the Gilani contempt case. It is a settled principle of law that the superior courts being the courts of record possess inherent powers of contempt of court that cannot be taken away by any legislation. Therefore the courts are constitutionally bound to adopt the procedure and punishment for the contempt provided in the subordinate legislation.”

Hussain was a member of the Attorney General’s team in the recent case where the judges opted to discard the new Contempt of Court Act, that while imperfect, provides a uniform definition of contempt of court. During the hearing, the learned Attorny General cited Justice Markandey Katju’s judgment State of Andhra Perdesh Vs P. Laxmi Devi and dilated on the critical points that Justice Katju has discussed in his judgments. “Unfortunately, the judges sat with pre determined mind and adjudicate upon the cause politically instead,” he wrote, in in response to an email from Justice Katju appreciating his article.

Justice Katju’s response:

I am deeply disappointed by your Supreme Court. I only wish your Attorney General had raised the objection of bias right at the beginning of the case. Although ordinarily the respondent’s counsel argues after the petitioner’s counsel, when the respondent has to raise a preliminary objection his counsel should raise that objection before the petitioner’s counsel argues.

When the case fixed for 8th August begins before the bench presided over by Justice Khosa, the Attorney General should file a written objection of bias and also raise an oral objection of bias against the Judges who appear to be biased straightaway even before the petitioner’s counsel begins arguing.

I may reiterate that the law of bias is not merely that the Judge should not be actually biased, he is also disqualified from hearing the case if there is reasonable apprehension of bias of the Judge in the mind of the litigant, even if the Judge is not actually biased. You will find this settled legal position in all commentaries on natural justice, which should be cited before the bench on 8th August.  In my opinion,many of the Judges in you Supreme Court are clearly biased, and therefore should recuse themselves from hearing such cases

Regards
Justice Katju

Excerpts from email exchange between Justice Katju and Faisal Hussain, reproduced with permission.

Filed under: Pakistan | Tagged: Contempt of Court, Justice Katju, Pakistan |