Feisal Naqvi is a Supreme Court lawyer based in Lahore. His firm, Bhandari, Naqvi & Riaz, specialises in Constitutional litigation. Naqvi has also taught Constitutional Law at a private college. On July 21, 2012 the Herald has invited him to a live discussion about the evolution and practice of contempt of court laws in Pakistan.

On July 21, Saturday, the Herald invited Feisal Naqvi for a live online discussion about the political theory behind contempt of court. Following is an edited version of the discussion.

Sultan: Can you explain to me what exactly does contempt of court mean?

FN: There are different types of contempt. One type of contempt means to be rude to a judge; for example, by calling him names. Another type of contempt is to refuse to obey a court order.

Habib: Last month, the contempt of court law was passed. How does this change Pakistan’s judicial and political landscape?

FN: The new law does two things that I am aware of. The more important thing is that it says that the President, the PM and Federal Ministers will not be liable for contempt if they are doing something which they think is part of their official duties. The second thing is that the new law changes the process of determining contempt and makes it slower.

M Ibrahim: I feel that the CJP can do anything. He makes political speeches on a daily basis. He has already expressed his opinion on Contempt Law and threatened to strike it down before the case has come up for hearing. What is your opinion on this?

FN: The CJP is bound by law like everybody else. I have not heard him express his opinion that clearly on the contempt law (and I would be surprised if he had said something like that). Quite often, stuff like this gets misreported or misinterpreted

Muhammad Faryad: While many liberals are bashing SC and its Judges for their supposed judicial-overreach and most of the conservatives are dreaming of the day when the court ousts the President of the Islamic Republic for shepherding an the government, what side (SC or Gov.) do you think has the potential to do more lasting-damage to the prospects of a prosperous future of this beleaguered country? A government that is setting an example of defying courts or a court that is becoming an executive?

FN: Both options are not good. However, a government that seeks to insulate itself from judicial oversight is fundamentally more dangerous. The “judicial overreach” is slowing down and will taper off. but if our laws recognise that executive officials are untouchable, then we have a much bigger problem.

Muhammad Faryad: What do you think is the role of lawyers to tame down the judiciary now? Should there be another lawyers’ movement now to tell the SC that if lawyers can stand against a military dictator, they can also stand against a judicial dictator?

FN: I think lawyers need to concentrate on their professional obligations and leave politics to the political parties. the 2007-2008 lawyers movement was a unique event and it would be better if it was kept that way. So far as the judiciary is concerned, it is quite sensitive to what the lawyers think but that is not necessarily such a good thing. The lawyer’s community likes to think of itself as the saviour of this country and that can cause people to think that they can act as they please. this in turn leads to individual lawyers misbehaving with state authorities which is also not a good thing. So, the best thing is for lawyers to channel their political feelings into political parties and not use law as a battleground for politics.

Freddy: If criticising politicians is free speech, why is criticising the judiciary “contempt”?

FN: Politicians and judges have very different roles. Judges don’t get to defend themselves the way politicians do because politicians get to answer back. Judges have to sit quietly and listen to criticism. In consideration for this fact, societies agree that judges need to be treated with some degree of deference. The issue though is to what degree. many of our older provisions about “scandalising” the judiciary come from a colonial era where deference to the state was a much bigger deal. These types of offences are not really enforced in the rest of the world where people freely criticise the judiciary. At the same time, Pakistani courts have — at least over the past few years — not been particularly sensitive in this regard. people say all sorts of stuff about the courts and judges and 99% of the time, judges say or do nothing. What is at stake in the NRO case is not freedom of speech or ridiculing the judiciary, but the fact that the government simply doesnot want to obey a direct order of the S Ct.

Raza Wazir: My Q is that whether Mr Naqvi sees the intense political machination and dependence of political parties on judiciary to resolve their issues and set off their scores through judiciary as the cause of excessive contempt of court notices?

FN: Not really. Most of the contempt hullaballoo has to do with one case — the NRO case. There have been other instances as well, perhaps more than in the past, but that is because we have such an active (and activist) court. However, but for the NRO issue, no one would care about the contempt laws.

Aalee: Do you think the SC will strike down the contempt bill on 23 rd July?

FN: The Sc will not strike down the whole act; at best, certain provisions will get struck down. the one provision which is most likely to get struck down is the provision giving immunity from contempt to the PM, the President and ministers. That provision is clearly unconstitutional (at least so far as I can see). this is because there is a separate contempt provision in the Constitution, and I don’t see how that constitutional provision can be negated through an act. laws which are contrary to the constitution are invalid. Sorry, there is a separate provision in the Constitution dealing with contempt (Art 204).

Shuja Haider: Does the Supreme Court have the authority to remove an elected representative on contempt of court? I thought the SC worked as an sub-ordinate of federal government. Was I misguided? Can a judge remove a person who once selected the judge himself for him job?

FN: Woah, multiple issues there. First, the SC is not a subordinate of (or subordinate to) the Federal Government. The judiciary as a whole is one of the three branches of government (judiciary, legislature, executive). In terms of removing (or disqualifying) an elected representative, the situation is somewhat complicated. Art 63 of the Const seems to indicate that any question regarding disqualification has to be referred to the Chief Election Commissioner by the Speaker. However, in YRG’s case, once the Speaker refused, the SC went further and decided that YRG was disqualified and did not refer the matter to the CEC. That non-referral to the CEC is debatable.

Fouzia: I do not understand. If there is a contempt of court law which can force a prime minister to resign, then why is there no contempt of court law for the parliament? I would think that parliamentarians need it much more. What do you think?

FN: There is a contempt of court law for everyone, including parliament. If an MNA is found guilty of ridiculing the judiciary, then that MNA would be disqualified too (just like YRG).

Aysha: What do think will happen next in this battle between the judiciary and the government? Will one come out a winner or will they both end up destroying each other?

FN: I’m not sure, but I’m worried. This new law is cleary unconstitutional and should be struck down, at least to the extent that it seeks to give immunity from contempt to the PM etc. At the same time, I think the SC should quit flogging a dead horse and inform the Swiss authorities itself. The current impasse only serves to embroil the SC in politics. You now have a situation where supporters of one party openly campaign against the judiciary, and that is really sad. The judiciary should not be so politicised.

Moonis: What is your opinion about the petition filed by Hamid Mir and Absar Aalim? Is it not waste of time and involving SCP in futile matters?

FN: Yes. I wish people would stop filing petitions like this one. This is the job of the government, not of the SC. In any event, there already is a federal body charged with oversight of the media (PEMRA).

Riaz: To write a letter to Swiss authorities is a violation of Article 248? This is one of the easy-to-interpret articles of the Constitution.

FN: No. Writing a letter to the Swiss will not violate Art 248. All that the letter needs to say is that the earlier letter written in 2008 was illegal. If the PPP wants, it can add that Asif Zardari is the president now and hence cannot be prosecuted in Switzerland. but simply telling the Swiss that the SC declared the 2008 letter to be illegal is not a violation of Art 248. Also, please note that the PPP has never relied on Art 248 before the SC. it only mentions 248 on tv.

Farhan J: How does this work in other countries? Do they also have contempt of court laws?

FN: I can’t speak for all countries. But certainly the US and the UK and India have contempt laws. And I would image that all countries whose legal system is based upon the common law of England will have contempt laws.

Kohari M: The fact that our prime minister was convicted for contempt and then removed from office — are there any international precedents? Has this happened elsewhere in the world?

FN: I don’t know of any other instances where a PM has been disqualified for contempt. But i do think there are instances where heads of government have been removed by court decisions (though I am not sure). You may also want to consider whether there are any other precedents for a situation in which a head of government simply refuses to obey a court order. Again, I can’t think of any.

Alam: Could you tell me a little but about the political theory behind contempt of court? When did this first emerge and become part of our Constitution?

FN: Contempt of court is as old as courts. In fact, I think there are judgments which say that the power to enforce court orders through contempt are inherent in the very existence of a court. I think english common law recognising contempt goes back centuries (but would need to check that). As for constitutional recognition, i don’t think our earlier constitutions had it but the provision in the current constitution has been there since 1973. Contempt is very simple. All that the court is saying is that if you will not obey me, then I will punish you.

Riaz: Do you think there was an alternate before executive other than contempt of court act 2012 to stop the advancement of CJP?

FN: Yes. The PPP government can simply write the letter. the other option would have been for them to use back-channel diplomacy and set up a deal whereby the SC sends the letter through a commission and the PPP keeps quiet about it. This current law is useless though because it seems almost deliberately calculated to goad the SC into further action.

Mansoor: What is your opinion about Indian Judge Justice Katju’s remarks about the SCP decision to send the PM Home?

FN: I agree with Justice Katju’s views about judicial restraint generally. But in the specific context of the NRO case, I think Justice Katju has got his facts wrong since writing the letter does not involve a violation of Art 248 (nor was it defended on that ground by the PPP).

Shinawar: To empower senate of Pakistan as the impeachment institution of CJP and other Judges of SCP and HCs not the need of hour and a balancing act?

FN: That’s a political choice and there’s nothing necessarily wrong with it. But it seems like a waste of time to me since we already have a constitutional mechanism for getting rid of judges and changing that mechanism is not going to fix any problem.