Contempt of court: jurisdiction and judicial restraint


Hafiz Ahsaan Ahmad Khokhar

The law of contempt of court starts in Pakistan with the provision of Article 204 of the Constitution of Islamic Republic of Pakistan

Safeguarding the dignity and decorum of courts and the administration of justice is inevitable for upholding the rule of law in every country.
To maintain such dignity and decorum, every country has designed certain legislations, which are called the contempt of court law. Generally, the courts everywhere in the world show reluctance and judicial restraint relating to the application of contempt laws. One should be very careful while making a statement about courts, judicial officers and the sub judice matters.
The law of contempt of court starts in Pakistan with the provision of Article 204 of the Constitution of Islamic Republic of Pakistan, which unequivocally vouchsafes wide discretionary powers of contempt to Superior Courts of Pakistan.
Article 204 has further elaborated that a Superior Court shall have the power to punish any person who abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court or scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt or does anything which tends to prejudice the determination of a matter pending with the Court or does any other thing which, by law, constitutes contempt of the Court.
Contempt proceedings can be initiated either by filing an application or by the court itself through a suo motu. In both cases, contempt proceedings must be initiated within one year from the date on which contempt is alleged to have been committed. The contempt law is a blend of the power of a court to punish for its contempt.
As per Article 204 read with Entry 55 of the Fourth Schedule to the Constitution, only the Supreme Court and High courts have the powers to punish any person found guilty of contempt of court falling within the definition of contempt of court given in Clause (2) of Article 204 of Constitution.
To exercise a power conferred on a court for contempt of court is to be regulated further by a law, and accordingly as per Article 204 (3) of Constitution, Contempt of Court Act, LXIV of 1976 was legislated by Parliament, and later after its repealed, Contempt of Court Ordinance, 2003 was promulgated, the same was also repealed through Contempt of Court Act 2012. However, the Contempt of Court Act 2012 was struck down by the Supreme Court in August 2012; and consequently the Contempt of Court Ordinance 2003 stood revived through the judgment of Supreme Court.
The Contempt of Court Ordinance, 2003 has classified and divides the cases of contempt into three different species, i.e. “civil contempt”, “criminal contempt” and “judicial contempt”. Each type of contempt has been defined in Sections 2(a), (b) & (c) of the Ordinance, respectively.
Section 4 of the Ordinance enunciates and reiterates the general principle that every superior court shall have the power to punish a contempt committed in relation to it. The Ordinance has also given the exception that a fair and healthy comment on a judgment involving a question of public importance in a case which has finally been decided and is no longer pending shall not constitute contempt of court.
Submission of an unconditional apology in every case is neither a condition precedent nor a point of ego or prestige for the courts. The courts can accept the apology and discharge the contemnor from the notice of contempt. However, tendering unconditional apology does not lead to putting up an end of contempt proceedings. The acceptance or rejection of an unconditional apology is the discretion of courts and that has to be considered on case to case bases.
Any person who commits contempt of court shall be punished with imprisonment which may extend to six months, simple imprisonment, or with fine which may extend to one hundred thousand rupees, or with both. The Attorney General for Pakistan and Advocate General of a province respectively act as prosecutor for the contempt proceedings.
An appeal against the orders passed by a Superior Court in cases of contempt can be filed under Section 19 of the Ordinance 2003. The limitation period for filing an appeal before the Appellate Court is 30 days. The Ordinance further states that in the case of an order passed by a single Judge of a High Court, an intra-court appeal shall lie to a bench of two or more Judges, and in a case in which the original order has been passed by a division or larger bench of a High Court an appeal shall lie to the Supreme Court or in the case of an original order passed by a single judge or a bench of two Judges of the Supreme Court an intra-Court appeal shall lie to a Bench of three Judges and in case the original order was passed by a bench of three or more Judges an intra-court appeal shall lie to a bench of five or more Judges. The Contempt Ordinance also gives power to the Appellate Court to suspend the impugned order till pending disposal of the appeal.
A subordinate court can only make a reference to his respective High Court for initiating contempt proceedings against the contemnor. The subordinate judiciary in Pakistan consists of civil and criminal district courts, and numerous specialized courts covering banking, insurance, customs and excise, smuggling, drugs, terrorism, taxation, the environment, consumer protection, and corruption etc. Every High Court subject to sub-section (3) of Contempt Ordinance shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempt of courts subordinate to it as it has and exercises in respect of contempt of itself.
Though the Contempt of Court Ordinance 2003 has given jurisdiction and vide powers to the superior courts to take suo motu for proceedings on different contempt matters, at the same time Section 4(3) of the Contempt of Court Ordinance, 2003 excluded the jurisdiction of a High Court by stating that no High Court shall proceed in cases in which an alleged contempt is punishable by a subordinate court under the Pakistan Penal Code 1860. However, there is no such restriction or exclusion to the jurisdiction of the Supreme Court, as it can take cognizance to all matters of contempt of court throughout Pakistan under the Constitution and under the Contempt of Court Ordinance, 2003.