In a development that was expected, almost awaited, the honorable Lahore High Court, on Thursday, issued a contempt of court notice to ARY TV Channel, Mubashar Luqman, Asim Malik and the producer of the program ‘Khara Such’, for airing remarks that, prima facie, amounted to ‘scandalizing’ and ‘ridiculing’ a judge of the honorable Court.

Briefly iterated, facts that have become all too familiar over the past few weeks, on 22nd September, one Mr. Asim Malik, the CEO of a company called Future Concern, appeared on a television program called Khara Such, on ARY News, hosted by Mubashar Luqman, and made certain grave allegations against (among others) Justice Mazahar Ali Akbar Naqvi of the honorable Lahore high Court. In making his allegations, which were unsubstantiated by any documentation or proof, Mr. Malik failed to disclose the fact (which is part of the record) that he has been declared a Proclaimed Offender from law, with over a 190 FIR’s registered against him, for defrauding members of general public to the tune of billions of rupees. Mr. Malik also conveniently glazed over the fact that the entirety of judicial proceedings against him by the honorable Lahore high Court, including the registration of over 190 FIR’s, took place through the orders of Justice Naqvi. And the record shows that even when Mr. Malik was able to maneuver the political and administrative machinery of Pakistan to flee abroad, escaping the clutches of our judicial system, Justice Naqvi ordered the relevant authorities to pursue Mr. Malik through the issuance of Red Warrants via the International Interpol.

Nonetheless, in a world where tele-media dictates the contours of our national rhetoric, the unsubstantiated allegations of Mr. Malik (Proclaimed Offender from law) have permanently scared the reputation and integrity of the concerned judge.

The unfolding of this episode, at the heels of other similar instances over the last few years (scandalizing other judges), and the resulting issuance of contempt notices, has called to question the expanding frontiers of free media and the corresponding balance between ‘freedom of speech’ and ‘contempt of court’.

The freedom of speech and expression, under the Constitution of Pakistan, is protected, as a fundamental right, under Article 19 of the Constitution. However, as is the acceptable norm in all of international jurisprudence, the constitutional right to freedom of speech in Pakistan is not unfettered, and is subject to limitations that include, inter alia, contempt of court.

Correspondingly, Article 204 of the Constitution of Pakistan grants courts the power to punish contemnors who “scandalize” the court, or bring a judge “into hatred, ridicule or contempt”.

The ideal behind sacrificing freedom of speech at the altar of contempt finds justification in two disparate but connected ideas: 1) scandalizing or ridiculing a judge, especially casting doubts upon his or her integrity, erodes the confidence of litigants, and thus the public in general, in the seat of justice; and 2) a judge (any judge) by virtue of the limitations place by the ‘Judicial Code of Conduct’, is unable to publicly respond to personal allegations, and thus cannot compete in the “marketplace of ideas”, which is the very bedrock of freedom of speech. As a result, the judges are interested with the power of contempt to protect the esteem of the Court, as well as the integrity of their person.

Despite this legal and moral justification, the power of contempt (as has been manifest in our recent jurisprudence) is susceptible to abuse.

Amongst the general public, away from the legal fraternity, ‘contempt of court’ is perhaps the most widely recognized legal term in our land; second only to the idea of a ‘Constitution’ perhaps. Featuring in the disqualification of a former Prime Minister, charges against Imran Khan’s public speeches, Mubashar Luqman’s rants, and Malik Riaz’s press-conference… the contempt of court law has undeniably played a starring (hypersensitive?) role in our recent jurisprudence and national dialogue. Without delving into the merits of these individual cases, it must be asked: what are the limits of freedom of speech, especially as they rub against contemptuous ideas? Is contempt merely a tool, at the disposal of the judiciary, to defend its institutional sovereignty and settle personal grudges? Or should contempt proceedings be divorced from the personality of individual judges (who must be accountable, even critiqued, for their personal conduct)?Can the necessary protection of judicial integrity be achieved only through contempt proceedings? Or must the society protect speech, and the open discourse of (even harmful) ideas, even at the risk of contempt?

As a bench of the honorable Lahore High Court listens to the contempt proceedings in the ARY/Asim Malik case, it would be hard for anyone to argue that contempt is an entirely unnecessary and overused tool in our legal arsenal. On the other hand, in the heat of the judicial moment, it would also have to be remembered that it would be fallacious to believe that dignity of the Courts can be ‘enforced’ through contempt law. Vindication of Court’s dignity (or that of any individual judge) emanates from the impartiality of its pronouncements, and not the threat of contempt proceedings.

We must take this opportunity to rethink our philosophy and approach to the contempt of court law, as well as that to that of ‘free media’. One that is deliberate, and purposeful. One that settles the contours of the contempt law, without compromising the expansive limits of freedom of speech.

In many ways, we are standing at the edge of reason. What actually happens in these proceedings may finally be a question of people personal ideologies, as much as it is one of law.

In this time, what we require the most is the wisdom to look past our knee-jerk reactions, and aspire for the establishment of an expansive fundamental rights regime, and a patient system of justice in our land.

    The writer is a lawyer based in Lahore. He

    has a Masters in Constitutional Law from Harvard Law School.