Contempt again A Supreme Court (SC) three-member bench headed by Chief Justice (CJ) Iftikhar Mohammad Chaudhry has decided to indict the NAB Chairman, Admiral (retd) Fasih Bokhari, for contempt of court on April 2. The charge relates to the letter the NAB Chairman wrote to the president, in which he alleged that the SC was unnecessarily pressurising NAB investigators in high profile cases such as the Rental Power case. The bench has in its wisdom chosen to ignore the objections of the alleged contemnor regarding the same bench hearing the contempt charge as had originally framed it. Further, the Admiral has openly accused the court, and especially the CJ, of being predisposed against him, and that therefore he stands condemned even before the case is heard. The NAB Chairman has also invoked the CJ's son Arsalan Iftikhar’s case, in which the Admiral says he was accused of all sorts of things by Arsalan. Given the relationship of Arsalan with the CJ, the Admiral continued, it would be in the fitness of things if the CJ were to recuse himself. The bench has seen fit to override all these objections on the grounds that it was not just the CJ but the entire court that the Admiral committed contempt against, and that the CJ was bound to sit on important cases. While the honourable court has the power and authority to reject any accused’s objections to a particular bench or a particular judge, it may perhaps have been in the fitness of things if either another bench had been formed so that that objection could be dealt with, and for the CJ to recuse himself since both the bench and the CJ had no confidence expressed in them by the alleged contemnor. Justice after all should not only be done, but be seen to be done. Admittedly, the symbol of justice, a lady bearing the scales of justice, is blindfolded. This however implies that justice is blind to all considerations except what the law lays down, not blind per se. In the Arsalan Iftikhar case, the CJ unfortunately did not at first realise the sensitivity surrounding his insistence on sitting on the bench hearing the case, an unprecedented bending of judicial precedents. It was only after a day or so that perhaps the honourable CJ realised the inappropriateness of that decision and eventually recused himself. It is of course a separate matter that the Arsalan Iftikhar-Malik Riaz case has disappeared from view and nothing is known of its eventual outcome. With the greatest respect to the superior judiciary in general and the SC in particular, we have argued innumerable times in this space that the respect and dignity of the judiciary also lies in its own hands. Nothing therefore should be said or done that may bring that respect and dignity into question. Unfortunately, the perception has grown since the restoration of the superior judiciary in 2009 that the judiciary in general, and the SC in particular, have become hyperactive. This has led to friction regarding the boundaries defining the separation of powers in our constitutional construct between the legislature, executive and judiciary. Excessive use of suo motu and contempt powers, far from enhancing the stature of the judiciary, have tended to drag it into unsavoury controversy. The hyperactivism of the judiciary has made the functioning of other state institutions, particularly the executive and governments, that much more difficult in a time when the country is faced with innumerable and serious problems. While it is undeniably the duty of the judiciary to dispense justice, governing has to be left within the purview of the executive if the system is to function and not suffer paralysis. Parliament too has had its complaints against what has been seen as an increasingly overweening judiciary. Then there is the accusation that the SC’s priority has tended to weigh against the PPP and its leaders more and adopted a relatively ‘softly, softly’ approach to the PML-N. Whether there is any truth in this or not, the mere perception is damaging to the esteemed institution of the judiciary. ‘Pick and choose justice’, compounded by using up the judiciary’s precious time on relatively fresh cases, ignoring the mountain of backlog that clogs the veins of the judicial system, is seen in some quarters as weakening the ends of justice. It is sad to ruminate that the goodwill and prestige the judiciary enjoyed after its restoration in 2009 has been eroded by subsequent developments. That is why the time-honoured principle of judicial restraint is still the best course to return to even at this late stage.