Recently, the powers of the judiciary under the contempt of court law have been a matter of much controversy. The superior judiciary has not shied away from using its provisions to ensure that its writ is meticulously followed, and usually the executive has been at the receiving end of most such notices. Most famously, former prime minister, Yousaf Raza Gillani, was convicted for contempt of court till its rising on April 26, 2012, and therefore removed from office.

However, the use of contempt of court is not a recent phenomenon and has been used several times in the past to especially rein in the executive. One such instance was the contempt of court case against the incumbent law secretary, Sir Edward Snelson, in 1961.

Sir Edward Snelson was a member of the erstwhile Indian Civil Service and had joined the Pakistan government after independence, becoming the central law secretary in 1951. In February 1960, he was asked by the central government to give a speech to section officers in Rawalpindi. In a wide-ranging talk, Sir Edward also criticised the use of writ powers by the high courts. He noted: "Between 1956 and 1958 the High Courts had used the language of the 1956 Constitution to claim a jurisdiction to interfere with the government itself without reference to the strictly defined frontiers of the prerogative writs."

Sir Edward further argued that since the high courts had misinterpreted the law on writs, all appeals of the government, except one, had succeeded in the Supreme Court. Despite the fact that this speech was given under the Official Secrets Act 1923, and the attendees were bound not to disclose it to anyone, the government printed two thousand copies of the speech which was then distributed, among others, to the registrar of the West Pakistan High Court. The speech therefore came to the notice of the judges of the high court who then issued a contempt notice to Sir Edward Snelson for his criticism of the high courts. The judges contended that Sir Edward’s speech "was calculated to lower the Court in the eyes of those who heard the talk as well as those who read the pamphlet and to undermine the authority of the Court…"

Sir Edward contested the notice and a three-member bench of the high court comprising Justices Shabir Ahmed, Yaqub Ali and John Ortcheson heard the case. Sir Edward argued that he had given the speech at the request of the government to a gathering bound by the Official Secrets Acts. Furthermore, even when copies of the speech were made by the government they were distributed to persons bound by the Official Secrets Act too. Therefore, relying on the Privy Council’s judgment in the Ambard case, Sir Edward argued that his speech was of ‘legitimate criticism of official acts, including judgments of the Courts of Justice,’ and did not amount to contempt.

Sir Edward also pointed out that the speech only became public when it was published in the press with the contempt notice. He elucidated that he had written the speech "in the midst of pressing official pre-occupations and that if had more time he might have used different language." However, he simply refused to tender an unconditional apology to the court, maintaining that it was an obsolete practice.

The West Pakistan High Court did not agree with the contention of Sir Edward, or the central government, which had also become party to the case. The judges took grave exception to subtle threat in the submission of the Attorney General of Pakistan where he had noted that the said pamphlet only became public knowledge -- in contravention of the Official Secrets Act --  after the judges had put in the court record. The judges noted that the reference "…could be nothing but a hint that the sword of Damocles in the shape of appropriate action for contravention of Official Secrets Act 1923, hung over the heads of the Judges of this Court and therefore the Judges hearing this case should watch their step lest they themselves and their colleagues come to grief."

The judges continued their harsh criticism of the submission and stated: "If anyone were to describe the written statement put in on behalf of the Pakistan Government as the least law respecting document ever presented by a responsibility party before a Court of Law of any civilised country, he would not be held by an impartial critic to have indulged in mis-description." The judges also pointed out that the objectionable paragraphs, No 9 and 10, of the talk were ‘entirely incongruous with other parts,’ of the speech and therefore it was ‘clear that the respondent wanted to tell his audience that the High Courts in Pakistan were manned by incompetent people who did not understand a branch of law which they had been administering for about five years.’

Therefore, the judges maintained that since "the institution in which all and sundry should have implicit confidence so that there should not be chaos has been maligned and its authority has been attempted to be undermined by an individual, and an institution cannot be sacrificed for an individual" and also that "the person who has indulged in this reprehensive act is a high official and as he is secretary to the Law Ministry of the Government of Pakistan, what he said about legal matters must have been considered to be true by all those who did not know the correct position."

Hence, they ordered that Sir Edward Snelson should not only be convicted but also fined the highest possible amount, which was Rs2,000, and failing that payment he should suffer a month’s simple imprisonment.

Against these harsh words and the conviction and fine, Sir Edward Snelson appealed to the Supreme Court. A full bench of the Supreme Court heard the appeal headed by the Chief Justice of Pakistan Justice A.R. Cornelius, sitting with Justice S.A. Rahman and Justice Fazle Akbar. After hearing the appeal Justice Cornelius dismissed the appeal and also did not expunge the harsh remarks of the high court judges against the government and Sir Edward Snelson, even though he regretted some of the language. Chief Justice Cornelius also regretted that a simple apology was not presented before the high court, which could have ended the matter.

The Snelson case then became a prime example of the powers of the judiciary in Pakistan. Since the judgment was passed during the martial law of General Ayub Khan it was further seen as a signal by the judiciary that it would not kowtow to the martial law regime, and react very strongly, and firmly, if it thought that its honour was being besmirched.

Seen against the Snelson case (Sir Edward Snelson resigned his post and went back to England as a result of this judgment), it is not difficult to understand the present tendency in the judiciary to define contempt in the broadest of meanings. However, in the absence of what amounts to ‘legitimate criticism,’ a frequent use of contempt powers only limits free speech and constructive criticism, thwarting a further development of the rule of law and judiciary in Pakistan.