Abstract
Reporting on the bench? Be careful what you say. From Karachi,
For once, the otherwise recalcitrant Pakistani media have been silenced, and by none other than the most powerful state institution – the judiciary. Is this an attempt to censor the press? Or are the courts merely defending their proverbial independence by applying the law on behalf of the state?
On 9 October 2012, Justice Shaukat Aziz Siddiqui of the Islamabad High Court issued a restraining order to the Pakistan Electronic Media Regulatory Authority (PEMRA) – the state body that regulates the broadcast media – forbidding television channels to air anti-judiciary programmes. On 20 November, the Islamabad High Court maintained that restraining order and directed PEMRA to submit a progress report regarding a particular television programme aired on a private channel that had criticised Supreme Court Chief Justice Chaudhry. A contempt of court notice was also issued to the channel’s chief executive. Similarly, on 16 October, Judge Nasir Saeed Sheikh of the Lahore High Court issued a similar order restraining TV channels from airing programmes maligning the judiciary. The restraining order was further extended on 7 November and PEMRA was directed to ensure the order was implemented.
Reacting to the court’s clampdown on the media, the New York-based Human Rights Watch (HRW) cautioned Pakistan’s judges to cease using their contempt of court powers to muzzle the media. Brad Adams, Asia director at Human Rights Watch, said in a press statement: ‘Judges have no special immunity from criticism. Unless they want to be seen as instruments of coercion and censorship, they should immediately revoke these curbs on free expression.’
‘I endorse HRW’s statement’, says Zohra Yusuf, chairperson of the independent Human Rights Commission of Pakistan (HRCP), speaking to Index. Yusuf revealed too that there have been several occasions in the recent past where the judiciary has demanded footage of programmes in which it has been criticised and has asked PEMRA to keep such programmes off the air.
In Pakistan, these sorts of pressures on the media are not new. According to the Ethical Journalism Network in Pakistan:
In a country where traditions of political pressure from government and non-state actors pose a constant threat to independent journalism, the media landscape has been transformed by an explosion of private broadcast media in a highly competitive environment, which has led to massive challenges for journalism. In 2011 a number of ethical scandals have threatened to overwhelm media, leading to major questions over the performance of existing regulators – the self-regulating press council and the state agency PEMRA, which covers broadcasting.
But with renewed pressure from the courts, the situation has worsened.
Talking to Index from Lahore, IA Rehman, secretary general of the HRCP, says he believes the judiciary has transcended its mandate and ‘encroached on the domain of the executive and the legislature’, adding that it is a ‘clear departure from the precedents set by the court itself’. For her part, Asma Jahangir, former president of the Supreme Court Bar Association, tells Index: ‘the judiciary was way too powerful and … at times overstepped its limit.’ In its press statement, HRW also said: ‘The courts have since faced recurring allegations of judicial overreach into the legitimate constitutional domain of the legislature and the executive.’
Supporters of Justice Iftikhar Muhammad Chaudhry gather outside the Press Club, Hyderabad, 16 January 2012
‘I don’t think the media were overstepping’, says Anees Jillani, advocate of the Supreme Court, talking to Index from Islamabad. ‘Did the court give the media an opportunity to defend their actions before unilaterally passing a spate of orders to limit the freedom of expression of the media?’ he asked.
Media abuse?
On the other hand, Mazhar Abbas, former secretary general of the Pakistan Federal Union of Journalists (PFUJ), tells Index the media had ‘overstepped’ its ambit. ‘You just cannot allow anyone to use abusive language against the chief justice of Pakistan’, he says.
He is specifically talking about ruling Pakistan People’s Party Senator Faisal Raza Abidi’s diatribe on various TV channels. In his several outbursts on television talk shows (all of which have been blocked by PEMRA) and in a press conference, Abidi levelled serious allegations against Chief Justice Chaudhry, demanded his resignation, and said he was responsible for the alleged financial impropriety of his son, Arsalan Iftikhar, and the latter’s link to property tycoon Malik Riaz.
In June 2012, Riaz publicly accused Iftikhar of extortion and acknowledged paying him Rs. 342.5m (about US$6.22m) to influence his father’s rulings. Riaz also claimed he had held clandestine meetings with Chaudhry. It was only after the media broke the news that the chief justice took suo motu notice (‘on his own motion’) of the bribe allegedly taken by his son and excused himself from ruling on the case. Riaz maintained that the chief justice had knowledge of his son’s misdemeanours all along, but did nothing to stop them.
At the same time, the judiciary was embroiled in a tussle with parliament, which reached a peak when the Supreme Court dismissed Prime Minister Yusuf Raza Gilani from his position in June 2012 for refusing to reopen a corruption inquiry into allegations of financial irregularities by President Asif Ali Zardari.
The normally raucous journalistic fraternity’s silent acceptance of the clampdown is unusual.
Jahangir, the former president of the Supreme Court Bar Association, commented dryly: ‘Perhaps the media is intimidated because its employers have cases pending in the courts.’ When asked, Abbas cannot recall a single case. According to him, ‘The media barons will never allow their reporters or anchors to do shows and malign the judiciary unless they have strong political or business backing, but morally and ethically media is in the wrong if it comments on the court cases which are still in court.’
The beginning of a beautiful friendship
The Pakistani journalistic community, which is highly politicised itself, has played an active role in the country’s political process. In 2007, the media – particularly the digital media – and the judiciary were cosy bedfellows.
Some sections of the online media community launched an effective campaign for the reinstatement of Chief Justice Chaudhry after then President Pervez Musharraf suspended him on the basis of accusations of violating the norms of judicial propriety, corruption, seeking favours, commanding influence through friendships with senior lawyers and interfering with the executive branch. In March 2009, Chaudhry was reinstated, together with other senior justices and judges.
According to Abbas from the PFUJ, the media and the courts enjoyed a comfy relationship and a ‘tradition of the court passing an order that media should not comment on is a rarity’. At the most, he says, the court will ask journalists to be careful in how they report.
After 2009, Abbas says, the judiciary gave a free rein to the digital media to report ‘in whatever manner they liked’ about cases. ‘Maybe the publicity suited the judges,’ he says, adding that at times lawyers urged the judiciary to stop journalists from commenting on and predicting the outcome of cases, chiefly because these reports were influencing their clients’ cases, but these pleas were ignored.
Former Supreme Court Justice Wajihuddin Ahmed, speaking to Index, says that constitutionally no one could stop anyone from making a ‘fair comment’ on judges and their decisions. But he added that ‘point-scoring in the garb of free speech’ should not be permitted. He was of the view, however, that there had been ‘unwarranted criticism of judges, personal attacks on their character’, which needed to be stopped.
‘Maligning the chief justice of Pakistan was quite unfair as well as unprecedented,’ says former Pakistan Muslim League-Nawaz senator and information minister Tariq Azeem. ‘This does not happen to any judge in a civilised country,’ he told Index. ‘What message are you sending to the common man watching the programme? To keep the sanctity of the courts, it is imperative to censure the media. In any case, I don’t think this was a blanket ban; it was a selective one, as the media have been covering and commenting on court cases.’
But for former Supreme Court judge Ahmed, ‘when the government is not doing its job, when corruption is rampant, when those in the government and sitting in parliament are evading taxes, the courts cannot remain silent.’
In theory, said the HRCP’s Rehman, no one is above the law in Pakistan. However, Article 19 of the constitution, which guarantees free speech and freedom of the press, says they are subject to ‘any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan’.
‘The Supreme Court has vast powers to stop reporting on its proceedings,’ Abbas said. ‘Parliament also has this privilege. The press law bars journalists from reporting anything prohibited by the court or legislature.’
The question is how this will end. As Pakistan’s nascent electronic media grapple with issues of free speech and content regulation imposed on them by PEMRA, for now, the Supreme Court seems to have control. Or, as Rehman puts it, they have been silenced by ‘the power the judiciary wields today’.