THE somewhat acrimonious debate on a Human Rights Watch statement on some judicial directives regarding media programmes has obscured the issue, namely, the media’s right to comment on judicial matters that demands a sober, rational and unemotional discussion.
The well-known and widely respected human rights watchdog had made it clear that it was responding to some directives issued by the Islamabad and Lahore high courts warning the TV channels against telecasting programmes that “criticised, ridiculed and defamed” the honourable judges of the superior courts or “intended to scandalise the judiciary”.
It may be possible to argue that the statement could have been couched in more persuasive language or that the undercurrent of alarm running through it sounded exaggerated. Perhaps it would have been better to say in Iqbal’s words, “hear a small complaint from those given to praising you”. In any case, it is not possible to deny any human rights organisation its right to take note of a development that can be interpreted as an attempt at censorship.
While the media must render to the judiciary and the other institutions of the state, and indeed to the honourable citizens of the country, the respect they are entitled to, any curtailment of its right to freedom of expression will not be in the interest of any of the parties cited here. There is thus considerable room for debate on the media-judiciary relations.
The first question is as to why has this matter — programmes touching on the dignity of the judiciary and the judges — arisen at this point in time? It has arisen because both the judiciary and the media are basking in the glory of their recently wrested independence and the increasing power of their pens.
Also at issue is the distinction between a judge while he is performing his august duties, when he is protected by the contempt law, and when he is acting as a private person, when resort to contempt laws will be problematic.
There was a time when the honourable judges spoke only through their judgments, whenever adjudication by them was sought, and led a secluded life, avoiding socialisation that could prejudice them for or against parties that could possibly appear before them. Many people thought this concept of a hermetically sealed judiciary was a device fashioned by the colonial power with a view to keeping the judges unaware of and unconcerned with the plight of the miserable natives. There may have been a grain of truth in this view but not more than that because the British judges too stayed aloof from society.
This view began to be challenged during the anti-colonial movement, especially after the Second World War, and the need to recognise a constructive relationship between law/judges and society began to be aired. In Pakistan, deviations from democracy brought about changes in the attitudes of both judges and the media.
The media, or a better part of it, did not like the Federal Court’s verdict in the Tamizuddin case but it found the courage to assail the judgment after a long time, and Justice Munir began to be criticised even later. Only a few protested against his collaboration with Ghulam Mohammad and then with Ayub Khan.
The judges of the superior courts could not have liked what the military ruler was doing to the people and the judiciary (1958-69) but they kept their peace, except for a brief attempt to save the power of judicial review or Justice Kayani’s out-of-court humorous missiles against the regime, including the one relating to taking oath after oath. And the media relished his words and backed him.
The executive’s interference in the judiciary’s domain begun by Ayub reached a climax under Ziaul Haq. Only a couple of judges declined to surrender to the first PCO and it was through the media that the people learnt of their heroism. The media stood by the dissenting judges at the time of Musharraf’s first assault on the judiciary and again, and more vigorously, when he mounted his second expedition against the judiciary and the state.
The lawyers’ movement gave the judiciary and the media both an invigorating feeling of independence and their power to determine what is good for the people. Unfortunately, some people are not prepared to believe that that phase of heady agitation has ended.
On the one hand, the judiciary has chosen to enlarge its functions beyond interpretation of statutes and some of the judges seem to have been carried away by their reformist zeal to address matters outside their jurisdiction. On the other hand, the media obviously believes it has a right to scrutinise court decisions and non-judicial pronouncements.
In fact, the media helps the judiciary by warning it of the dangers of transcending its mandate or of getting into controversies about secularism, the electoral process or obscenity. At a time when accountability is the buzz word someone or the other is bound to raise questions about the judicial authorities’ accountability. If this were a forbidden subject the constitution would not have provided for a Supreme Judicial Council.
The media should always be grateful to the judiciary for helping it (in periods of civilian rule) fight the executive’s censorial ambitions. Thus there is good ground to review the directive to Pemra to keep the media in check. Defaming superior court judges and scandalising the courts are crimes for which any culprit can be hauled up by the courts themselves. Pemra is a suspect animal in the media world. Any suggestion that it should get tough with the media is liable to be abused.
The fact is that the media persons who occasionally put critical questions to the judicial authorities have given them much less cause to complain than their unwise friends. Many people expected the judiciary to take note of its self-appointed defenders who tried politicians and their counsel before the latter had appeared or spoken in court. Such elements undermine the dignity of courts by indulging in discussion on sub-judice matters in print and on air.
It seems the tendency on the part of the judicial authorities to be over-sensitive to even fair comment on their rulings and speeches and the media’s keenness to assert its rights are unavoidable features of Pakistan’s transition to a rational order. In time, one hopes, the media will realise its limits as well as its rights, and the principle that contempt laws are good only so long as they are sparingly invoked will begin to enjoy the respect it deserves.