ISLAMABAD: The Supreme Court of Pakistan on Thursday issued a verdict wherein the media has been restrained from airing public comments regarding sub judice matters.

“The oft-used term ‘media trial’ is a real phenomenon and cannot be allowed where the fate of sub judice matters is being decided on public forums as not only the minds of the public are being influenced, but also potentially the minds of the judges, lawyers and investigators, which would obviously tend to prejudice the sub judice matter,” says a 33-page verdict authored by Chief Justice of Pakistan Mian Saqib Nisar in a contempt case against anchorperson Arshad Sharif.

The ruling says that the journalist community and media at large is either misinformed or if not misinformed have silently tolerated such demeanour for so long that the internationally accepted standards for responsible journalism are so far from their line of sight that they fail to see its limits that they so carelessly and recklessly exceed without so much as a speck of remorse.

The court said that the freedom of speech and the right to information provided in Articles 19 and 19A of the Constitution are in no manner “unqualified rights” and may be made subject to regulation and reasonable restrictions. Therefore, while they are to be safeguarded, they cannot be used as a casual excuse to trample on other fundamental rights of another, particularly those which guarantee citizens the right to be dealt in accordance with law and the right to fair trial and due process enshrined in Articles 4 and 10A of the Constitution.

“Drawing assumptions, inferences and conclusions from evidence or the documents filed in a case and stepping into the shoes of a judge on broadcasted programmes may not only convict the accused in the eyes of the public regardless of whether he is ultimately exonerated by a court, but certain comments or opinions may be voiced which could potentially instill bias and prejudice in the minds of the judges, particularly to those who are dealing with the sub judice matter, thereby violating the fundamental rights under Articles 4 and 10A of the Constitution of the persons involved in such matter,” says the verdict.

At the heart of the debate is the need for a balance to be struck between freedom of expression and the administration of justice.

In the context of International law and Pakistan’s international commitments in this regard, lies the International Covenant on Civil and Political Rights (ICCPR) to which Pakistan is a signatory since 2008. While Article 19 of the ICCPR protects, inter alia, the right to hold opinions without interference, the right to freedom of expression and right to impart information.

“All licensees should be sent a notice/reminder of their basic ethics and objectives, standards and obligations under the Code of Conduct, particularly Clause 4(10) thereof, in that, editorial oversight should be observed prior to the airing of all programmes and any programme, the subject or content of which is found or deemed to be in violation of the Code of Conduct in its true letter and spirit, should not be aired by the licensee.”

The court says that while content based on extracts of court proceedings, police records and other sources are allowed to the extent that they are fair and correct, any news or discussions in programmes shall not be aired which are likely to jeopardise ongoing inquiries, investigations or trials.

In compliance with Clause 5 of the Code of Conduct, the court ordered that all licensees should strictly ensure that an effective delaying mechanism is in place for broadcasting live programmes to ensure stern compliance with the Code of Conduct and Articles 4, 10A and 204 of the Constitution, which talks about protect the rights of individuals as well as contempt of court.

“In compliance with Clause 17 of the Code of Conduct, an impartial and competent in-house Monitoring Committee shall be formed by each licensee, with intimation to PEMRA which shall be duty bound to ensure compliance of the Code of Conduct,” reads the ruling.

With regards to the Monitoring Committee,  the court  directs that licensees (TV channels) include (for each of its meetings) at least one practicing lawyer of at least five years or above practice, with adequate understanding of the law to advise the licensee regarding any potential violations of the Code of Conduct by programmes to be aired in the future.

In compliance with Clause 20 of the Code of Conduct, each licensee (TV channel) shall be required to hold regular trainings of its officers, employees, staff, anchors, representatives etc with regards to ensure compliance with the Code of Conduct with the schedule and agenda of these regular trainings to be intimated to PEMRA through the Monitoring Committee.

If any licensee is found to have violated or failed to observe the Code of Conduct in its true letter and spirit, particularly Clause 4 of thereof, and/or Articles 4, 10A and 204 of the Constitution, strict and immediate action should be taken against such licensee in accordance with Section 33 of the Ordinance.

The court also observed  that the Supreme Court or any high court retains the power to take cognisance of the matter and shall exercise its contempt powers under Article 204 ibid where such court is of the opinion that it is appropriate in the facts and circumstances of the case for it to do so and the unconditional and unqualified apology tendered by Arshad Sharif is accepted in view of the fact that in our opinion it has been tendered sincerely and he has expressed remorse and regret promising not to repeat such reckless and irresponsible behaviour in the future.

Sharif is also warned to be extremely careful in the future, says the judgement.

At the heart of this sub judice rule lies the view that an essential element of fair trial is an impartial judiciary and one simply cannot turn a blind eye to the fact that comment on a sub judice matter in the media or any other widely circulated publication has at least the potential of having an indirect effect on the minds of the judges seized of a matter.

Although judges have the ability to ignore any irrelevant considerations while adjudicating a matter, the mere risk or danger of causing prejudice to a pending matter is sufficient for the law to step in to protect the right of the one being adversely affected. While public interest may at times require that information be provided regarding a certain case, strict guidelines with regards to such publication are necessary to be imposed so as to ensure that the fundamental rights of all persons are given equal weightage including the accused or those involved in such proceedings.

The verdict said that a balance therefore must be struck between the right to freedom of speech and information on one hand and the right to fair trial, to be dealt with in accordance with law and of due process on the other. No person must be deprived of his fundamental right to be tried by an impartial judiciary and unbiased judge and an objective and fair trial unless a certain allegation is proved against him strictly in accordance with the law.

While on one hand such programmes are allowed to be aired thereby protecting the freedom of speech and the right to information; the requirement that they ought to be aired in an informative and objective manner and that no content should be aired which tends to prejudice the determination by a court, tribunal or any other judicial or quasi-judicial forum, ensures that the right to fair trial, to be dealt with in accordance with law and of due process are duly safeguarded. In fact, the Code of Conduct aids the broadcast media and distribution services in compliance of their responsibility under the Code of Conduct by providing pragmatic measures to ensure that they stay within the permissible boundaries of freedom of speech prescribed in the law when it comes to reporting sub judice matters, says the verdict

The court said that the law in Pakistan by virtue of the Code of Conduct in fact places greater trust in its media and journalist community by trusting that they will provide objective information about pending proceedings while taking precautions that they do not pass subjective or prejudicial comments in such regard.

The Express Tribune 

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Dawn: SC orders Pemra to ensure editorial monitoring of shows before they are aired

KARACHI: The latest order from the Pakistan Electronic Media Regulatory Authority (Pemra) warning private television channels to not broadcast what it called hate speech has once again caught the electronic media off-guard. Media managers and practitioners once again find themselves at a crossroads between military, political parties and the government.

The warning was issued late Thursday night after a speech of Muttahida Qaumi Movement (MQM) leader Altaf Hussain in which he had made certain remarks against the armed forces. He later sought an apology for the tirade, but private news channels which ran his speech had already been served show-cause notices.

Pemra’s directive, which is being widely viewed as a follow-up to the military spokesman’s reaction, is nonetheless interesting because when the MQM chief was live on more than 20 news channels, the regulatory body was nowhere in sight and had approached none of the channels.

It was only when Director-General Inter-Services Public Relations (ISPR) Maj-Gen Asim Bajwa tweeted the army’s response to Altaf Hussain’s speech, threatening legal action against the MQM chief that Pemra sprang into action.

Interestingly, a few hours prior to the broadcast of Altaf Hussain’s speech, then Senior Superintendent of Police Malir Rao Anwar held a press conference that ran live and equated the MQM with the banned Tehreek-i-Taliban Pakistan.

However, Pemra chose to say nothing at the time and although the Sindh government recalled Anwar from his posting not long after, television channels went on with their coverage that concentrated on what quickly became the talk of the evening.

Given the content of Anwar’s press conference, one expected a strong reaction from the MQM chief which is exactly what happened. Altaf Hussain spoke in a critical fashion and the military spokesman reacted. Having assessed DG ISPR’s reaction, the information ministry and the defence minister appeared to have quickly jumped on the bandwagon of how the MQM chief’s words constituted “hate speech” that should be prosecuted, bringing us once again to the question as to whether the latest Pemra order on the same in fact constitutes media censorship.

Most media practitioners and observers believe that both Pemra and the media are responsible for the content that ends up getting aired live. Azhar Abbas, President and CEO of the upcoming television channel BOL, says it is the responsibility of news management teams to monitor live content.

More on this: Altaf’s remarks on army to be legally pursued: ISPR

“All TV channels have submitted written assurances to Pemra that they will use a delay mechanism to ensure that hate speech is not aired,” he says.

What constitutes hate speech?

Moreover, delving into the crux of the matter, senior journalist and television anchor Talat Hussain believes there is a need to define what exactly constitutes hate speech so media managers and practitioners have a clear understanding of their freedoms and limitations along with the rationale for these.

He insists that the concept is used in an arbitrary fashion at times, leading to its abuse at the hands of vested interests and censorship in order to achieve political ends.

“For example, Altaf Hussain has said a number of things in the past and there hasn’t been a problem,” the anchor says, adding that “what was being said in the recent dharnas (sit-ins) outside the Parliament could also be regarded as hate speech”.

He further asked that although certain anchors had been resorting to hate speech in their talk shows, it was baffling that no action had been taken against them.

With the two senior journalists exploring the areas of responsibility and definitions when it comes to the concept of hate speech and how to manage it in a frenzied environment of breaking news TV, former Supreme Court Bar Association (SCBA) president Justice (retired) Tariq Mehmood dubbed the operations of the media as a circus where everyone airs their views with no accountability.

However, in the case Altaf Hussain’s controversial speech, he says it is the state’s responsibility to pursue the matter through a formal complaint against the MQM chief who is in fact a citizen of the United Kingdom of Great Britain.

Broadcasters, PFUJ yet to respond

So far there has been no reaction from either the Pakistan Broadcasters Association (PBA) or the Pakistan Federal Union of Journalists (PFUJ) against the Pemra order.

PFUJ President Afzal Butt says he has not read the order and would only relay a reaction on the subject after he has gone through it.

A ‘dilemma’ for journalists

Journalists have pointed out though that unless an enabling environment is created and the media is given adequate protection against censorship, such instances are likely to occur again and again.

This is particularly critical in the case of Pakistan which remains one of the most dangerous places in the world for journalists who often get caught in the crossfire between state and non-state actors.

A simple example to illustrate the dilemma confronting journalists and media organisations here is a suo motu notice taken in 2014 by then chief justice of Balochistan Qazi Faez Essa over the publishing and airing of statements by banned Baloch separatist organisations.

He had asked a media representative to explain why the media aired and published these, to which the response came that if the court could assure security and protection to the media from the said banned organisations, such statements would never be aired. And this was where the subject came to rest.

So the question presents itself, is Karachi any different?

Dawn