Freedom of Speech and Media Trial in Pakistan

FREEDOM OF SPEECH AND MEDIA TRIAL IN PAKISTAN FREEDOM OF SPEECH AND MEDIA TRIAL IN PAKISTAN By Muhammad Usman Ramzan, Deputy Solicitor Punjab The freedom of speech is a cherished right in a democratic system of government. There are no two opinions in the veracity of the statement that the freedom of speech plays a pivotal role in the development of the society. Media is enjoying the freedom nowaday in our legal system, but this was not the state of affairs a decade ago. Before then the freedom of speech was suppressed and the media was not even allowed to telecast a news item without the permission of the govt. But now, the situation is different. In the wake of media emancipation, the responsibility of media has increased. The freedom of media is coupled with responsibility. We can observe on our TV screens that the media reports about court cases. The reason might be to inform the public or to inculcate a sense of trust on judicial system or to identify flaws in system etc. Whatsoever is, the reason for this reporting, but it is clear now that the freedom of media is coupled with responsibility especially when there is confrontation between the freedom of media and the right of fair trial. On one hand media claims its right to report the cases pending in courts because the people right to information is accomplished all the way through media, on the other hand, too much coverage of cases pending in courts threatens the accused right of fair trial. Due to undue publication of cases, the print and electronic media is wielding clout on judicial proceedings. The media is plaguing the fountain of justice as there are no specific rules and regulation for media in relation to judicial proceedings. The relationship subsisting between the Article 19 and Article l0A of Constitution 1973 is the epic centre of this article. The topic is so important that little work has been done in respect of role of media vis-a-vis judicial proceedings. In contemporary era, Media defines the freedom of speech as right to know. But sometimes public right to know is to be sacrificed at the altar of proper administration of justice that is too in wider public interest. It does happen when a confrontation occurs between a fair trial and freedom of speech. The person under trial has fundamental right to receive a fair trial, whereas media also possesses freedom of speech and thus inform the public about a particular case. But the question is which one of them will be preferred? Either the right of fair trial will be favored or freedom of speech? Normally in civilized legal systems, the right of fair trial is preferred over freedom of speech. The main argument is that pre-trial publication in respect of a particular accused person may adversely affect him if a wrong conviction is made, whereas Media may enjoy its freedom later on after the conclusion of case. For instance, the Supreme Court of America has unanimously struck down a conviction because of the effect of particular publicity and because "the buildup of the prejudice is clear and convincing"1. Similarly, Rideauv v. Louisiana2 is another case in which a conviction was overturned because of adverse media publicity and prejudice. In Pakistan, a significant case in respect thereof is Ali Nawaz v. M.Yousaf3, a case under sections 497 and 498 of Pakistan Penal Code 1860, grievance was made of the fact that "undue Publicity" given to the proceedings of case in the press has resulted in 'contributing to an atmosphere: charged with dramatic effect 'causing 'considerable embarrassment to the accused, the lady and to other witnesses in the case'. The SC of Pakistan held that: "The circumstances that a high officer of the Government, who also held military ranks, was cited as an accused person, by a private complaint, and this at a time when the country lay under martial law, were compelling consideration that favored an open trial so that justice should not only be done but should manifestly be seen to be done"4 But in this case Supreme Court of Pakistan curtailed the allegation of adverse publication on the ground of open justice principle. Sometimes, it is important to realize the people that the judicial system is working well and the public must repose confidence on judiciary. The aim of such publication of case is to inform the public that justice is being done and everyone is equal before law and has equal protection of law. But it will be looked into in every case that what kind of message such publication is conveying among the general populace. Either it is transmitting open justice syndrome or notorious image of the person observing trial. It will be difficult to gauge these factors in society but the role of media in relation to judicial proceedings can be streamlined which in turn will provide better results. Here, it is suffice to describe this point a little, however there is separate discussion on this point. On one hand Article 19 of constitution of 1973 guarantees freedom of speech, on the other hand Article 10A of the Constitution ensures the right of fair trial to an accused person. The relationship subsisting between freedom of speech and fair trial is very old one. The media claims its right to report judicial proceedings and inform the public, whereas the person observing trial has also fundamental right to fair trial. The question arises as what is the constitutional status of such like situation. For sake of discussion, reference is made to US legal system. In USA, the right of the public and media to attend criminal trials is implicit in the guarantees of the first amendment as held in the Richmond Newspaper case5. There was much debate over the issue of television trials in America in late 1940's. The media provided too much coverage to the cases that stirred up a new debate As to whether "televised trials" were inherently a denial of due process and what is legal status of pre-trial publication? Chief Justice of America Burger, in delivering his opinion of the court in chandler, referred to Justice Harlan's opinion in Este's v. Texas6 in the following words; "My conclusion is that there is no constitutional requirement that the television be allowed in the courtroom....." In this connection, an interesting and problematic situation arose during general election of 2013 in Pakistan. There stirred up a debate that either media can give live coverage to judicial proceedings or not? And how returning officers (judicial officers) were acting under the guise of media publication? In this regard, reference is made toward a significant judgment of Lahore High Court Lahore in a constitutional petition titled as Munir Ahmad v. Election Commission of Pakistan.7 The petitioner contended that media telecasted live the scrutiny of nomination papers of candidates by returning officers and resultantly the returning officers were asking irrelevant and inappropriate questions in order to get cheap popularity. Hence media was not allowed to such live coverage as it had never happened before in the history of country. High Court Lahore directed Election Commission of Pakistan and returning officers across the province not to allow electronic media to telecast judicial proceedings from inside the court room. However the members of print and electronic media may be present inside the court room to report and observe the judicial proceedings. The said case made it clear that media coverage has an influence on the case and the judicial officers may decide the case under the impression of media publicity. However they are not supposed to decide case in such manner, they are lawfully bound to decide case according to law and evidence available on record. In Pakistan, the public is interested about what is going on in the courts, particularly in the cases of constitutional nature and the cases involving violation of fundamental rights. Since the inception of the country, important cases have been decided by the courts and they made an impact on the political life of the country. Because of their importance wide coverage of court proceedings were given to such cases by the media. But this coverage has implications on trial and defeats the cause of justice. Media gives too much coverage to the cases. They leave no stone unturned to prove the fact that persons under arrest have committed the crime. The public presumes them as guilty. But the individuals who becomes the subject of press or television, they are adversely affected by the media exposure. The media coverage poses great threat to their fair trial. The judges are also human beings and they are individual members of this society they may be prejudiced by such exposure. But the most drastic thing is that if suspects are acquitted in accordance with law then they cannot restore their lost reputation. In our legal system freedom of speech is not absolute rather it is subject to limitations. There is plethora of questions that may be raised in respect of above mentioned discussion. Has the media right to report the judicial proceedings? If the answer is in affirmative then what are the limitations? Can media condemn a person even before conviction by a court of law? Can media clippings be presented before a court as piece of evidence? For the above facts, the subject of trial by media has, therefore, assumed extraordinary importance. There is dire need to chalk out the constitutional limits of freedom of media and their role with respect to judicial proceedings. In criminal justice system, everyone is considered innocent unless proved guilty. The innocence is curtailed and damaged when the media discloses the names of accused persons pertaining to a case, even before the court has taken cognizance of the case. The prejudicial publicity to a case may result in permanent harm to an accused person if a wrong conviction is made as the result pre-trial publication by media. Similarly, the pre-trial publication poses great threat to the admissibility of evidence in a case. As a general rule, the bad character of the accused person is irrelevant under Article 68 of Qanun-e-Shahadat, 1984, but it becomes relevant if a plea of good character is availed or the character is itself a fact in issue. The media commits character assassination of the accused person and he is presented as accused and the most wanted person. Such pre-trial publication leads to the conclusion that the person is real culprit and that pre conceived notion defeats his right of fair trial. In this respect a significant case law in Pakistan is Wali Muhammad Khoso v. Federation of Pakistan8, the petitioner sought direction to the Federal Government and PEMRA to restrain the managing director of Geo News as well as Dr.Shahid Masood, Hamid Mir and Kamran Khan the anchors of the programmes "Mere Mutabiq" "Capital Talk" and "Kamran Khan k sath" and the chief editor of Daily Jhang from continuing with their alleged media campaign against the President of Pakistan, as the respondents were involved in his character assassination. It was further alleged that the proceedings relating to NRO were pending before the honorable Supreme Court and SC gave specific directions to print and electronic media not to print or telecast any news discussing merits of NRO. The petitioner submitted that a deliberate campaign had been launched to malign and defame the President of Pakistan. It was held; "Article 19 of the Constitution does not entitle the print and electronic media to launch a campaign against any person which is defamatory or is directed to harm and damage his political life on baseless grounds. There cannot be justification for doing so as this right is not absolute nor is exercisable in all circumstances"9 Similarly, in Syed Feroz Shah Gilani v Federation of Pakistan10, the learned counsel of the petitioner referred to a number of press statements made by different persons regarding the commencement of trial of Gen. Retired Pervaiz Musharraf under Article 6 of the Constitution which was pending before learned Special Court. And also referred to Article 204(2)(c) of the Constitution which treats the following actions to be punishable as contempt of court: "does anything which tends to prejudice the determination of a matter pending before the court". The petitioner further relied on the observation ,made by the Supreme Court in Ch. Zahoor Elahi v Zulifiqar Ali Bhutto11, wherein the court observed; "In doing so, we would like to make it clear that we do not wish to give the impression that this court approves of the making of comments with regard to pending proceedings. It is well established rule that when a matter is sub judice, all concerned should exercise restraint and avoid making any reference to such matters one way or the other and, therefore, as we have already observed in our first order in the reference itself that this well established rule of not making comments regarding pending proceedings will, we hope, also be observed in by all concerned during the pendency of the reference in this court". The learned counsel for the petitioner further referred that the aforesaid observation of the Supreme Court was adopted by PEMRA Ordinance 2002 in section 20(n) which provides that a person who is issued a license under this ordinance shall not broadcast any program or discussion on a matter which is sub-judice. So, it was held by High Court that the formulation made by the learned counsel for the petitioner has an element of force. However, the petitioner should first seek his remedy before PEMRA and thereafter any act of omission or commission by PEMRA could be challenged within the parameters of Article 199 of the Constitution. Moreover the learned Special Court has jurisdiction under section 6(2) of the Criminal Law Amendment (Special Court) Act 1976 to punish any person who does anything which tends to prejudice the case of a party before it. Being vested with such remedy the appropriate forum for considering the plea raised by the petitioner is learned Special Court itself. The justice should not only be done, but should manifestly and undoubtedly be seen to be done. This principle is universally recognized and it is accepted too in Pakistan. The media covered the past and present achievements of higher judiciary which inculcate a sense of security among the masses. The people appreciate the achievements and show their satisfaction on the administration of justice. But this openness should not hamper the fundamental right of the accused to receive a fair trial. In our legal system there are several test cases which the media chooses for the purpose of open justice and justice for all. While doing so, the media curtails the accused right of fair trial of an accused person. In this regard, the Supreme Court of Pakistan made observation in a case, wherein too much publication was given by media, in the following words; "The circumstances that a high officer of the Government, who also held military ranks, was cited as an accused person, by a private complaint, and this at a time when the country lay under martial law', were compelling consideration that favored an open trial so that justice should not only be done but should manifestly be seen to be done".12 But, where such like situation does not exist, media is not supposed to make too much publication of case, because it will adversely affect right of fair trial. Sometimes the judicial proceedings are held in camera and open justice principle does not attract in such like cases. In this regard reference is made to a case titled as Salman Akram Raja v. Government of Punjab through Chief Secretary.13 Wherein it was suggested by petitioner that in rape cases the statement under section 164 of Cr.P.C. 1898 of aggrieved party should be recorded by a female magistrate and trial should be conducted in camera inside the jail as there was threat to life of victim and her family members. The Supreme Court of Pakistan disposed of the petition with said directions. Another significant aspect of media publication is that either it can be made to inform the people in order to caution them from a crime, or it can be made for the purpose of public safety. Sometimes, the information is made public for the purpose of public safety. It is observed in our daily routine life that the media published the pictures along with short criminal history of the most wanted persons and suspects of a crime. The caricature of a suicide bomber is projected on TV screens. The question arises as to whether this kind of publication should be permitted for public safety or in public interest. There are several cases in Pakistan in which this situation arises. But there is no code of conduct in this respect by the PEMRA and we do not find any case law in this regard. Sometimes media publication for public safety may bring about different results. It often does happen that media makes publication pertaining to a tragic incident and resultantly it causes insecurity and uncertainty in society. In this regard reference can be made to a well reported judgment of Supreme Court of Pakistan titled as President Balochistan High Court Bar Association v. Federation of Pakistan14, wherein the contention of the petitioner was that media was publishing news items of taking responsibility by different defunct organizations in respect of incident of killing of innocent citizens. This act of media was creating a sense of insecurity among the citizens of province and was contrary to section 11-A of Anti Terrorism Act 1997. Balochistan High Court passed restraint order against media not to publish such news items and that order was confirmed by Supreme Court of Pakistan with a direction to print and electronic media that they will follow the provisions of section 11-A of Anti Terrorism Act 1997 strictly in future. So, the media should keep in view this factor and it should be determined either such kind of publication is for public safety or not. Similarly, there are numerous statutory provisions that prohibit publication of a case. For example, Juvenile Justice System Ordinance 2000 prohibits the publication of court proceedings in the following lines; "Prohibition to publish proceedings of cases---(1) Unless the juvenile court specifically, authorizes, the court proceedings shall not be published in any newspaper, magazine or journal in any form which may disclose the name, address, school or any identification or particulars calculated to lead directly or indirectly to the identification of such child nor shall any picture of the child be published".15 The rationale behind this provision of law is that the accused is minor and he/she has to lead his/her whole life yet. If the media discloses name and particulars of such accused, he/she will be stigmatized for whole life. And it will bring a negative effect; on child nourishment and he might not be able to become a responsible and dignified member of the society. It will deprive him from enjoying a dignified life. But, even then court may permit to publish whereabouts on the basis of another important reason. The important reason may be to find out parents and legal heirs of accused, so that he/she may be handed over to them after imposing minor penalty. Recently Sindh High Court has taken a sou motu action in respect of a case titled as State v. Wadero Mohabat Khan Khoso16 wherein the mews flashed on TV screens where it was shown that a father was selling his daughters in order to enforce the decision of "Jirga" as it had imposed heavy amount on him due to failure for marriage of his daughters. It was held that custom or usage of jirga was against fundamental rights and hence it is illegal. In addition to that High Court directed Pakistan Electronic Media Regulatory Authority (PEMRA) and all concerned to ensure that no name or photo of victims or child accused were published as per provisions of Sindh Children Act 1955, as it would cause damage to reputation of family. Thus, finally, the open court principle is not an end in itself but a means to promote the rule of law. Openness that defeats justice by prejudicing the accused right to a fair trial corrupts rather than promote the rule of law. While concluding the article, it can rightly be said that there has been very weak enforcement of laws, rules and regulations in respect of media. Reference is made toward Hamid Mir case, Independent Media Corporation Case and Sh. Ahsaan-ud-Din case wherein, Justice Jawad S. Khawaja Judge of Supreme Court of Pakistan directed PEMRA to frame rules and regulations and code of conduct for media personals. But it proved in vain and nothing prominent has so far been done in this regard. Therefore, there should be amendment in law of contempt in Pakistan keeping in view the latest developments in other legal systems of the world, and moreover the PEMRA should lay down code of conduct in respect of role of media vis-a-vis judicial proceedings and should ensure its implementation.