Judiciary being abused with impunity
By: Ahmad Noorani
ISLAMABAD: In the name of criticism, respected and revered personalities in the judiciary have been repeatedly abused and cursed without any action by the federal government or any of its regulatory authorities while some outlets of the international media have also joined the chorus against Pakistan’s independent judiciary.
A part of the free and independent media has been so irresponsible to air these interviews that expressions and words like “Ghar Ki Londi”, (housemaid) “Makkaar” (cunning), “Ihsan Faramosh” (ungrateful), “Dheet” (obstinate), “Baighairat” (shameless) , “Manhoos” (cursed), “Nasoor” (chronic wound) , “Jhoota” (liar), “Fitna” (troublemaker),Sarghuna (don), Kharab (spoiled), Bakwas (non-sense) were used for most respected and honourable personalities. While the selected lot in the media gave a PPP representative and a few people close to the party a free hand, the Constitution does not allow anyone to ridicule or disrespect the judiciary or a judge even inside the Parliament but such constitutional provisions are being blatantly violated with impunity.
Now even certain sections of international media have also joined hands with some power centres of Islamabad against the judiciary for unknown vested or other interests.
Reuters, which is considered as one of the top news agencies in the world and has a good repute, added its own critical analysis against the judiciary in Human Rights Watch (HRW)’s November 27 press release while issuing its story the same day.
It is astonishing that points added by Reuters were completely baseless and untrue. One wonders what the top editors of this agency had been doing since long as it was not the first instance when Reuters’ correspondents attacked Pakistan’s judiciary without looking at the ground facts and realities.
Whole institution of judiciary was attacked and the Islamabad High Court (IHC) and Lahore High Court (LHC) issued orders after such abusive programmes and use of abusive language. It is also extremely unfortunate that some people are running campaigns on social media against judiciary.
It is yet another fact that despite clear orders of the IHC and LHC, the movers and shakers in the country remained mysteriously silent and even allowed the repetitions of these malicious programmes in prime-hours. The HRW didn’t mention this fact in its November 27 press release.
“No one can consider it as criticism anywhere in any democratic culture,” were the comments of esteemed jurist Justice Wajihuddin Ahmad who has a history of fighting against dictators.
According to sources, the monitoring wings of the regulatory body noticed the same and apprised officials of the authority so that a repeat of the obnoxious programme could be stopped. However, as everything was being done under a well-planned strategy, the repetition of the programme was allowed in prime-time hours.
Repeated use of extremely obnoxious language against the courts has stunned the nation and higher courts have taken notice of the campaign. Afterwards some senior leaders of the PPP and some senior officials of the Pemra have also shown their aversion to the use of ugly language against judiciary. Circles close to the Presidency and Prime Minister House have indicated that top leaders wanted that this situation should be investigated and action should be taken.
Besides the Constitution, the Pemra law, and rules and regulations, and conditions of licence to any broadcaster or distributor clearly elaborate the no one could be allowed to defame the institution of judiciary.
Preamble of the Constitution provides: “Wherein the independence of the judiciary shall be fully secured;” Parliament is a place where all the members have right of free speech and they could not be questioned for what they said on the floor of the Senate, National Assembly or any other assembly. However, under Article 68 of the Constitution, even a member of the Parliament cannot speak against the person or conduct of a judge on the floor of any House of the Parliament, and if he will do so he will be breaching and breaking the Constitution of Islamic Republic of Pakistan. Article 68 reads, 68. No discussion shall take place in [Majlis-e-Shoora (Parliament)] with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties.
Under article 63(1)(g), any citizen who has acted against judiciary or brought it into ridicule could not become member of the Parliament, and if he is member of the Parliament and commits any such act, he will be disqualified from being member of the Majlis-e-Shoora (Parliament). Relevant part of article 63(1)(g) reads: “63(1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if: (g) he has been convicted by a court of competent jurisdiction for propagating any opinion, or acting in any manner, prejudicial to … the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary …, unless a period of five years has elapsed since his release;”
Keeping aside what any law or rules say, the Constitution itself declares any attempt to abuse, ridicule or defame a judge or the judiciary as a “Punishable offence”.
Article 204 of the Constitution reads: “204. (1) In this Article, ‘Court’ means the Supreme Court or a High Court.
(2) A Court shall have power to punish any person who—
a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court; b) scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt; c) does anything which tends to prejudice the determination of a matter pending before the Court; or d) does any other thing which, by law, constitutes contempt of the Court.
(3) The exercise of the power conferred on a Court by this Article may be regulated by law and, subject to law, by rules made by the Court.”
Section 20 of Pemra Ordinance bounds Pemra to ensure that all TV channels and broadcast media licence holders strictly adhere to the Constitution of Pakistan and to comply with rules framed by Pemra. Relevant portion of Section 20 of Pemra Ordinance reads: “Terms and conditions of licence.- A person who is issued a licence under this Ordinance shall- (b) ensure preservation of the national, cultural, social and religious values and the principles of public policy as enshrined in the Constitution of the Islamic Republic of Pakistan; (d) comply with rules made under this Ordinance.”
Code of Conduct for Media Broadcasters or Cable TV Operators as given in Schedule-A of Pemra Rules 2009 clearly provides that no TV channel can broadcast any content which is defamatory towards the judiciary of the country. Sub-clauses ‘f’ and ‘g’ of clause (1) of this Code of Conduct, which is the mandatory condition of the licence of the broadcasters, reads: “(1) No programme shall be aired which- … (f) contains anything amounting to contempt of court; (g) contains aspersions against the Judiciary …”
The Section 33 of Pemra Ordinance declares in categorical words such violations as offences and suggests punishments for the broadcast media violators. The Section 33 reads: “Offences and penalties.- (1) Any broadcast media or distribution service operator or person who violates or abets the violation of any of the provisions of the Ordinance shall be guilty of an offence punishable with a fine which may extend to ten million rupees. (2) Where such broadcast media or distribution service operator or person repeats the violation or abetment, such person shall be guilty of an offence punishable with imprisonment for a term which may extend to three years, or with fine, or with both.
(3) Where the violation, or abetment of the violation of any provision of this Ordinance is made by a person who does not hold a licence, such violation shall be punishable with imprisonment for a term which may extend to four years, or with fine, or with both, in addition to the confiscation of the equipment used in the commission of the act.
According to experts, Articles 5, 204 and 209, all the three articles being part of original 1973 Constitution Bill that was proposed by Zulfikar Ali Bhutto for adoption by the Constituent Assembly, are considered together, the following simple and unambiguous three-fold constitutional scheme emerges as follows:
a- No Judge of Honourable Supreme Court or High Court is above the law or entitled to any kind of immunity from being accountable in accordance with law (Article 5);
b- Any person who feels aggrieved by any illegal act or misconduct of a judge can seek legal ouster of that judge by pursuing the procedure laid down in Article 209 of the Constitution, where country’s five senior most judges are bound to give him a right of hearing and render their view on his complaint, based on which the President may remove that judge from office (Article 209); and
c- Abusing or throwing around allegations against any honourable judge through press conference and TV interviews is an offence (Article 204).
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