Freedom of Expression Vs Administration of Justice

The Panama Case has been covered by almost all renowned newspapers and TV channels. Ever since this case is pending, the newspapers and TV channels have been extensively covering the case in an opinionated manner. Recently a specific news item appeared in a newspaper where News reporter claimed that Joint Investigation Team has not found Prime Minister guilty but his two sons. The News item has gone on to state its opinion on various issues, which were pending before the Court. On the basis of undisclosed source, the news reporter rendered his own findings on the contents of JIT Report and printed his observations on the basis of his objective assessment. Since the nature of news was such which could possibly be termed as an attempt to influence the administration of justice, the Supreme Court has issued contempt notice to the Publisher as well as the Editor of the newspaper.

Under Article 19 of the Constitution of Pakistan, 1973, the Media and every citizen have the right to freedom of speech and expression, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, commission of or incitement to an offence. As the plain reading of the Article suggests any person including Journalists and the Press would not have any unfettered right under the garb of freedom of speech to even flout the mandate of law. There has to be some constrains and the restrains on the aspect of manner in covering the court proceedings and where such publication interferes with the administration of justice, then certainly court can take some effective measures, including the proceedings under the Contempt of Courts Act.

Under Article 19 the press in Pakistan does not enjoy a free right or freedom to speech unhindered and there can be a reasonable restriction where publication tends to interfere in the course of justice. The publications, which tend to interfere with the course of justice, would also make the Publisher and the Journalist liable for being proceeded against under the Contempt of Courts Act. It is different matter that the Court in its magnanimity may ignore such publications and may not initiate the contempt proceedings even in those cases where the publication has a tendency to interfere in the course of justice. The legal precedents in Pakistan also show that the Courts have been in fact generous in allowing the electronic and print media to exercise their right freely, however, may be time has come when courts should intervene and set out restrictions for reporting on issues of public importance pending before the courts in larger public interest.

To analyse whether a news item is a contempt of court or not, it would be helpful to review the relevant case law and precedents of courts from various jurisdictions. It has been ruled that publication which comment or reflect on the merits of the case, is referred as an extreme form of trial by newspaper as the newspaper in such a case would usurp the functions of the court without the safeguard of procedure, right to cross-examination etc. Such publications prejudge the facts and influence the court, witnesses and others. However, it is permissible to publish the facts of arrest and exact nature of charge, which would not be a contempt. (R. v. Payne, 1896 (1) QB 577).

The Supreme Court of Pakistan in a case reported as 2011 SCMR 948 held that to make fair comment about a Judge or a judgment is the right of every citizen as long as the object of making comment with bona fide intention by an individual are based on his view point, which cannot be made cognizable under any law. Where an opinion is not derogatory to Judiciary and view point does not ridicule the Judiciary, all fair comments are rather healthy signs by public deposing trust and owning the judicial system. In another case before Chief Court Gilgit Baltistan reported as 2012 PCRLJ 261, on account of scandalous news against judiciary the Editor and the Publisher of the newspaper was sentenced to six months simple imprisonment.

In Shamim Rehmaney Vs Zinat Kausar Dehalvi and others, 1971 Crl.L.J. 1586, the Court has observed that the course of justice must not be interfered with by publications which constitute opinions upon the merits of the case or create an atmosphere for or against an accused person before his or her case is finally decided.  Similarly in D. Jones Shield Vs N.Ramesam and others, AIR 1955 Andhra 156, A letter or a pamphlet addressed to a Judge, who is to decide the case with the intention either by threats or flattery or bribery to influence his decisions was held to be a contempt. In Rao Harnarain v. Gumori Ram: AIR 1958 Punjab 273 it was held that “liberty of the press is subordinate to administration of justice”. The plain duty of journalist is the reporting and not the adjudication of cases.

In view of the above precedents, the journalists should not publish report in the nature of running commentary or debate or record its own findings, conjectures, reflection or comments on issues, which are sub-judice. As a matter of caution, the newspaper and the Journalist ought to avoid publishing or commenting on evidence collected as result of investigative journalism at least from the date of the arrest of the accused, who is charged. They can be expected to scrupulously avoid commenting or evaluating a confession alleged to be made by any accused, lest they expose themselves to liability of contempt.

The print media is regulated by Press Council of Pakistan (“the Council”) established by the Parliament under Press Council of Pakistan Ordinance, 2002. The main function of the Council is to preserve the freedom of Press and to maintain and improve the standards of newspapers and news agencies in Pakistan. An Ethical Code of Practice has been formulated by the Council. Under Clause 2 of the Code requires the press to strive to publish and disclose all essential and relevant facts and ensure that the information it disseminates is fair and accurate. Print Media is also bound to abide by the Code regarding caution and criticising judicial acts and reporting news pertaining to court proceedings, which have been formulated by the Council. In view of the provisions of the Ordinance, 2002 and the Code, the Press is required to report accurately, particularly when court proceedings are covered.

It also necessitates that reporting pertaining to Court Proceedings before publishing a news item about court proceedings, it will be appropriate for the correspondent and editor to ascertain its correctness and authenticity so that the concerned person can be held guilty and accountable for furnishing incorrect facts or wrong information about the court proceedings.

The media today has assumed the foremost importance in society and governance. It is pertinent that such is the influence of media that it can make or unmake any individual, institution or any thought. All pervasive and all powerful is the impact of media today on the society. This being the nature of power, the media cannot lose sight of its privileges, duties and obligations.

While considering the Journalistic Code in the light of trial by media in Panama Case, in my view in a conflict between administration of justice and freedom of expression and speech, the administration of justice through fair trial has to necessarily prevail because, it is the Supreme Court who has the final authority to decide whether on the basis of JIT Report, the Premier can be disqualified or not, and whether the case is made out for filing a criminal reference against the respondents.

The media persons, thus, should be duly trained and imparted basic knowledge about functioning of the courts and basic processes of law. All concerned have to acquaint themselves with the legal position that by violating the law and the Code concerning the court proceedings, they can certainly expose themselves to a liability for action in various forms as already discussed in detail in the foregoing part of this judgment. Furthermore, the journalists need to be trained in certain aspects of law relating to freedom of speech in Article 19 and the restrictions which are permissible under Article 19 of the Constitution, human rights, and law of contempt.

Another equally important issue which needs attention of the superior courts is reporting from the courtroom by the reporters present in the courts. A question posed by a Judge, may be for finding out a certain fact, and answer given by the lawyer may appear in media as breaking news. This aspect also needs to be regulated to avoid unpleasant incidents of contempt of court notices to the correspondents. Superior courts should also consider accreditation of the news reporters who have basic knowledge of laws of the country.