Media freedoms in Pakistan are no longer a cause of celebration. Recent events have shown that journalists are facing pressure from all sides. Historically, it was the state power, especially that of the executive which curbed freedom of speech and attacked journalists. We have entered a new phase of struggle today when power is being dispersed and, hence, journalists are under attack by non-state actors. Dozens of Pakistani journalists have died in recent years and several face threats and intimidation from the militants and mafias in the country.
Last year, Saleem Shahzad was brutally murdered and to date we don’t know if there was a killer or some invisible hand that killed the journalist. Similarly, a young reporter Wali Baber died in Karachi and such is the might of his killers that all witnesses in his case have been murdered. Senior journalist and popular TV anchor Najam Sethi is under threat and recently two TV anchors, i.e, Hamid Mir and Mohammad Malick were intimidated. In the FATA region and parts of Khyber Pakhtankhwa and Balochistan provinces insurgents and militants kill or attack reporters with impunity.
This is a major challenge to Pakistan’s fragile democracy. Press freedom and right to information are non-negotiable rights central to the idea of a democracy. Sadly, the government and the failed criminal justice system have not come to the rescue to the victims. The powerful intelligence agencies, urban gangs and militants have inroads into the ‘system’, thereby impeding any form of justice. Little wonder that Pakistan is turning into a violent country and adapting to the widespread denial of justice.
Other than the physical threats, the pressures on the media are tremendous. For decades, the army did not allow any criticism and it had made foolproof arrangements to control the narrative and promote a particular version of ‘truth’ and ‘ history’. Even civilian governments were not too different when it came to attacking freedom. Zulfikar Ali Bhutto and later Mohammad Nawaz Sharif as powerful Prime Ministers were keen to control the media. While the journalists showed resilience, the media houses also learnt the art of playing politics and by the end of Musharraf’s rule the media owners as a small group emerged as a major power centre.
This rise of media power came coincided with the emergence of judiciary as an independent state institution with popular legitimacy. In fact, the media played a major role in the lawyers and later judges’ movement. These two forces were closely aligned in their zest to hold the civilian government in check and ensure that it does not commit any excess.
This nexus seems to be under strain as the media by its very nature can only be competitive and relevant if it reports, disseminates ‘information’ and asserts its independence. In the case of the judiciary, after the initial consensus and support, the print and electronic media started to give space to the criticism of judicial verdicts.
For instance, the Supreme Court judgement on the national reconciliation ordinance in 2010 attracted immense media commentary some of which was not too flattering about the courts. Since then, the media has been the only platform where judges have been judged. This is, indeed, a curious situation as the superior courts are only accountable to themselves or as the axiom goes to their conscience.
The key institution — Supreme Judicial Council — mandated with judicial accountability has always been an inactive body. It is fully under the control of judges. The only breach that he parliament has made is through a token parliamentary commission which screens the candidates for judicial appointments but its decision is subordinate to court proceedings.
Other than that there is virtually no other means of judicial accountability. It is true that judicial independence requires the courts to be independent of interference and controls, but public accountability is essential for all pillars of the state. The judges cannot be exempted from this principle of a democratic and rule-based society. Our constitution’s structure and scheme are pretty clear: Pakistan is a parliamentary democracy and people’s will is only second to that of Allah’s.
There are two ways to resolve this situation. First, activating internal accountability measures and second is to accept external accountability as a tenet of a democratic society. Fair comment on judicial verdicts only leads of improvements in jurisprudence and administration of justice.
The recent controversy about a press release issued by the Human Rights Watch relates to the issue of judicial orders regarding media coverage. Human Rights Watch Asia Director, Brad Adams, has said that judges do not enjoy “special immunity from criticism”.
According to the HRW press release, On October 9, Justice Shaukat Aziz Siddiqui of the Islamabad High Court “issued a restraining order to the Pakistan Electronic Media Regulatory Authority (PEMRA) to stop airing criticism of the judiciary on television.
The court sought to justify its order by asserting that the media ban was “to ensure that no programme containing uncommendable, malicious, and wicked material is telecast by any of the channels in which person of the honourable Chief Justice of Pakistan and other honourable judges of the superior court are criticised, ridiculed, and defamed.”
Other instances cited by the HRW include the directions to Pakistan’s media regulator, PEMRA, to implement its orders on restricting anti- judges programming. Lahore and Islamabad High Courts have been active on this front.
While the judges have a point in preventing malicious content, the fact of the matter is that when serious allegations are levelled against the relative of a judge then it becomes difficult to stop people from commenting on it.
This is especially relevant when the courts are extremely active in checking corruption and fixing ‘governance’ of the executive; and screening the parliamentarians. More often than not benches reportedly pass unflattering remarks about the parliamentarians and also judge the performance of elected provincial governments. The politicians and civil society have right to demand similar accountability and transparency from the judiciary.
And the media has to sell news and opinion on this. This is the complex reality of a society where freedoms are guaranteed by the constitution. Indeed, defamation must not occur and once again the courts have the responsibility to define, adjudicate and develop case law on defamation which is seriously lacking in this country.
The best analysis of the media vs judiciary debate has come from Justice (r) Tariq Mahmood who, while saying that overuse of contempt law by the courts is counterproductive and maintains that the TV channels have also been sensationalising and crossing lines.
Several writers such as this scribe have been advocating media responsibility and accountability but restraining orders on media are not the solution. In fact, a healthy society cannot muzzle difference of opinion. Many Pakistanis believe that the Chief Justice of Pakistan is personally honest and the allegations against his son have been exaggerated. There is almost blind faith in the top judge among most in urban Pakistan. When there is such a strong support for the leadership then why fall prey to the exercise of contempt law? The judges will only enhance their credibility when they allow for the similar scrutiny as they allow for other organs of the state.
Sadly, the media discourse on the judiciary has been personal and not issue-based. If viewed in the larger context the case of Arsalan Iftikhar is a non-issue. A rich tycoon is settling scores for his delayed cases. The real issue is about millions of cases pending in the country and most of these cases fall under the purview of the high courts in the provinces.
The Supreme Court only sets the policy and that too with the consent of the high courts. In recent months, there have been no debates on what ails our justice system and how can we reform a crumbling structure.
A recent global comparison (report by the World Justice Project) places Pakistan at the bottom for the civil justice system and pretty low for the state of the criminal justice system. This is far more alarming than the reports on the persons of judges and other remarks that media blows out of proportion.
Those who find the HRW press release as scandalous and a conspiracy against Pakistan need to revisit the facts on ground. The bulk of Pakistanis outside the middle class drawing rooms are clamouring for rights, justice and security. The denial of justice at the grassroots level is a bigger conspiracy.
Pakistanis are frustrated and turning to violence or non state actors for dispute resolution. We will not be able to overcome this sorry state of affairs if we do not open up avenues of public debate and input into the way the country is governed and justice is administered.
Media should regulate itself and show more responsibility. Similarly, the courts should also keep themselves apprised of public opinion even if it entails hearing some unpleasant things. As the guarantor and enforcer of fundamental rights it is even more important to show caution and restraint.
Our democratic experience will not evolve if we impede avenues for public accountability and expression. A free and independent judiciary can only survive and prosper in a democratic society.
Another version of this article appeared in The News on Sunday.
The writer is Director Jinnah Institute, Islamabad. The views expressed are his own. His writings are archived at www.razarumi.com.