Media and rule of law

Freedom of speech and press are the hallmarks of a free society. Media educates and informs people. It helps them form opinions on vital issues. The Constitution of Pakistan guarantees freedom of speech and press under Article 19. The flood of information channeled by the press and electronic media however sometimes brings along the ugliest side of a society. Barbaric and brutal killing of a young girl, in the heart of Pakistan’s capital Islamabad, was condemned widely. Crimes of heinous nature are reported. Rise in crime is a harbinger of a complete collapse of administrative and justice systems in Pakistan. Criminals hardly bother about harsh punishments provided in the penal code(s). They know that the system is vulnerable. Incompetence, corruption, lawlessness and shocking insensitivity apart, but more worrying is the lowliness our society has fallen to. Inhuman and barbarous acts no more bite our conscience. History of mankind informs us that crime, corruption, apathy and callous and unrepenting attitude of those entrusted with the affairs of the state lead to a doomsday. Criminal gangs will soon rule streets all across the country if media stops reporting these crimes.

After a crime is reported by the media the police springs into action and goes to the other extreme. Minar-e-Pakistan incident is in point. By rounding up people indiscriminately ultimately weakens investigations. Courts convict on evidence. Despite hundreds of billions of rupees doled out to the provincial governments liberty and safety of people is in great peril while the elite enjoys security and protocol to the fullest at the expense of common people.

The Noor Muqaddam case caught media attention. There are new reports/comments about this case in the press and on social media almost every day. A careful examination and analysis of the content of social media and press reporting about this and other cases would show that most of the press reports and discussions on TV channels tread on the verge of affecting a free and fair investigations and trials in those cases. The verdict on the guilt or innocence is in the domain of a court of law but it seems that anchors, reporters and some criminal law experts (only on TV) are taking over the role of courts. If these cases are left to the police there is every likelihood that these matters would eventually go in oblivion.

This raises an important and hitherto a less reflected aspect of the whole affair. What are the limits of free speech and freedom of press and media in relation to the commission of a crime and reporting about a criminal matter under trial? Another concomitant issue is: does it not affect free and fair trial that might ultimately undermine rule of law in society and jeopardize liberties of others?

Steps between the registration of the first information report (FIR), appearance of the accused before a Court for remand for investigation and then submission of a final report (challan) by the investigating officer, who is usually of a low rank, usually after a long time to the trial Court are crucial for the outcome of a case. It is here that the fate of a case is sealed. Fair investigation is part of a fair trial. This Report prepared by a police officer is the anchor-sheet of a criminal case and generally at this stage the system is manipulated in different ways.

Media reporting affects investigation. It may keep a check on the investigating officer but since a number of media persons are unfamiliar with law and interim reports (zimni) are hardly accessible to the press, manipulative tactics go unnoticed. The code of procedure, a bible of criminal law, came into force more than a century ago (1898). It had the underlying presumption that the police were incorruptible. Fairness and independence of investigation was jealously guarded by the courts. A survey of the law reports from the colonial time and even many years after Independence would show that courts would hardly make any negative observation about poor investigation. Famous dictum of the Privy Council in the Khawaja Nazir Ahmed’s Case (1945) was followed for many decades. But then things started deteriorating. Like other departments, police department also became a victim of interference. High Courts would then interfere as the police were unwilling to perform the statutory duties. Thus, fences erected to protect fair administration of justice stood eroded. Today some of TV anchors and law experts adjudge a crime before even a matter reaches court’s roaster. Every criminal, howsoever heinous his crime may be, is entitled to due process and fair trial. The law still presumes his innocence till proven guilty by lawful evidence. These are constitution’s guarantees for us all against mob justice.

Media coverage of sub judice legal issues started more commonly with the advent of judicial activism in Pakistan. In 2007, with the removal of a Chief Justice and house arrest of other judges of the superior Courts newly empowered electronic media came to the forefront. It is certain that had not media come out openly in support of judges and lawyers, the General would have got away with it. Afterwards, court proceedings of cases ran almost live on TV networks. Public courts were held in their evening shows. Discussions in these shows were reflected in the next day court proceedings. There was no point of return then. Proceedings of the Panama Case (2017) went on a similar pattern.

Floors of the temple of justice are slippery. Unless hands of judges firmly hold on to the columns of law and their feet are on the surer grounds of justice and fairness and glamorous beams of publicity lights are not stopped with the opaque materials of reason and virtue, as depicted symbolically in blind lady of justice, courts will continue returning popular decisions. To secure foundational values of fair trial and rule of law and to create a balance between competing rights of fair trial and free press and freedom of speech, Courts in the common law countries have laid down some guiding principles. American and European cases may be helpful but there the trial by jury is a constitutional right. Our Supreme Court has attempted to evolve a test for local conditions. Convictions were set aside in a number of cases in America on the ground of pre-trial publicity and particularly on the effects of confessions (Riedu, Estes and Shepard cases cited in Skilling v. United States 2010). The Supreme Court of Pakistan in a suo motu case (PLD 2019 SC 1) laid down some guiding principles. In an earlier judgement, PBA v. Pemra (PLD 2016 SC 678) rules for reporting on matters pending before Court were laid down. These principles are however floundered with impunity. It is high time that these principles are enforced by the courts.

Copyright Business Recorder, 2021