The government continues to adopt a carrot-and-stick policy toward the superior courts judges who are showing independence against spy agencies’ interference in judicial functions.
Although top government functionaries agreed to end the executive-judiciary clash through backchannel contacts, the executive authorities are still targeting the judges.
Senators from the treasury benches have been questioning the judges' conduct in the Senate for the last two days. Likewise, the Pakistan Electronic Media Regulatory Authority (PEMRA) has issued a notification, directing TV channels not to air any court proceedings.
The purpose of this notification is to ban the airing of judges' remarks on TV channels. Usually, PEMRA avoids issuing such guidelines without the approval of the superior judiciary. It is an open secret that a clash continues between the judiciary and the security establishment, with PEMRA choosing its side.
Lawyers are urging the Supreme Court to get an explanation from PEMRA regarding which law it has used to ban the reporting of court proceedings on TV channels.
The Press Association of the Supreme Court and the Islamabad High Court Journalist Association have condemned this notification and hinted at challenging it in court.
All eyes are on Chief Justice of Pakistan Qazi Faez Isa to see where he stands in the prevailing situation. CJ Isa has not supported the six Islamabad High Court (IHC) judges who, in a letter written on March 25, accused the country’s intelligence agencies of meddling in the affairs of the capital’s courts.
The contempt proceedings against Senator Faisal Vawda and MNA Mustafa Kamal are a big test for Justice Isa as it remains to be seen whether he will create a deterrent against defaming courts or not.
Pakistan Bar Council Vice Chairman Riazat Sahar condemned the PEMRA notification, declaring it a violation of Article 19 of the Constitution.
Former additional attorney general Tariq Mahmood Khokhar referred to US jurist Damon Keith, who said, "Democracies die behind closed doors.” He emphasized that democracy and the rule of law are inseparably interlinked.
"The rule of law requires that adjudicative proceedings must be fair; that all persons and authorities are bound by and entitled to the benefit of laws publicly promulgated and publicly administered in courts," he said.
Khokhar added that the principle of open justice requires that court proceedings should be reported in an open and transparent manner.
"The core basis of open hearings is that justice must manifestly and undoubtedly be seen to be done. PEMRA’s amended directive adversely affects the rule of law and its role in relation to that principle. It also repudiates the CJP’s decision allowing live broadcasting of Supreme Court proceedings.”
Abdul Moiz Jafferi advocate said, "The restriction on commentary which may influence a court is clearly something the courts have themselves laid down. However, the second limb of the notification attempting to limit the coverage of commentary from the bench is an absolutely unreasonable restriction upon the media."
Jafferi stated that anything a judge says or observes, if newsworthy, deserves reporting. "By allowing the livestream remarks to be reported but not others, is PEMRA trying to say the commentary of some judges is preferable to others?" he questioned.
"Regardless, these notifications and advisories issued by PEMRA carry no legal footing and are a leftover legacy from the Saqib Nisar era where the court attempted to muzzle contrary opinions through PEMRA. It is frustrating that this regulator isn’t put in its place."
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Advocate Umer Gilani said, "There can be no cavil with the idea of having a code of conduct for responsible court reporting, but the present prohibition by PEMRA goes much beyond that. A blanket ban has been imposed on live TV tickers about whatever is going on in court.
Prohibiting TV reporting of all conversation between judges and lawyers is an overbroad restriction on freedom of speech and therefore unconstitutional."
He added, "It’s not just about speech. At stake here is the principle of open justice which is enshrined in Articles 4, 10A, 19A, and Section 322 of the Criminal Procedure Code.
“If whatever happens in court is open to the public to hear, how can we prohibit the court attendees from relating what they heard to other citizens? Effectively, PEMRA is trying to impose a blackout on lawyers and judges, which is a direct infringement on the independence of the judiciary."
Enforced disappearance
A three-member bench of the apex court led by CJP Isa on January 3 directed the federal government to submit an undertaking in writing, signed by senior-most officers of the concerned ministries, that henceforth no one shall be picked up other than in accordance with the law.
The written order noted that during the course of the hearing, a reference was made to a bill submitted in the National Assembly with regards to the subject of missing persons, and that when it reached the Senate, it vanished.
"Therefore, we enquired who was the custodian of the Senate and were told that it was the chairman Senate, Mr. Sadiq Sanjrani, who was elected by those who were then in government.
“It is alleged that a federal minister’s efforts were thwarted by the chairman Senate, who was elected by the votes of the same party. This is a very serious allegation leveled against Mr Sadiq Sanjrani and pertains to missing persons.
“However, we note that the [former] Chairman Senate, Mr Sadiq Sanjrani, has not been arrayed as a party, therefore, unless the petitioner arrays him as a party, it would not be appropriate to attend to allegations made against him." The hearing of this matter is still awaited.
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