‘Media Trial Can’t Be Allowed’: Pak SC Issues Directives To Regulate Media Discussions In Sub-Judice Matters [Read Judgment]
“Any news or discussions in programmes shall not be aired which are likely to jeopardize ongoing inquiries, investigations or trials.’
The Supreme Court of Pakistan on Thursday issued some important directives to Pakistan Electronic Media Regulatory Authority (PEMRA) to regulate ‘media trial’ in sub-judice matters.
A three-judge bench headed by Chief Justice of Pakistan Mian Saqib Nisar said that any discussion on a matter which is sub-judice may be aired, but only to the extent that it is to provide information to the public which is objective in nature and not subjective, and no content, including commentary, opinions or suggestions about the potential fate of such sub-judice matter which tends to prejudice the determination by a court, tribunal, etc., shall be aired.
Suo motu proceedings were initiated by the court against ARY News anchor Arshad Sharif for his comments in a talk show ‘Power Play’, which were discussing court proceedings regarding the inquiry by FIA against former President Asif Ali Zardari.
Drawing assumptions, inferences and conclusions from evidence or the documents filed in a case and stepping into the shoes of a judge on broadcasted programmes may not only convict the accused in the eyes of the public regardless of whether he is ultimately exonerated by a Court, but certain comments or opinions may be voiced which could potentially instill bias and prejudice in the minds of the judges, particularly to those who are dealing with the sub judice matter, thereby violating the fundamental rights under Articles 4 and 10A of the Constitution of the persons involved in such matter, the bench observed.
The court added that where the fate of sub-judice matters is being decided on public forums, not only the minds of the public are being influenced, but also potentially the minds of the judges seized of the sub-judice matter, and lawyers and investigators, etc. involved in such matter, this would obviously tend to prejudice the sub-judice matter.
The court also observed that law in India regarding protection of the right to fair trial and protection from prejudicial comments with regards to sub-judice matters, in some ways, is similar to the law in Pakistan. The bench also quoted judgments of Indian Supreme Court and some high courts in this regard.
Particularly referring to strong observations made against ‘media trial’ by the Supreme Court of India in R. K. Anand Vs. Registrar, Delhi High Court, the bench said: “While we may not share the strong views in the above quoted paragraph entirely, it is not uncommon for the media to sensationalize issues of public importance and deduce guilt before any substantial finding has been recorded regarding the person undergoing trial/investigation/inquiry, and where this results in the mere risk of a substantial danger of the judges seized of the matter no longer remaining impartial, the right to fair trial of the person facing trial/investigation is irreparably lost.”
The court issued these directives to Pakistan Electronic Media Regulatory Authority (PEMRA):
- The Code of Conduct ensures that the freedom of speech and the right to information (Articles 19 and 19A of the Constitution) are protected, and at the same time provide that the discussion of sub judice matters must be conducted in a manner which does not negatively affect another person’s fundamental right to be dealt with in accordance with the law (Article 4 of the Constitution) and the right to fair trial and due process (Article 10A of the Constitution).
- All licensees should be sent a notice/reminder of their basic ethics and objectives, standards and obligations under the Code of Conduct, particularly Clause 4(10) thereof, in that, editorial oversight should be observed prior to the airing of all programmes and any programme, the subject or content of which is found or deemed to be in violation of the Code of Conduct in its true letter and spirit, should not be aired by the licensee;
- Any discussion on a matter which is sub-judice may be aired but only to the extent that it is to provide information to the public which is objective in nature and not subjective, and no content, including commentary, opinions or suggestions about the potential fate of such sub-judice matter which tends to prejudice the determination by a court, tribunal, etc., shall be aired;
- While content based on extracts of court proceedings, police records and other sources are allowed to the extent that they are fair and correct, any news or discussions in programmes shall not be aired which are likely to jeopardize ongoing inquiries, investigations or trials;
- In compliance with Clause 5 of the Code of Conduct, all licensees should strictly ensure that an effective delaying mechanism is in place for broadcasting live programmes to ensure stern compliance with the Code of Conduct and Articles 4, 10A and 204 of the Constitution;
- In compliance with Clause 17 of the Code of Conduct, an impartial and competent in-house Monitoring Committee shall be formed by each licensee, with intimation to PEMRA which shall be duty bound to ensure compliance of the Code of Conduct;
- With regards to the Monitoring Committee, we direct that licensees include (for each of its meetings) at least one practicing lawyer of at least 5 years or above practice, with adequate understanding of the law to advise the licensee regarding any potential violations of the Code of Conduct by programmes to be aired in the future;
- In compliance with Clause 20 of the Code of Conduct, each licensee shall be required to hold regular trainings of its officers, employees, staff, anchors, representatives etc. with regards to ensure compliance with the Code of Conduct with the schedule and agenda of these regular trainings to be intimated to PEMRA through the Monitoring Committee;
- If any licensee is found to have violated or failed to observe the Code of Conduct in its true letter and spirit, particularly Clause 4 of thereof, and/or Articles 4, 10A and 204 of the Constitution, strict and immediate action should be taken against such licensee in accordance with Section 33 of the Ordinance. The Supreme Court or any High Court retains the power to take cognizance of the matter and shall exercise its powers under Article 204 ibid where such Court is of the opinion that it is appropriate in the facts and circumstances of the case for it to do so.
The court also accepted the unconditional and unqualified apology tendered by the news anchor and warned him to be ‘extremely careful in the future’.