Thou shalt not judge

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Mubashir Lucman and Meher Bukhari in a behind-the-scenes TV grab of an interview with business tycoon Malik Riaz on DunyaTV

The curtain lifts: an obscure talk show broadcast on the Internet from Washington reveals monetary transactions allegedly involving Chief Justice (CJ) Iftikhar Muhammad Chaudhry’s son, Dr Arsalan Iftikhar. A few days later, Malik Riaz, a real estate tycoon who runs the biggest construction business in Pakistan, speaks at a press conference, claiming that 340 million rupees have changed hands between his son-in-law and the CJ’s son; he also accuses the latter of running the judiciary like a ‘Don’. Next come a series of events which apparently have nothing to do with Iftikhar or his alleged benefactors and accusers: an elected prime minister is sent packing, an arrest warrant frustrates a senior parliamentarian from becoming the new head of the government and when a new prime minister is finally agreed upon speculation becomes rife as to how many days he will stay in office. Then, the curtain drops.

In between the accusations of impropriety against Iftikhar and the fall of outgoing prime minister Yousuf Raza Gilani, the judges also scrutinise the role and ethics of the media and review, reject and bin a ruling by the Speaker of the National Assembly. A case of one institution putting itself above all others? Apparently, yes. This is especially troubling at a time when that institution’s own conduct is not beyond reproach — the risks of its strikes against the executive and parliament could be grave for the nascent and perpetually-threatened parliamentary democracy inPakistan.

While it took the first 19 days of last month for the entire drama to unfold, there are signs that it has been long in the making — and not just because Gilani was being tried for contempt of court for months. About eight months ago, a Pakistan Peoples Party (PPP) Senator who is also a Supreme Court (SC) lawyer, met Chaudhry and complained about the suspect deals involving his son. “The CJ dismissed the allegations and refused to see the documents brought by the senator-lawyer,” says a senior lawyer privy to the meeting.

Some time later, Chaudhry Aitzaz Ahsan, who appeared in the SC as Gilani’s lawyer and who was a senior leader of the movement that campaigned for Chaudhry’s restoration, apprised the CJ of his son’s reportedly suspicious activities. “Ahsan also met Iftikhar twice inLahoreon the instructions of the Chief Justice to inquire about the allegations, which he flatly denied. Ahsan then told the CJ that his son was not willing to reveal the truth,” says a source who is familiar with the nature of these meetings.

After local news channels started reporting and discussing Riaz’s allegations, the court immediately took up suo moto hearings. The stories of Riaz’s subsequent ‘fixed’ interview with the Lahore-based DunyaTV channel soon led to the formation of a SC commission to look into the role of the media in the entire case and recommend professional and ethical guidelines for news coverage and talk shows.

Many at that stage believed that the impossible had happened in Pakistani politics: two of the greatest tormentors of thePPPgovernment and Zardari – the judiciary and the media – were finally coming face-to-face exposing the skeletons in their own cupboards. Interested outsiders and independent observers wondered how the judiciary would handle allegations of impropriety against a family member of the top-most judge of the country, having hauled many senior members of the ruling coalition and their offspring into courts over more or less similar charges. There was also a lot of interest regarding how the media would go about discussing allegations against Dr Arsalan Iftikhar when it has never brooked any restraints or limitations in discussing allegations against politicians.

The media’s role came under further spotlight when Chaudhry convened a full court meeting of all the SC judges on June 15, making Dr Abdul Jabbar, the head of the Pakistan Electronic Media Regulatory Authority (Pemra), stand in the dock and explain as to why he failed to take action while the judiciary was being ridiculed on television talk shows. As the CJ reprimanded the Pemra chief, the footage of Riaz’s interview could be seen playing on a big screen in the meeting room.

This was also the first time inPakistan’s history that a full court meeting was aired live. Justice (retd) Tariq Mahmood, a stalwart of the pro-Chaudhry lawyers’ movement, points towards this rather extraordinary step and says: “This is unprecedented. There is no example in the past when a full court meeting, which is supposed to discuss administrative issues, was opened to the media.”

The meeting also seemed to have gone against the code of conduct for the judges of the Supreme Court and the high courts, notified by the Supreme Judicial Council onSeptember 2, 2009. The code says “a judge must decline resolutely to act in a case involving his own interest, including those of persons whom he regards and treats as near relatives or close friends.” The same code also talks about the limits to the publicity that a judge can seek. “Functioning as he does in full view of the public, a judge gets thereby all the publicity that is good for him. He should not seek more,” reads the code. It is in the light of the latter provision in the code of conduct that Mahmood says that the “judges are not supposed to be shown on television”.

Yet Mahmood was aware that nothing was to come out of all this that could hurt the judiciary or the media, not at least in the short run. “Everything will fizzle out,” he told the Herald in mid-June even whileIslamabadwas abuzz with speculation about the possible outcome of this judges-versus-journalists contest.

That the subsequent events have proved him right is no consolation to Zardari, Gilani, thePPPand their partners in the ruling coalition. The sword of further judicial activism aimed at prime ministers and parliament continues to dangle over their heads (see Democracy).

Many senior lawyers and jurists, in the meanwhile, worry that the judiciary is moving away from its fundamental functions in its efforts to maintain the media-driven pace and anti-government direction of its activism. Mahmood says the SC has gone too far into exercising its “extraordinary jurisdiction” under Article 184(3) of the Constitution. This article allows the court “to make an order” on “a question of public importance with reference to the enforcement of any of the Fundamental Rights” and all suo moto hearings derive their legitimacy from this constitutional provision. By doing so, he says, “the court is ignoring its primary responsibility which is to deliver justice. Instead of delivering justice to ordinary litigants, the court has focused on extraordinary jurisdiction.”

Pointing to a recent suo moto by the SC on the reports that four women were killed in Kohistan district after a tribal jirga there found them ‘guilty’ of clapping at a wedding ceremony, he says: “Millions of rupees have been spent on the case by sending teams through helicopters to verify the allegations.” Now that it has been proved that the women are alive, “no action has been taken against the people who made the allegations,” Mahmood adds.

Another extraordinary instance of the SC exercising its “extraordinary jurisdiction” was the suo moto hearing against actress Atiqa Odho after bottles of liquor were reportedly found in her luggage atIslamabadairport in June 2011.

Unlike Mahmood, however, there are lawyers who are afraid that they could face the wrath of the court if they speak out against this trend. For instance, a senior Islamabad-based lawyer points to a family case pending since 2000 at the SC; he does not want his name mentioned. “The case number is Civil Appeal 1143/2000 (Noor Bibi vs Brahim Khan); it was filed in April 1983 and, after decisions by the trial court and high court, it has been pending in the Supreme Court for the last many years,” he says.

The number of pending cases at the SC has indeed reached staggering proportions. According to the recently published annual report of the SC, which covers the period between April 2010 and December 2011, 8,220 cases were pending at the principal seat inIslamabad, 474 cases were pending at the Karachi registry and 6,152 cases were yet to be decided atLahoreregistry. InPeshawarandQuetta, 1,840 and 560 cases were pending respectively. In the last six months, between the start of December 2011 and end of May 2012, another 649 cases were added to the list of the pending cases at the SC, says a well-informed source.

In its annual report, the SC also acknowledged that the number of pending cases was so high that it would require 10 additional months to dispose of them at the current rate of disposal. The report said the reason behind the vast number of pending cases was that judges were not available to adjudicate on ordinary lawsuits as they were required to sit on benches hearing constitutional cases. The report said that the court took up 136 constitutional cases under Article 184(3) of the Constitution, including 38 suo moto hearings. Out of this, 46 constitutional petitions and 29 suo moto cases were disposed of during the period that the report covered.

The judges’ code of conduct, however, declares that a “judge shall take all steps to decide cases within the shortest time … and make every endeavour to minimise suffering of litigants by deciding cases expeditiously … A judge who is unmindful or indifferent towards this aspect of his duty is not faithful to his work, which is a grave fault.” The less said about this, the better.

What is surprising is the absence of debate on these issues in the media. While a few people, such as the former Supreme Court Bar Association chairperson Asma Jahangir have openly spoken about the SC’s conduct, the impact of its suo moto hearings on the delivery of justice as well as the rule of the law and the political and human-rights consequences of the SC’s verdicts, the media has been at best silent and at worst trying to curry favour with the judges. Embroiled in an internecine competition, television channels are using talk shows, news bulletins and even distorted revolutionary poetry and over-the-top slogans to great effect in their desire to be seen on the right side of the judiciary.

Adnan Rehmat, the executive director of Intermedia Pakistan, believes that such broadcasts are not part of the media’s primary role as the watchdog of public interest. “The media has taken a distinct position in favour of the SC. Unabashedly they are siding with the SC,” he says.

It is in the light of such real and perceived ‘transgressions’ that many within the media and civil society have spoken about the need for regulating the media. But at least one recent proposal to regulate the media has backfired due to stiff resistance by both journalists and owners of media houses. When in February this year Pemra circulated a proposal containing draft regulations for electronic media content, most media houses, analysts and anchor persons shred it to pieces, calling it a government attempt to muzzle the media because it was revealing official corruption and misgovernance.

Senior journalist Amir Mateen believes such behaviour stems from the media’s unwillingness to accept any regulation, from within and without. “There are four ways to keep a check on the media. First is libel/defamation laws, second is government control, third is internal checks and fourth is public pressure,” he says. “The media is not willing to accept any of them.”

Whether the media continues to behave in the same defiant mood after the two-member SC commission, comprising Justice Jawad Khwaja and Justice Arif Khilji, comes up with its recommendations is anybody’s guess. Meanwhile, the judiciary, the media as well as the executive are all looking like Olympic gold medallists that have tested positive for using banned substances.

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