The other day, while viewing random news channels, I could not believe that a public prosecutor of the Federal Investigating Agency was sharing his personal opinion on the same case in which he presented a government organization in a court of law a couple of days ago. He gave a contradictory view and comments on one of the open cases. It got me! I asked around in a circle of friends who are qualified legal experts if it is lawful and ethically correct for a serving public official who is himself part of a legal or investigative team to give his opinions on media about a subjudice matter. Moreover, is it ethical for a public servant to air his personal view differently than his position in the court and on electronic or social media? Is it misconduct as per the internal accountability frameworks of the organization? What recourse is available for the parties involved? But what intrigued me more was the role of media and media persons. Will we watch more and more media trials on our screens in the coming days, or is it already happening?
I tried to find out what happens in some older democracies in such situations. In the USA and the UK, the media cannot electronically record trial proceedings at any stage. We do see hand-made sketches of the trials and, at times, positions, expressions and postures of the accused or other persons by the artists but in no way are these not more than just a subtle message between the lines. The same is the practice in Pakistani courts. Except in some cases, we have seen videos of vandalism by the lawyers meted out against the judges in some courts of law in Punjab and KP. Therefore, the electronic coverage of trial courts is protected.
The presence of court reporters in the courtrooms at all levels in a common practice in Pakistan. For high profile cases, journalists are given access either because of the fact of a well-known accused or the complainant. In such cases, court administration facilitates the media representatives, either anchor persons or reporters, so they can cover the court proceedings for media outlets. This has happened in the case of former Prime Minister Imran Khan, where IHC issued lists of selected media persons who could be present in the court during the hearings. Similarly, wide coverage was given to cases of former prime ministers including Nawaz Sharif and Yousuf Raza Gilani for instance. It shows that courts are also prone to acknowledge the power of the media and are taking steps to accommodate their presence in the courtrooms.
This access of the journalists to court rooms has been justified under Article 19 and Article 19-A, where freedom of speech and expression and access to information is also guaranteed per the Constitution of Pakistan. Although giving an opinion about a subjudice matter is tantamount to contempt of court, we can see that speaker, after providing this verbal notice on the same program, keeps harping on the same issue without any fear of consequence. It has happened so frequently in recent times that there are open speculations about cases of political developments now and then. More pressure is put on the honorable judges and courts by even talking about court procedures of contempt of the court and challenging it indirectly to be presented in future litigations. Again, this argument is based on Article 19, and unlimited freedom is solicited with tongue in cheek.
Right to follow due process of law was included as per the United Nations Declaration on Human Rights 1946, to which Pakistan was a signatory. Still, the right to a fair trial was not included in the constitution of Pakistan in 1973 although superior judiciary had taken care of this important fundamental Human Right in one way or the other. Article 10-A, “Right to Fair Trial,” was included in the list of fundamental human rights in 2010 via the introduction of the eighteenth amendment. It reads as follows: To determine his civil rights and obligations or in any criminal charge against him, a person shall be entitled to a fair trial and due process.
What lacks or is deliberately misused in contemporary times is the lack of distinction. Between the rights of the offender and accused vs. the rights of the complainant and the restriction on media outlets to not eliminate the distinction between the two. In the past two decades, with rising of media, technology and the digital world, it is difficult to stay out of extralegal procedures which are not only taken up by media and journalists but also by people on social media platforms in the form of random, invalidated and unjustified hashtags, social media status, posts and in the shape of text messages and videos. These actions not only violate and affect the legal procedures, adjudications of the competent authority, and court procedures but also result in putting a label on an accused before a formal trial. The labelling theory, presented in the late 1960s, was mainly oriented toward the social stigma attached to the delinquent or charged. For the masses, the mere loud label is good enough to turn a person’s reputation, social standing, career and relationships to ashes or the most minor irreparable damages are caused by recording digital footprint in the form of media trial, unsolicited opinions and extrajudicial judgment by self-proclaimed judges of society in the form of social, digital and print media.
The constitution is a guiding principle of any democratic state. However, basic principles of ethics should be ingrained more than ever in the masses, especially in contemporary journalism and media outlets. It will not only help in effective judicial procedures. It will also result in unprejudiced decisions by the courts, considering the principle of “innocent until proven guilty” and burden evidence: The prosecution has to prove the presented case beyond any doubt to ensure fair judgment.
In a nutshell, overly investigative journalism and media prosecution can camouflage the judgment of the council, committee or judges - considering them normal humans like any of us. In addition, needless media interference and aggressive narrative building can also exert pressure on judges; the stress caused by print, digital and social media can ultimately result in the false narrative construction of the public, which can affect the judicial verdict under extraneous pressure.
–The writer is a social scientist.