The recent orders of Islamabad High Court to restrict Pakistani popular Journalist Mubashar Luqman from hosting TV programme on any of the Pakistani media outlets has raised several questions about the judicial activism and Freedom of expression in Pakistan. It is indeed a very unprecedented decision as the judiciary in any country is fundamental to the protection of human rights and freedoms including the Freedom of Expression. Such orders are uncanny from the Judiciary of a country (Pakistan) who voted in favour of Universal Declaration of Human Rights adopted by UN General Assembly on 10 December 1948. Universal Declaration of Human Rights, Article 19 clearly states,
‘Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers’.
The order of the apex court reminded me the famous verse of the second century roman poet Juvenal who said, ‘quis custodiet ipsos custodes’ (who will guard the Guards). In a democratic country the judiciary is supposed to be an essential check and balance on the other instruments of the government, ensuring that laws of the legislature and the acts of the parliament comply with international human rights and the rule of law. While the various segments of Pakistani society have extended an unparalleled support to Independence of Judiciary; the Pakistani Judiciary should appreciate the fact that Independence is not an end in itself. The independence of Judiciary should play a pivotal role in promoting freedom of expression and civil rights. Catherine Anne Fraser, Chief Justice of Alberta, Canada has once said, ‘We have independence for one reason – to protect the rights of our citizen’.
As reported by the News, ‘The court said that Luqman had crossed all the limits and his behavior was causing hatred against the judiciary. It also said strict action is taken against any channel who allows the anchor to conduct program’. While making such remarks, apex court should have considered that any restriction on expression or information must have a genuine purpose and demonstrable effect of protecting a legitimate reputational interest. In many countries across the world, superior Judiciary has already restricted the ability of government bodies, including judicial courts, elected bodies, State-owned corporations and even political parties, to bring an action against journalists for defamation. This is in recognition of the vital importance in a democracy of open disparagement of government and public authorities including courts. The apex court should not restrict the freedom of expression in such a way as there are plenty of opportunities available to Pakistani courts to defend themselves from criticism.
The petition filed against Mr. Luqman noted that “Mubashir Lucman on the ARY TV channel was extending the campaign against the former Chief Justice (R) Mr Justice Iftikhar Muhammad Chaudhry and judges of Supreme Court particularly Mr Justice Jawad S Khawaja in a clandestine manner.’’
This must be recognised that criticism on Judiciary by media is the recognition that independence and rights of the judges are not absolute. In democratic countries judges are often criticised savagely and severally by the media. However it appears from such orders that Judiciary in Pakistan feels sanctified. Equipped with so much power, there is a development of ‘arrogance of the office’ with a feeling of being untouchable.
Jurist a legal research service supported by University of Pittsburgh School of Law has noted about former Chief Justice (R) Mr Iftikhar Muhammad Chaudhry, ‘Pakistan's tenaciously independent chief justice also turned out to be political, arbitrary and irresponsible. Upon returning to office, he presided over the firing of judges without giving them the same due process he had demanded of Musharraf. He refused to accept parliamentary oversight of judicial appointments, threatening to overturn a unanimously passed constitutional amendment to that effect unless it was revised. Parliament complied to avoid a confrontation. Chaudhry also made unprecedented use of suo motu proceedings—the court acting on its own motions—to engage in unwarranted intrusion into the legitimate domain of the legislature and the executive.
Suo motu proceedings in defense of fundamental rights are good, but in case after case Chaudhry acted as if the Supreme Court was not a co-equal branch of government but a de facto legislature and executive branch. Further, Chaudhry used his discretionary powers to oversee, hire and fire government officials, intervening in governance areas ranging from economic policy to traffic management. He seemed to relish triggering constitutional confrontations with parliament and government, undermining the elected parliament and disrupting governance just when Pakistan was undergoing a difficult transition to civilian rule.’
One cannot ignore that while independent Judiciary in Pakistan formulae an important assurance, it also has the potential to act as a shield behind which judges have the opportunity to obscure possible unscrupulous conduct. For this reason, judges must conduct themselves according to ethical guidelines. In order to provide judges with clear rules of conduct, several countries have approved codes of ethics to regulate judicial behaviour. In some cases, judges have drafted these codes; in other cases, Governments have sought their input. In the international sphere, the Bangalore Principles of Judicial Conduct contain the set of values that should determine judicial behaviour. These values, which are reflected in most codes of conduct, are: independence, impartiality, integrity, propriety, equality, competence and diligence.
The legitimate public or media criticism of judicial performance is a means of ensuring Judicial accountability. The contempt proceedings or such orders should not restrict the freedom of expression. Dr M Cooray has rightly said, “the freedom of speech is the single most important political right of citizens. Without free speech, no political action is possible and no resistance to injustice or oppression is possible. Without free speech elections would have no meaning at all. Policies of contestants become known to the public and become responsive to public opinion only by virtue of free speech. Between elections the freely expressed opinions of citizens help to restrain oppressive rule. Without this freedom it is futile to expect political freedom or, consequently, economic freedom. Thus freedom of speech is the sine qua non of a democratic society’’.
