Justice Qazi Faez Isa showed little respect for the press: Supreme Court

ISLAMABAD: The Supreme Court on Thursday observed that by showing little respect for the press, Justice Qazi Faez Isa has disparaged their efforts, which is unjustifiable.

A 10-member larger bench of the apex court, headed by Justice Umer Ata Bandial and comprising Justice Maqbool Baqar, Justice Manzoor Ahmed Malik, Justice Mazhar Alam Khan Miankhel, Justice Sajjad Ali Shah, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Qazi Muhammad Amin Ahmed and Justice Amin-ud-Din Kh, issued detailed reasons in dismissing the appeal of Justice Qazi Faez Isa seeking live broadcast in the review petition of Presidential Reference

Last year in April by majority of 6 to 4, the court dismissed the plea of Justice Qazi Faez Isa seeking live broadcast of his review petition while four judges supported the plea of Justice Isa of live broadcasting of his instant review petition.

The court, however, had recognized the right of the people to have access to information in matters of public importance under Article 19-A of the Constitution. Justice Umer Ata Bandial, Justice Sajjad Ali Shah, Justice Muneeb Akhtar, Justice Qazi Muhamamd Amin Ahmed, Justice Amin-ud-Din Khan and Justice Yahya Afridi dismissed the petition.

While Justice Maqbool Baqar, Justice Manzoor Ahmed Malik, Justice Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah dissented from the majority judgment. Justice Yahya Afridi, however, in a separate note held that the relief sought by the petitioner would “negate the very spirit of the oath taken by the petitioning judge”.

On Thursday, the court released detailed reasoning, authored by Justice Munib Akhtar for dismissing Justice Qazi Faez Isa’s appeal for live broadcast of the proceedings. “Insofar as his expressed anxiety about incorrect reporting is concerned that, with respect, shows little respect for the press and vloggers/bloggers and belittles their efforts and reporting, which is not warranted," Justice Munib Akhtar held.

The judge held that in any case it is an accusation (whether stated expressly or impliedly) for which the court cannot provide a remedy unless (which is altogether a different matter) the reporting falls within the parameters of contempt as set out in Article 204 of the Constitution.

No doubt any alleged misleading reporting of court proceedings (unfortunate as it may be and as to which we record no finding whatsoever) is of acute discomfiture to the party concerned, says the detailed reasonings.

Justice Munib Akhtar further held that if therefore the learned petitioner’s primary aim was to disseminate his narrative to the public at large, this task can be easily performed, and has been duly performed all along by the journalists and vloggers/bloggers who have throughout closely followed all the proceedings, including his arguments, in court.

The judge noted that the primary reason put forward by the learned petitioner was his and his family’s constant public humiliation and degradation at the hands of the respondents.

Now even if it be accepted that the learned petitioner’s reputation (and that of his family) has been tarnished by the acts of the respondents in the manner as contended, no cogent reason was put forward as to how hearings in the present matters, held according to settled practice and time honored principles, would prevent the alleged negative publicity surrounding him from being dispelled, the detailed reasons stated.

Justice Munib Akhtar held that after all, the court (of course this Bench) sits, and was sitting, as an “open court”, a term which has been defined in Black’s Law Dictionary, at page 1263) as being a “court session that the public is free to attend”.

This obvious point could not be denied and the learned petitioner very fairly conceded the same. However, his insistence was upon the anxiety that arose from the fact that even if the public was allowed to enter the courtroom, this access was subject to limitations such as space constraints (only intensified with the advent of Covid-19).

As a result, he submitted, the vast majority of the public would be excluded from observing the review hearings. “This apprehension of the learned petitioner is, with respect, without force”, Justice Munib held adding that for it to be accepted would mean that until the advent of present-day means of communication and broadcast, which have only been around in the modern era, there have never been open and public hearings in the courts of law.

The judge noted that what has happened for many centuries prior thereto and is accepted as such even today all around the world — that is that the open court system is quite sufficient to ensure transparency and openness in the judicial system and of court proceedings — would be cast in doubt, if not abandoned altogether.

Furthermore, it is to be noted that the public, which is always welcome to sit in the open court proceedings, includes members of the press (and also, which is a distinctly recent phenomenon, vloggers and bloggers), the judge noted adding that they are free to witness court proceedings and frequently do so.

“Certainly, they appear to have attended in droves to witness the proceedings both in these review petitions and the proceedings in relation to the hearing of the petitions under Article 184(3) from which these petitions emanate," the judge added.

In view of the above discussion, we therefore concluded that the preliminary objection taken by the learned AAG had to be sustained and, with respect, the CMA dismissed as not maintainable, on account of being incompetent in the review jurisdiction of the court.

The court noted that the learned Additional Attorney General (AAG) in reply raised a preliminary objection that needs to be considered first.

The learned AAG opposed the application on two main grounds that the application was not maintainable as it had been filed in review jurisdiction under Article 188 of the Constitution, which by its nature was limited; and there was no constitutional or statutory right available which provided for public broadcast and/or live streaming of proceedings of the court.

The court held that the foregoing is dispositive of the CMA. However, it would not be inappropriate to say something about the substantive law questions raised in the CMA, even if such be only on a tentative and provisional basis.

The foregoing are the reasons for our short order, notedabove, in terms of which the CMA was dismissed, the detailed reasoning concluded.

"We are aware that judicial systems around the world are experimenting with cameras in the courtroom. Some are regularly broadcasting /live streaming their proceedings while others are participating in pilot projects. In the former category, we have the UK and Canadian Supreme Courts who have permitted live streaming of their cases since long (the links can be found on their official websites). In the latter group, we have the State and Federal Courts of the USA, all of which are at varying stages in terms of allowing broadcasting of their hearings.

"We have already expressed the view that the relief sought through the CMA is novel. As a result, there have been no judicial pronouncements by this court on the merits and demerits of allowing public broadcast and/or live streaming of Court proceedings. However, the decision rendered by the Indian Supreme Court, noted above, provides insight into the factors which may be considered by a Court while deciding a petition seeking such relief, and the manner in which it is to be disposed of. The matter in Swapnil was in essence a public interest litigation filed by a group of public-spirited persons who sought “Supreme Court case proceedings of constitutional importance having an impact on the public at large or a large number of people to be live streamed in a manner that is easily accessible for public viewing” and for “guidelines to be framed to enable the determination of exceptional cases that qualify for live streaming and to place those guidelines before the Full Court of this Court”.

The court allowed the petition but emphasized the issues which had to be sorted out before such live streaming could be permitted.

A few of these are listed below for reference:

a How will the live streaming project be phased;

b. In what categories of cases will live streaming not be

permitted;

c. What types of communications will not be streamed;

d. Would Judges/Court have power to disallow live streaming in

the interests of justice;

e. How would the identity of witnesses, accused and

complainants who wished to remain anonymous be protected;

f. What equipment would be used to live stream proceedings;

g. In what manner would live streaming be done;

h. How much time lag will be provided during the live streaming to ensure that sensitive/confidential information is not revealed;

i. How would the cameras be positioned; and

j. Would the Court retain copyright over the recorded

proceedings?

17. A somewhat similar approach was taken in NDPP, the other case noted above from South Africa. Although that matter was only concerned with the broadcast of criminal trials, the principles laid down appear to be of general application.

In that case the court accepted that trial court proceedings could be televised but it did not set down any fixed rules to regulate such broadcast and instead left it to the discretion of each trial court to determine whether a case before it is fit for live telecast.

The Supreme Court of Appeal also acknowledged that in allowing the broadcast of court proceedings, the following stakeholders’ interests would need to be

considered:

a. The interests of the prosecuting authority, the accused and the public to hold a trial that is fair and is seen to be fair;

The interests of the media and the public in maintaining freedom of the press and in ensuring open justice; The interests of the participants in the trial process; and The interests of the Court and the public in maintaining the dignity and decorum in the administration of justice.

It is significant that these judgments confirm that a decision on public broadcast and/or live streaming cannot be taken hastily.

Instead, it is a matter which requires careful consideration of multiple factors and participation of the different stakeholders involved in the judicial system.

As a result, this exercise cannot be carried out on the judicial side but can only be deliberated upon on and be approved by the court in its administrative manifestation. This is evident from the experience of the Indian Supreme Court which referred the matter of live streaming to the Chief Justice for further action.

"In fact, even in this Court similar matters have been determined by the Full Court sitting on the administrative side, e.g., approval for setting up of video links for hearing cases at the principal seat and the branch registries was given by the Full Court after an extensive discussion. This was followed by the constitution of an IT committee which was tasked with examining the matter and recommending appropriate solutions. At no stage was the issue referred to in, or decided by, a judicial order.

"In our view, there appears to be a certain overlap (both technologically and otherwise) between granting permission for hearings through video link and for permitting public broadcast/live streaming of court proceedings.

"Accordingly, keeping in view the evolving practice of the courts around the world and acknowledging the benefits of technology for the justice system, we refer the matter of public broadcast and live streaming of court proceedings to the Chief Justice, so that he may place it before the Full Court for deliberation and appropriate action.

"The foregoing are the reasons for our short order, noted above, in terms of which the CMA was dismissed, the detailed reasoning concluded."