TV ratings are through the roof. From morning to night, the talking heads update viewers about the minutest details of Panamagate, the scandal which could not only bring down Prime Minister Nawaz Sharif, but also severely damage the political aspirations of his daughter, the heir apparent, Maryam Nawaz.

During the day, every little observation, every little comment, from those hearing the case, the affected members, and their stalwarts is being scrutinised with a microscope. Later in the evening, experts don their finest and take to the screens to analyse and predict, defend and counter attack.

This Panama-fascination is not limited to television. On dinner tables and restaurants, at dhabbas and in bedrooms, all one gets to hear these days is, what’s going to happen next, what are the courts going to do, will Messers Nawaz Sharif and Co. survive?

The way Panamagate has played out on our screens, most people have already formed their judgement on the case. "Nawaz Sharif is guilty, his whole family is guilty", is something one gets to hear often.

"The Supreme Court will not let the country down," is another popular sentence.

What’s interesting, however, is the fact that the matter is currently under judicial consideration, also known as sub judice. Technically speaking, matters which are sub judice, are not open to discussion and can draw the ire of the courts, under Article 204 of the constitution. It reads: "A court shall have power to punish any person who, a) Abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court; b)  Scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule, or contempt; c) Does anything which tends to prejudice the determination of a matter pending before the court; or d) Does any other thing which, by law, constitutes contempt of the Court."

Considering the above, certain key questions arise, the most important being, is the on-going media discussion amount in any way to contempt of court?

Senior journalist and anchorperson Nusrat Javeed thinks so. He asks, "Saying that either the funeral of law or that of the PML-N will happen, is that not contempt?" What Javeed is referring to is a recent comment by senior politician Sheikh Rasheed, during a prime time talk show on cable tv.

"The 24/7, maligned coverage of the case is clearly causing prejudice in the determination of a pending matter," says Khalid Ishaq, an advocate of the Lahore High Court. "It can be taken cognizance of, under Article 204 of the constitution." 

Ishaq further explains how this coverage is creating prejudice. "What you [the media] are doing is creating, shaping popular opinion. This has been happening since the time of Iftikhar Chaudhry [former Chief Justice of Pakistan]. When this opinion is made immensely popular, it becomes near impossible for the adjudicators of justice to not take its pressure, whether or not they ultimately decide according to the popular opinion or not."

He adds that there are at least two petitions in the Lahore High Court (to which Pemra has been made a party) that there is a continuous violation of the constitution happening, and that Pemra has been issued notices on the same as well.

Is the matter so cut and dry? Perhaps international law can add another dimension. In countries such as the United States and the United Kingdom (and the larger Commonwealth), the justice system is based on a jury. If, one of the parties can prove, beyond reasonable doubt, that even a single member of the jury has been influenced, in any manner, then the jury is dismissed, and a new jury formed, and the case reheard.

However, in Pakistan, there is no jury. Instead, the judge (or judges) is/are the all in all.

"There is a stark difference between a juror and a judge," says Barrister Sardar Mohammad Ali. "Where a juror is an ordinary member of the community, a judge has at least two decades of experience behind him, and he is bound by numerous laws to adjudicate on matters."

These laws and restrictions include section 24A of the General Clauses Act which reads that "Public functionaries are duty bound to decide applications of citizens after judicial application of mind".

"With the years of experience behind him, and the numerous restrictions and laws that bind his actions, to say that the judge will be swayed easily by what is happening on the media is an unnecessarily broad generalisation," says Barrister Ali.

In British law (on which most of Pakistani law is based), the contempt of court act 1981 is the main instrument that defines the boundaries in which contempt of court may take place. Section 2 reads: "1) The strict liability rule applies only in relations to publications… or other communication in whatever form, which is addressed to the public at large or any section of the public," 2) "…which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced", and 3) "…if the proceedings in question are active… at the time of the publication".

Why, then, have the courts allowed/are allowing the media circus to continue unabated?

Nusrat Javeed thinks that the courts have put up with the media coverage "because they are emerging as a power group… and enjoy being the focus of attention."

However, Barrister Ali provides another dimension. He believes the main reason why the courts have not acted against all and sundry on tv is because of the fine distinction between fair comment and malicious intent. "If an anchor or analyst comes on screen and analyses the situation, right or wrong, without malintent, the courts will let it pass."

He adds, "On the contrary, if they [the courts] feel that what is being said or aired is malafide, they will act."

When exactly did the media start discussing sub judice matters? While Ishaq believes it all started with the Lawyers’ Movement, Javeed believes that the white papers published during General Zia’s dictatorship were the first instance of a ‘media trial,’ albeit, then the state machinery was using these white papers to build a case against the imprisoned Zulfikar Ali Bhutto.

We’ve come a long way since then. "The media has the right to become as intrusive as one could be on issues like Panama," says veteran editor and former president of the South Asia Free Media Association, M. Ziauddin. "There could be some channels or newspaper adhering to their professional ethics and there could be some who are not, but I think by and large the coverage has been rather professional. There are mistakes and blunders, but that happens when you have so many channels and so many newspapers. There is not a good critical mass of trained professionals, it will take some more time for professionally trained people to enter the profession."

On the flip side, Ziauddin feels that the courts too need to improve their professionalism. "Newspapers have committed blunders, run manipulated news stories with malicious intent, channels have too, but by and large the judiciary, both the lower and superior judiciary, have tried to remain on the right side of the media and have not taken action when they should have."

Still, the fact that the media coverage continues unabated, coupled with the fact that only specific instances such as the Nehal Hashmi outburst and the Ahmed Noorani piece have been taken up by the court, may suggest that the courts are taking a liberal approach to the reporting being done by newspapers and channels.

"The courts may not like to be seen as curbing the freedom of expression," says Ziauddin. "If this is the attitude of the superior courts, then perhaps many of the transgressions we [the media] commit would be ignored by the court."