ISLAMABAD: Justice Jawwad S Khawaja of the Supreme Court (SC) said on Thursday that it must be kept in mind by all that the judges of the higher judiciary would never allow anyone to undermine the dignity of the apex court.
The SC took strong exception to a news channel and the Pakistan Electronic Media Regulatory Authority (Pemra) over a programme aired against the judiciary.
A three-member bench of the apex court headed by Justice Jawwad S Khawaja and comprising Justice Gulzar Ahmed and Justice Mushir Alam heard the petition filed by the Independent Media Corporation (IMC) on behalf of Geo Network against the negative propaganda by other TV channels and for resumption of its transmission on cable networks.
“It is learnt that the instant petition drew huge attraction”, Justice Jawwad S Khawaja asked Muhammad Akram Sheikh, counsel for Geo TV network at the start of the proceedings.Muhammad Akram Sheikh however, expressed his reservations saying that he felt harassed while taking up the case.
“We are very professional and we will deal with it professionally and we do know what our values are, thanks to Allah Almighty,” Jawwad S Khawaja remarked adding that everyone should know that they would not let anyone cause harm to the dignity of the Supreme Court.
Justice Jawwad S Khawaja refused to recuse himself from the bench hearing the Geo TV
case saying a judge took the decision to disassociate himself in accordance with the Constitution.
He said that it was the conscience of the judge himself which must determine his decision whether to sit on a bench or not.
Justice Khawaja questioned the regulatory body about its presence during propaganda against the judiciary. He asked where was Pemra when propaganda was aired against the judiciary. He said “for God’s sake recognise right from wrong”.
Zakir Malik, Pemra legal head, however, informed the court that they had forwarded the complaints to the department concerned after monitoring the said programme, adding he was hopeful of action being taken on it during the course of the day.
The petitioner, the Independent Media Corporation (IMC) prayed to the court to issue directives to restrain all channels from airing allegations against other channels or media groups. The petition was filed against the backdrop of a smear campaign against the television network by rival media groups kickstarted after a May 14 morning show aired a performance by some Qawwal.
The petitioner prayed to the court to order the law enforcement and investigation agencies and lower courts all over the country to submit copies of all the criminal complaints, FIRs and petitions filed under Section 22A that contained allegations of blasphemy regarding the show.
It was further requested to issue directives for consolidation of all the FIRs that might have been registered in various parts of the country and to restrain the law enforcing and investigating agencies from registering any new case, but to forward all pending and new FIRs containing allegations of blasphemy before the Supreme Court for eventual quashing of proceedings on them.
It was also requested to order the relevant law enforcing agencies in all the provinces to take required steps for protection of the petitioners, management and staff of the Geo, Jang Group, along with their offices all over the country.
The petitioner made the federal government through secretary interior, chief secretaries of the four provincial governments and Chief Commissioner, Islamabad as respondents.Similarly, the Independent Media Corporation filed a Civil Miscellaneous Application (CMA) in the Constitutional Petition No 51 of 2010 for revival of the said petition.
It was prayed to the apex court to order the revival of the titled constitutional petition in the interest of justice, equity and fair play; and may further be pleased to act strictly in accordance with the report of Javed Jabbar appointed as mediator with consent of the respondents in almost a similar episode and the mediation having been accepted by the respondents for reshuffling or blocking of the petitioner channels be restrained along with any other relief that the august court might graciously deem appropriate.
During the hearing Justice Jawwad S Khawaja pointed out to Akram Sheikh, counsel for Geo Television, that there was an objection from some quarters in respect of the constitution/impartiality of the bench.
Justice Jawwad S Khawaja said that the respondent or any other person having any objection against constitution of this bench might come to the court and the matter was adjourned to 1:00pm.
Later at 1:00 pm, when the court resumed the matter Attorney General Salman Aslam Butt appeared before the court and submitted that the federation had no objection to the hearing of this petition by this bench which included Jawwad S Khawaja.
However, one Sabir Shakir, Bureau Chief, ARY, Islamabad, appeared and stated that Mubashar Luqman who is an anchor person of ARY had sent him to state that he would like to engage a counsel in this case.
The court observed that there might be justification for this request though, prima facie, it did not appear so but there appeared to be some TV talk show aired last evening which might need to be seen as it appeared to be relevant in this context.
The court however, observed that in order to ensure absolute transparency in these cases, it was prepared to consider the objections which might appear from the aforesaid TV show to be against one member of this bench (Jawwad S Khawaja).
“It is possible that this objection has something to do with the news programme ‘Kharra Sach’ which was aired on ARY on May 21, 2014 (Wednesday). Therefore, we direct the registrar of the court to obtain the CD of the said programme which was aired on Wednesday and which needed to be seen as the same might throw some light on the basis or otherwise of any objection as vehemently urged by Sabir Shakir”, the court ruled in its order.
The court ruled that it would re-assemble at 2:00pm for the viewing of the TV programme. Meanwhile, the court directed its office to make arrangements for displaying relevant parts of the programme ‘Kharra Sach’ relayed the other day on ARY News Channel, through multimedia in court at 2:00pm.
Meanwhile, as the court resumed the hearing at 2:00pm, it viewed the programme ‘Kharra Sach.’ The court viewed two relevant clips of the aforesaid programme in the court through multimedia.
After viewing the relevant clips of the programme, the court observed that it was not for the present necessary to make any determination as to the nature of the excerpts from the TV programme.
The court further observed if there was any cause or matter which might require intervention in exercise of proceedings under any constitutional or statutory provision, that matter, needless to say, would proceed separately because that had no direct nexus with the matter at hand.
“The matter right now is as to whether one of us (Jawwad S Khawaja) should sit on this bench, the court ruled adding that the basis of the objection could be gathered from the second excerpt of the TV programme.
The court noted that it was in this excerpt that it had been alleged that because of a relationship (Jawwad S Khawaja) had with owner of IMC, he should recuse from the hearing of this case.
It was noted that the statement had been made by a gentleman named Aqeel Karim Dhedhi. The court however, ruled that it was quite obvious that he was totally unaware of the nature of the office of a judge and of the rules which had been laid down to ensure transparency and impartiality of benches hearing cases.
“Mr Dhedhi appears to be unaware that although the IMC owner happens to be the brother of the wife of my brother, Justice Jawwad S Khawaja said adding that he did not recall the last time they met, it might have been 20 years ago, 16 years ago or perhaps at some ‘Shaadi or Ghami’ which he did not recall at present.
“It is always for the judge himself to make a determination as to whether or not his relationship with any other person is such that he should not hear a particular case in which such person is a party”, the court ruled in its order.
The court further ruled that the Code of Conduct prescribed by the Supreme Judicial Council for judges of the superior courts includes Article 4 which states that a judge should not “act in a case involving his own interest, including those of persons whom he regards and treats as near relatives or close friends.
”From this it will be evident that only such persons can trigger recusal of a judge who are considered to be close by a judge”, the court ruled adding that the rationale of this stipulation is evident from its content.“It is clear that I have no basis for regarding or treating IMC owner as a near relative,” Justice Jawwad S Khawaja ruled in the court order.
The oath of office of judges of the Supreme Court is set out in the Schedule to the Constitution as per Article 178. It is expressly stated therein that the judge “will not allow [his] personal interest to influence [his] official conduct or [his] official decision”. Judges also swear under the Constitution to “do right to all manner of people according to law without fear or favour, affection or ill-will”. The Holy Quran in fact directs judges to act fairly, justly and impartially even if they are hearing cases involving their own relatives.
The above provisions of the Code of Conduct or oath of office or the verses from the Holy Quran do not impose a bar on a judge from hearing cases unless there is cause under Article 4 of the Code of Conduct reproduced above”, the court observed adding that no such cause exists in this case.
“In the present case, we may assume that the comments made by Mr Dhedhi may be in good faith, however, such comments before being aired on a TV channel licenced by Pemra could have been vetted or even in the case of a live telecast it should have been ascertained that the interviewee was aware of Article 19 of the Constitution and the law”, the court ruled in its order.
The court however, ruled that it did not intend to embark on any such inquiry as this would be a matter within the competence and jurisdiction of Pemra.
The court ruled that the Pemra should ensure that the provisions set out in Articles 19 and 19A of the Constitution are strictly adhered to.
These provisions have also been incorporated in the Pemra Ordinance and the rules framed by Pemra thereunder and also in the provisions of the licences which are issued by Pemra to various channels, the court ruled.
The court observed that it might be useful to record that all litigants at times made attempts to avoid hearing before certain benches but at times such attempts were not well intentioned.
“There may even be attempts to intimidate or malign judges or institutions of the state and thereby, to undermine such individuals or institutions”, the court ruled.The court observed that the hearings of this case at intervals today was significant, adding that courts were not to succumb to any remark, defamatory or otherwise. “It is the conscience of the judge himself which must determine his decision to sit on a bench or not”, the court ruled.
“We are very conscious and careful in noting that Mr Dhedhi may genuinely have felt the way he did when he said that one of us (Jawwad S Khawaja) should recuse from this case. Therefore, it might be for some other person or some other proceedings to deal with the utterances in the TV programme as reproduced above, the court ruled adding that they had no intention to comment on matters which were sub judice before this court and before other courts including accountability courts which are part of the judicial system of Pakistan wherein Mr Dhedhi might be arrayed as a party or as an accused.
“We are deliberately and consciously not recording any remarks or comment lest it should cause prejudice to the trial or to Mr Dhedhi in such pending matters”, the court ruled.
Justice Jawwad S Khawaja in the court order said that he did not find any reason whatsoever not to sit on this bench. He however referred to Article 19 of the Constitution which says, “Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, [commission of] or incitement to an offence.
The court ruled that barring the exclusions which had been mentioned in the said article, there could be no restriction imposed on the freedom of speech and expression set out in Article 19 of the Constitution.Meanwhile, the court adjourned the hearing till today (Friday).
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