
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).