Daily Times

There is little doubt that at the twilight of his term in office, the Chief Justice has carved out quite a legacy that will outlast many of his peers, past and present, on the Bench. In years, his role as chief justice would be critiqued, analysed and debated on different fora. With treatment of his decisions by the future courts and discussion otherwise; his legacy would continue to grow and take form, long after he has left the office. The indomitable chief, has yet again, authored a brilliant opinion, this time on the issue of trial by press in Suomotu Case No. 28 of 2018.

Despite the enabling regulatory regime and accepted journalistic norms that our media and prime time anchors are expected to be trained in and cognizant of, like the Court notes: “Sub-judice matters are being openly discussed in talk shows thereby acting as de facto Courts, announcing what they deem would and should amount to justice.” Anchors increasingly have started to act as judge, jury and prosecution; all at the same time — in mostly a clueless forty-odd-minutes-circus! The anchor, who was issued a show cause notice to appear before the Court, “tendered an unconditional and unqualified apology.” It is all too familiar a sight for the Bench and the lawyers at the Courts. Like before, the Court was magnanimous.

In the opinion, the Court answers these two questions: Whether in any circumstances, it is permissible to comment in media on a sub-judice matter. And if so, then what is the extent of such comment on courtroom proceedings.

Pursuant to Articles 19 (freedom of speech, expression and press et al) and 19A (right to information) of the Constitution, there is every right to comment on sub-judice matters. The answer to the first question is in the affirmative; responds the Court. But the devil lies in the acceptable scope of such comments. The second question attracts the thrust of Court’s analysis. The Court argues that both Articles 19 and 19A are qualified rights, subject to reasonable restrictions imposed by law. Further they need to be balanced against other fundamental guarantees like Articles 4 (right to be treated in accordance with law) and 10A (right to fair trial) of the Constitution.

In addition to competing civil liberties, in so far as law is concerned, the Court elucidates that law does impose reasonable restrictions. Electronic Media (Programmes and Advertisements) Code of Conduct, 2015, in its clause 4(3) prohibits airing of subjective commentary on sub-judice matters. In addition, The Contempt of Court Ordinance, 2003 that defines, inter alia, civil and judicial contempt, further outlines the contours of fair comment on sub-judice matters. And fair comment is simply objective reporting on the facts of the case, without spins or slants on the merits, that risk causing prejudice to rights of the parties before the Court.

At the heart of the debate, as the Court observes, is the need for a balance to be struck between freedom of expression, an enshrined right in our constitution, and the administration of justice; a protected value

At the heart of the debate, as the Court observes, is the need for a balance to be struck between freedom of expression, an enshrined right in our constitution, and the administration of justice; a protected value.

Protected values and constitutional principles like separation of powers and independence of judiciary etc., may not necessarily be written in the text of Constitution or laws, but evolve over a period of time, due to the manifest realizations emerging from formal structures and from conduct or predisposition of the officers in coordinate branches.

Administration of justice that includes a fair trial by an impartial judiciary, even under our International Commitments, pursuant Article 14(2) of the ICCPR, like the Court explains, trumps the right of expression under Article 19.

The courts are not immune to outside influences such as public opinion or debates. And it needs to be acknowledged that judges are humans too. Even if the person making the comment in media on merits of the case, believes he or she is doing public service, there may be a substantial danger of prejudice to the trial of the action, because such debate or comment could influence the courtroom proceedings.

The anchor admitted before the Court that as a “journalist he lacked the legal acumen to analyze a document submitted as evidence in the matter pending before this Court.” He admitted that he lacked expertise and knowledge of the law of evidence, etc., and in discussing a purely legal issue, he risked causing serious prejudice to the case.

This is a recurring problem and the Court rightly pointed out “the journalist community and media at large is either misinformed or if not misinformed have silently tolerated such demeanour for so long that the internationally accepted standards for responsible journalism are so far from their line of sight that they fail to see its limits that they so carelessly and recklessly exceed without so much as a speck of remorse.”

Press too needs to exercise greater discretion and restraint.  A strong and clear-headed editorial policy, especially in electronic media, is quintessential to regulate the content on sub-judice matters. Despite the laws in place, press needs to do its bit.

The writer attended Berkeley and is a Barrister of Lincoln’s Inn

Published in Daily Times, November 26^th 2018.