Everyone's a constitutional expert
It is amusing and worrying when those who advocate free speech lose their calm when their own views are questioned. There is a significant difference between celebrating free speech generally and celebrating it only when you agree with it.
Mr Hamid Mir and Mr. Absar Alam exhibited such a lack of respect for perspectives different from their own in a recent TV programme. The programme was meant to analyse the legal, social and policy implications of Mr Mir and Mr Alam’s action of approaching the Supreme Court of Pakistan (through a petition) to conduct accountability of (among others) journalists, owners of media houses, relevant government departments and, of course, Mr Malik Riaz. The petition also invites the SC or an appointed commission to devise a code of conduct for the media. Mr Osama Siddique — one of Pakistan’s most brilliant legal academics — questioned the wisdom of such a petition and all that it is asking the Supreme Court to do. Very clearly, and not just as a lawyer but as a citizen, Mr Siddique explained his reservations. The cogent arguments that he made can be accessed through YouTube. You can also access the coming off of gloves as far as Messrs Mir and Alam are concerned. Instead of debating the issues, they stooped to personal attacks against Mr Siddique. He was accused of defending Malik Riaz, was mocked for being a “constitutional scholar” and was told, “pata nahi aap bachon ko kia parhhatey hain”, “baahir say parh ker aa gaye hain”. Now I do not have to defend Mr Siddique. His credentials speak for themselves.
What is troubling is that anyone questioning our self-appointed media gods is seen as an enemy who must be discredited. Intellectual rigour and strength is not what characterises the shows hosted by these anchors so let’s not go overboard when dealing with someone who actually engages in intellectual rigor for a living. Mr Siddique was put down for having studied abroad (and therefore being disconnected) while both these anchors, in their introductory paras of the SC petition, mention having lectured at Harvard or holding a fellowship there. Bragging rights limited to some? So when they wanted to increase their credibility, they threw in the names of top schools. And when they ran into someone who actually is a Harvard graduate, this became a liability. This is sad and ridiculous at so many levels.
Less than 48 hours later, Mr Hamid Mir was on another show as a guest where he was telling us what Article 7 of the constitution means and how parliament cannot violate the basic structure when amending the constitution. Seriously? I think my right to information, and respect for my intelligence, includes not being misled by journalists pretending to be constitutional scholars. But Mr Mir should not worry. I will not take this to the Supreme Court. In fact I did something more effective, I changed the channel.
As a lawyer, I see severe issues with the recent petition filed by Messrs Mir and Alam. They are inviting hyper judicial activism, legislation from the bench and making a mockery of the “state-action” requirement that is an essential element before one seeks redress from our courts that are exercising constitutional jurisdiction. Mr Siddique raised these and other important issues. He also mentioned how constitutional freedom of speech is meant to protect speech and is not meant to allow policy making by courts — that is essentially the job of the legislature and the Executive. But why listen?
I can understand the issues that trouble these two and other anchors. Yes, many people in the “establishment” do not like all that the media does and they feel threatened. Yes, the Code of Conduct as formulated by PEMRA is imperfect and can be greatly improved. Yes, businessmen should not be paying off journalists and government should not use a secret fund to influence anyone. I concede all that. What I do not concede is that the solution lies with the Supreme Court. What expertise do judges have? Why can’t these people lobby in the parliament and PEMRA? Where do you draw the line of policy making if you are asking the Supreme Court to devise a code of conduct? It doesn’t matter if the Supreme Court forms a commission. It is still law making initiated by the Supreme Court and that is not on in a system that is based on separation of powers.
I have asked this question before and I ask it here again today: would the likes of Mr Hamid and Mr Alam celebrate executive or legislature run courts if the judiciary wasn’t doing its job?
The petition also raises the danger that the privacy of many individuals will be violated. This includes people from the media. The petitioners do not have to like this — they just need to respect this. If something is a crime, by all means, raise the issue and let the state machinery do its job. If you think PEMRA’s Code of Conduct is ineffective, raise the issue before legislators, in the media, organise a march, conduct a strike, invite all stakeholders and exert some pressure on PEMRA etc (Do something other than going to the SC!).
The media needs to realise that questioning it does not mean insulting it. If the media can question everyone’s motives, why can’t intelligent people question the media’s motives? And no the answers should not be coming from the SC. Media will not collapse and people of Pakistan will not lose basic rights if this issue goes through PEMRA and legislature. Ordinary litigants will lose a lot if another populist cause engages the apex court.
The truly ironic moment in the TV programme mentioned above came when our two anchors referred to deaths of media personnel. Their petition has nothing to do with the deaths of journalists who have sacrificed their lives. In fact the media, for one reason or the other, has not pursued the issue of missing journalists with as much vigour as one expected. And to go to the Supreme Court with this? Are Messrs Mir and Alam suggesting that they are satisfied with the way things turned out with the SC appointed commission regarding the late Saleem Shehzad? Courts cannot go out and do things.
If the ultimate aim is to have the SC or a commission devise a Code of Conduct who will enforce it? PEMRA of course. And therein lies the basic contradiction of whatever relief this petition is asking for. Will they ask SC to fix PEMRA’s rules, policies and motives each time the journos don’t like it? These journos are not willing to take the normal routes since they think SC is the only answer. So why have PEMRA then and why don’t they ask SC to run this and other departments? Or have weekly meetings where all departments report to SC? But that would be absurd you say? Well, maybe I should take this to the Supreme Court. Or maybe just change the channel and save a litigant a day in court.
The writer is a Barrister and has a Masters from Harvard Law School. He can be reached on email@example.com or on Twitter @wordoflaw