Chief Justice of Pakistan (CJP) Qazi Faez Isa’s assurances to permit fair criticism are facing a litmus test with the emergence of a Joint Investigation Team (JIT) – formed to probe the campaign against Supreme Court’s judges – as concerns are mounting that it will have a chilling effect on media freedom.
The JIT, established under Section 30 of the Prevention of Electronic Crimes Act (Peca) 2016, is causing apprehension within the media landscape.
The JIT will be convened by the additional director general of the Federal Investigation Agency’s (FIA) cybercrime wing, according to an interior ministry notification.
It also comprises representatives of the Intelligence Bureau, Inter-Services Intelligence, the Pakistan Telecommunication Authority (PTA), and the deputy inspector general of Islamabad police. The team can co-opt any other member if required.
The JIT’s terms of reference are to “ascertain facts behind malicious social media campaign attempting to malign the image of the honourable judges of the Supreme Court”.
The committee will also identify and bring culprits to book in accordance with relevant laws, present challans in relevant courts and recommend measures to prevent such incidents in future.LegalityAs the JIT begins its investigation, questions have surfaced regarding the legality of its formation
Former Sindh High Court president Salahuddin Ahmed, who was part of CJP Isa’s legal team, said that maligning a judge is not an offence under PECA.
“Using electronic media to lower the dignity or intrude into the privacy of a natural person is an offence under section 20 PECA, but it is a non-cognizable offence (meaning that FIA cannot directly initiate investigation/lodge FIR but a complaint by the aggrieved person has to be filed),” he said.
Salahuddin stated that the scandalisation of a judge is contempt of court but it is for the court to take notice and not FIA.
“Section 20 PECA requires a criminal complaint. Who is the complainant?” he further questioned.
Salahuddin also said that for a JIT to be formed or even an ordinary Investigation Officer (IO) to investigate requires, firstly, that an offence falling within the domain of FIA is alleged to have been committed.
There is neither anything in the notice nor even a word said in court (to the best of my knowledge) as to what that offence may be, he added.
It is pertinent to note that a three-judge special bench of the apex court, led by Justice Ijazul Ahsan, hearing the same suo motu case, had sought legal assistance from the Attorney General for Pakistan at that time, Khalid Jawed Khan.
It pertained to the interpretation of Section 27 of the PEMRA Act, as well as Section 20 of the Prevention of Electronic Crimes Act (PECA) 2016, which is allegedly misused to curtail freedom of the press.
On September 13, 2021, Justice Ijazul Ahsan noted that there was an observation that the FIA was misusing its powers, a matter that the court would not permit.
Another judge, Justice Munib Akhtar, also noted that the freedom of the press should not be regulated through PECA.
Interestingly, the bench, whose January 13 order was criticised, is now considering the plea against the harassment of journalists by the FIA.
Meanwhile, there is also apprehension among journalists that if the SC endorses the JIT, then media persons will be restrained from positive criticism. Journalists may hesitate to question judges’ orders without fear.
The ongoing discussion also questions why the government is demonstrating efficiency in suppressing voices against the judiciary following the January 13 order.
It is worth noting that even though a malicious campaign against the incumbent CJP started after the announcement of the judgment in the Faizabad Dharna case in February 2019, some state elements were also involved in that campaign.
Since taking oath as CJP in September of last year, there has been an exemplary cordial relationship between the executive and the Supreme Court. Even the superior bars, led by the Independent Group, are aligning with both the executive and the judiciary.Press freedom under threatIt’s noteworthy that pro-PML-N journalists are advocating for the establishment of JIT to punish media journalists aligned with PTI, raising questions about the judges’ conduct during CJP Isa’s tenure.
Now, the decision rests with the Supreme Court on whether it will endorse the JIT today (Tuesday). If the JIT proceeds, the freedom of the press may come under threat.
During Monday’s hearing, Attorney-General for Pakistan Mansoor Awan stated that honest criticism of a judgment or an order is not a crime, and no coercive action will be taken, nor will a criminal case be registered in this regard. He extended an undertaking on behalf of the federal government.
It is learned that representatives of press associations met with the Attorney-General for Pakistan.
The AGP assured that no one will be arrested or harassed, and those fairly commenting or criticising the judgment shall not be persecuted. However, he mentioned that notices cannot be withdrawn, and journalists will have to appear, and respond, and only then can inquiries be closed. Reportedly, 36 journalists have been summoned by the FIA.
