RAJA RENT WALEY

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THE temperature in Pakistan's hyper-activist Supreme Court must have reached boiling point after Raja Pervez Ashraf was chosen on June 22 as the candidate of the ruling Pakistan Peoples Party (PPP) for prime minister. His predecessor, Yousaf Raza Gilani, was thrown out of the job this week by their Lordships.

The PPP had initially chosen Makhdoom Shahabuddin, an aristocratic former health minister, as the next prime minister, on June 20. But by the following day it had to hurriedly ditch him, after a warrant was issued for his arrest. While he was health minister, the ministry approved the import of a huge quantity of a chemical that can be used to manufacture ecstasy pills and other narcotics.

By Friday, instead of walking into Prime Minister's House, Shahabuddin was in court, seeking pre-arrest bail.

The choice of Ashraf is deeply problematic. He is known to all Pakistan as "Raja Rental", for presiding over deals which involved the government paying cronies to set up temporary or "rental" power plants, to plug the crippling shortfall in electricity supply, while he was energy minister.

The rental plants were often established with ageing equipment, though the government was charged for new gear, and the blackouts only grew. Rental power was deemed a "total failure" according to a Supreme Court judgment on the issue earlier this year, for producing high cost and insufficient electricity.

That verdict found that officials involved, including Ashraf, had "violated the principle of transparency" and must be investigated by the anti-corruption watchdog, the National Accountability Bureau, to see if they were "getting financial benefits" out of the "scam".

But more than the courts, the people of Pakistan will feel aggrieved at the appointment of a man whose ministry oversaw over a national disaster, pursuing questionable schemes while simply watching the problem grow. Ashraf, 61, became known for continually predicting the imminent end of the electricity shortage, only to have to eat his words before unabashedly issuing a new rosy prediction.

In recent days, the relentless summer heat has triggered violent protests across Punjab, the province that houses over half the population, over the electricity shortages, which means that fans and refrigerators don't work. There is misery for households while industry is being shut down.

Some in Pakistan see even darker clouds ahead. The appointment of Ashraf will also not impress the military, which is the ultimate arbiter of Pakistan's political process. The timing of the move on Shahabuddin was seen as highly suspicious, not least by him. The Anti-Narcotics Force, which is headed by an army general, is pursing Shahabuddin.

Conspiracy theorists -- which includes most people here -- think the object is to force early elections or even create such chaos that an excuse will be found to impose an unelected government of technocrats, by the military and courts working together. Elections have to be called by March 2013 anyway.

The legal-political circus is set to continue, so Ashraf's tenure could be very short lived. Gilani was disqualified from office by the Supreme Court for refusing to write a letter to the Swiss authorities to request the re-opening of dormant money-laundering cases against the president, Asif Ali Zardari, who also heads the PPP.

Ashraf is expected by his boss, the president, to resist court orders. As the legal arguments now having already been exhausted with Gilani, the court will probably give Ashraf little time to comply before also dispensing with him.

Then yet another prime minister will be needed. Pakistan can forget about any actual business of government getting done.

MEDIATRIAL OR FAIR TRIAL IN MEDIA?

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Condemning the accused

“When your case is weak, take it to the media, instead of the court,” says Thomas Sowell. Laura Alber says, “If O J Simpsom was guilty, the media was responsible for his acquittal.” Both could be true. We are all witnesses to what is shown on the television every day when persons under arrest are brought to the court or are taken back to prison. A host of photographers and videographers gather and do not allow the accused and the police to even move. The suspects under arrest are depicted as if they are already declared guilty. Press freedom is a cherishable fundamental right but it is not absolute. It is subject to restriction and limitations mentioned under Article 19 of the Constitution.

It is time to sit back and ponder over the reasonable trends of the media; whether the media is contributing in holding fair trials or rendering them unfair and may be illegal? The individual who becomes the subject of press or television ‘items’ usually has his or her personality, reputation or career dashed to the ground almost forever, after the media exposures. When, years later, the court proceedings end in a clean acquittal or acquittal for lack of evidence beyond reasonable doubt, the affected person can resurrect his or her lost position. In the above context, few questions arise. Does the media in such cases permit the law to take its own natural course? Is pre-trial condemnation part of the law or fair trial? Can any body say who is guilty or innocent until the courts give their final verdict? The fate of victims and witnesses appears to be no better; the publicity they are subject to makes it impossible for the identity of victims of crimes and protection of witnesses. They are made vulnerable to pressures and intimidation by the offenders.

For the above facts, the subject of trial by media has, therefore, assumed extraordinary importance. There is need to educate journalists and media managers and to make them understand and respect the rights of their victims. They must be told not to intrude with the fundamental right to a fair trial of an accused. They also must understand and respect the boundaries of the freedom of press and at what point they cross those limits. Even the courts come under pressure or sometimes get influenced by media blitz. No one is fit to be who is likely to be influenced except by what he sees or hears in court and by what is judicially appropriate for his deliberations. However, judges are also human.

According to the Indian Supreme Court: “It would be mischievous for a newspaper to conduct an independent investigation of its own for a crime for which a man has been arrested and to publish the result of such investigation while the trial is in progress. A trial by newspapers, when trial by a competent court is going on, must be prevented. Such investigation on part of a newspaper would amount to interference with the courts of justice.” (AIR 1961 SC 633). During the investigation or trial no one is allowed under the constitution and law, consciously or unconsciously, to make a public opinion against any of the parties.

For the same reason, under law and even under the code of conduct, judges are not expected to speak or make unnecessary comments publicly, take such comments seriously and make up their minds. There are consistent grievances from some quarters that nowadays judges speak through words of their mouth instead of their judgments during the midst of proceedings. This is particularly happening in the cases of political nature, wherein, one way or the other, political controversies are also involved. There is a growing view that judges make, prima facie, unnecessary but deliberate comments knowing that they would be aired and published by the media to form public opinion towards a particular direction.

Sometimes, the comments by judges also give impression that undue publicity is being sought which also seriously affects the rights of the parties appearing before the court. It would be pertinent to quote the Code of Conduct for superior judiciary; Article 4 of the Code reads: “Functioning as he does in full view of the public, a judge gets thereby all the publicity that is good for him. He should not seek more. In particular, he should not engage in any public controversy, least of all on a political question, notwithstanding that it involves a question of law.” Last but not least, I may also state that the impact of pre-trial exposure by the media is infringing upon the fundamental rights of those facing criminal trials before the courts such as the rights to ‘life and liberty’ guaranteed under Article 9; fundamental rights of protection of equal treatment, person and reputation under Article 4, and political rights under Article 17 of the Constitution.