The federal cabinet this week proposed to block media coverage and interview of politicians who are either convicts or under-trial prisoners, and directed the Pakistan Electronic Media Regulatory Authority (Pemra) to fulfill its “responsibility” and do the same.

Pemra’s legal mechanisms usually impose restrictions on subject matters and issues, and not certain classes of individuals. Much of Pemra's laws (eg Pemra 2015 Code of Conduct) relate to ensuring that a licensee, amongst other things, airs content in an objective manner and does not air content that is deemed to be obscene, against Islamic values, inciting hatred, justifying violence or containing aspersions against the judiciary or the armed forces.

Traditionally, the sub judice doctrine mostly bars coverage of cases that are before a court of law. The doctrine is primarily meant to protect a defendant’s right to a fair trial, as media houses often report on more than the events that transpire or are admissible in court. This includes dilating on stories from witnesses who are not supposed to testify, examining other evidence that has not or will not be presented before a court, disseminating information which may influence future witnesses or even disrupt the decision-making process of judges.

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While the media is legally not allowed to engage in dissecting sub judice matters, imposing blanket ban on media coverage on politicians facing trial or convicted politicians, even if such reporting is analytical and factual, prejudices the media’s right to freedom of speech and the public’s right to access to information.

Laws already exist to bar anyone, let alone politicians, from discussing matters that are sub judice. Article 204 of the Constitution empowers the Supreme Court or a high court to punish any person who "does anything which tends to prejudice the determination of a matter pending before a Court."

Clause 4 (3) of the Pemra Code of Conduct bars airing of sub judice matters which tend to prejudice determination by a court. However, such content is allowed to be aired if it is done in an informative and objective manner. In fact, the Supreme Court has lauded this clause for striking a delicate balance between freedom of speech and the right to information (Articles 19 and 19A of the Constitution) with fundamental right to be dealt with in accordance with the law (Article 4 of the Constitution) and the right to fair trial and due process (Article 10A of the Constitution).

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The United Kingdom's 1981 Contempt of Court Act also bars media publications that significantly discuss pending legal proceedings to the extent that justice is endangered to the point of influencing a court proceeding. However, a publication is considered to pose such a threat only if it creates a “substantial” risk in the adjudication.

This is why a blanket ban proposal on coverage of politicians facing trial and convicted politicians is problematic. It is perhaps based on the assumption that the airing of such content is only done by the media to A) glorify such politicians, sans objective discourse and/or B) discuss the merits of the politicians’ case before a court only, and not any other topics. This is at best presumptuous, and at worst draconian. The Supreme Court has held that by virtue of the Code of Conduct, great trust is given to the media and the journalist community that they will provide objective information about pending proceedings, while taking precautions that they do not pass subjective or prejudicial comments.

Pemra’s existing Code of Conduct is more measured than the cabinet proposal. For instance, the Code of Conduct does impose a ban on airing statements on a class of individual (ie members of proscribed organisations, as defined in the Anti-Terrorism Act of 1997). However, even that ban is not a blanket and all-encompassing one, as airing of such information is allowed if it exposes the said proscribed organisation's ideology and does not glorify it.

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The rhetoric that politicians’ interviews and/or media coverage will always be prejudicial to the public at large is in fact discrediting the media’s ability to analytically disseminate the news and taking away the public’s ability to absorb such information according to its own free will.

In the international sphere, the European Court of Human Rights (ECHR) has tried a number of media-related incitement cases (eg TV channels and print platforms distributing suspects’, terrorists’ and criminals’ interviews for the public). In all these cases, the ECHR carefully examined on a case-by-case basis as to whether media reporting was done to glorify criminals/terrorists (eg by providing a platform for preaching hate and violence), or whether such reporting was done in spirit to inform the public at large about the perils of such ideology.

The cabinet proposal, if effectuated, carries a serious risk of being unlawful. Journalistic recklessness should be regulated, but it should not be regulated on the basis that journalism is always reckless.

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