Covering the courtroom

December 20, 2020

On the role of the press in ensuring due process of law

On December 16, several news outlets, reported that singer Meesha Shafi and eight others had been “declared guilty” by the Federal Investigation Agency (FIA) for “running a vilification campaign” against singer Ali Zafar. This was the latest in the long saga of misreporting by the news media that lays bare some key shortcomings of our criminal procedure and how legal and gender-sensitive news is reported in Pakistan. These merit consideration because it points to how media, with the power to set narratives, and the law, impact marginalised groups.

For one thing, a declaration of guilt by the FIA runs afoul of its own rules. The Prevention of Electronic Crimes Investigation Rules, 2018 (PECA Rules) designate the FIA only as an investigative agency under the Prevention of Electronic Crimes Act, 2016. None of the powers described in these rules encompass determination of guilt. In fact, investigations into offences against dignity and modesty of natural persons, the charge against Shafi and others, are to be done with utmost respect for privacy of the accused and the aggrieved person. The PECA Rules bar the FIA from disclosing identities of those involved, unless required by law or for furthering the investigation. One cannot see how this disclosure furthered the investigation. Yet, how did the contents of the interim challan submitted to court, make it to the press? In fact, how did the identities of the accused persons make it to the press as early as September, when the registration of an FIR was allowed?

This also points to a problem in how the media approaches such matters. Given the intricacies of the law, courtroom reporting is always a challenging task. Most reporters and editors approach this task without legal training so that minor inaccuracies should be excused.

However, this has to be balanced against sensationalist news coverage that can form an impediment to justice. Such reporting, involving the most attention-grabbing details, is common in Pakistan – from pronouncements of guilt by the police; key details of the identity of an accused who is still at large (as happened with accused Abid Malhi in the Motorway rape case) to confessions of guilt in dramatic terms like iqbal-i-jurm. This is done with little regard for the fact that confessions before the police are inadmissible as evidence, or that premature release of the identity of the suspect may compromise investigation and trial.

An accurate reporting of the events would simply be that the FIA has submitted an interim challan to the court for commencement of a trial.

When it comes to determination of guilt, as the FIA is reported to have done in the Shafi-Zafar case, it is not the job of the police or FIA to declare innocence or guilt. When working on a case, the FIA and the police are acting in an investigative capacity. They forward findings of such an investigation to a court via a prosecutor. It is the court’s job to determine guilt or innocence and sentence the guilty. In fact, once charges are presented before the court, as has now been done in Ali Zafar’s complaint, the court may outright reject the charges, or weigh them and proceed to trial. After the trial, the accused may be determined to be guilty and sentenced accordingly. Appeals may follow. Each of these steps is an integral part of the right to fair trial. This is also a fundamental reflection of the system of separation of powers that defines our state: it is the job of the legislature to make laws, the executive branch to carry laws into effect, and the judiciary to interpret laws. The FIA is part of the executive, and the determination of guilt is the job of the judiciary, requiring the application of the independent mind of a judge.

However, irresponsible reports and alleged leaks from the FIA jump across all these essential steps to quickly pronounce guilt or innocence, perhaps to answer to a desire in the public for summary judgement. This becomes a fundamental impediment to the accused’s right to fair trial. In doing so, the press also abdicates its fundamental duty to deliver accurate news to the public. An accurate reporting of the events would simply be that the FIA has submitted an interim challan to the court for commencement of trial.

Meesha Shafi’s claims of harassment are the not the first, but they are certainly among the most high profile. Despite the relative influence she commands and the public scrutiny of the case, one sees regular misreporting, sensationalism and sheer inability to cover both sides of the story. Reporting harassment is an extremely challenging undertaking which puts a woman’s livelihood, dignity and wellbeing at risk. Inconvenient as it may be, this case is being watched closely as a litmus test for handling of similar harassment claims in future, down to whether women report harassment to begin with. Unfortunately, it has only shown us a glimpse of precisely how marginalised groups are disadvantaged by social and legal structures.

The writer teaches law at the Shaikh Ahmad Hassan School of Law, LUMS

Covering the courtroom