Since being freed from its shackles in 2002, the growth of Pakistan’s private media industry has been lauded as an important (if imperfect) check on political power. By exposing official corruption, Pakistan’s media is acting on the famous maxim of US Supreme Court Justice Louis Brandeis: “Sunlight is the best disinfectant.” While Pakistan’s politicians increasingly find themselves under the media microscope, the same principle does not apply equally to all of Pakistan’s institutions.
Earlier this month, the Public Accounts Committee (PAC) for audit reports related to the allotment of residential plots to three existing and twelve retired judges of the Supreme Court. The Supreme Court refused to provide any information to the PAC, referring to Article 68 of the Constitution which says that “No discussion shall take place in [Majlis-e-Shoora (Parliament)] with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties.”
It is hard to conceive how the discharge of the duties of a Supreme Court or High Court judge would involve receiving expensive residential plots. Nevertheless, the judiciary appears to be uninterested in exposing its own members to the same type of oversight considered essential for elected officials.
In one way, though the PAC got off easy. When real estate tycoon Malik Riaz accused Pakistan’s Chief Justice of corruption, he found himself facing jail time for contempt of court. Contempt charges have also been leveled against the former Interior Minister, Rehman Malik, former Law Minister, Babar Awan, Mian the owner of a private TV channel and two TV talk show hosts.
None of the defendants may not have much recourse. Article 204 of Pakistan’s Constitution allows the Supreme Court to punish any person who “scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt.” Regardless of whether or not a judge is involved in any crime or malfeasance, it may be illegal to say so.
Pakistan’s judiciary is not the only institution that would prefer to remain off limits to criticism. A defense committee in Pakistan’s Senate on Monday recommended that media criticism of Pakistan’s military should be stopped. The meeting, chaired by Mushahid Hussain Syed (PML-Q), concluded that criticism of Pakistan’s armed forces is “irresponsible behavior” that is harming the military’s reputation abroad.
Tahir Hussain Mashhadi (MQM) reportedly said that “no country criticizes its own armed forces and sensitive institutions but in Pakistan, the so-called analysts do so arguing unnecessarily about the excess of national defence budget,” a statement that must have amused Defense Secretary Leon Panetta, Gen. Stanley McChrystal, and others in the US military establishment.
Like Pakistan’s judiciary, the military too enjoys extraordinary protection from criticism. Article 63(1)(g) of Pakistan’s constitution – the article recently used to remove a democratically elected Prime Minister – disqualifies from membership in parliament anyone who,
“has been convicted by a court of competent jurisdiction for propagating any opinion, or acting in any manner, prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan.”
If Justice Brandeis’s maxim about sunlight being the best disinfectant is true, it should apply to all institutions equally. Only by opening national institutions to public oversight can governments limit abuse and scandal. By placing the judiciary and the military outside the realm of criticism, Pakistan is facilitating the very outcomes that it hopes to prevent – scandals and suspicions that threaten the reputation of critical national institutions.