how to aviod defamation

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Media Managers Companion SeriesInternews Pakistan

Media Managers Guide to Pakistani Broadcast Law

w t Av id

Defamati n

How to Avoid

Defamation

How to Avoid

Defamation


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How to Avoid

Defamation

Media Managers Companion SeriesInternews Pakistan

Media Managers Guide to Pakistani Broadcast Law

Researched by

Muhammad Aftab AlamMatiullah Jan

This guidebook for media managers was made possible through supportprovided by the Mission to Pakistan of the U.S. Agency for InternationalDevelopment, under the terms of Award No. 391-A-00-03-01002-00. Theopinions expressed herein are those of the author(s) and do not necessarily

reflect the views of the U.S. Agency for International Development.


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This guidebook is produced by

Internews Pakistan2004


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CONTENTS

Introduction

Chapter 1. What is defamation?

Definition

Any action

False statement

False representation

Verbal

In writing

Visual

Reputation of person

Injury

Publication/Broadcast

Circulation

Necessary parties to defamation suit

Chapter 2. The procedure

Part I: Defamation as criminal case Filing of complaint

Jurisdiction of the court

Preliminary examination of complainant and complaint

Cognizance of offence

Investigation or enquiry

Issuance of proc ess

Trial of the case

Framing of charge

Collection of evidence and examination of witnesses

Arguments and pronouncement of judgment

Appeal, reference and revision

Part II: Defamation as civil case

Defamation notice Response to the notice

Consulting and hiring of lawyer

Suit for defamation and jurisdiction of the court

Registration of suit

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Appointment of pleader or advocate

Appearance of parties in the court of law

Written statement

Settlement (framing) of issu es

Issues

Onus of proof

Production, impounding, return and calling for of documents

Summoning and attendance of witnesses

Adjournments

Hearing of the suit

Examination of witnesses

Arguments

Judgement and decree

Appeal

Chapter 3. Defense against defamation charges

Freedom of expression

Truth or justification

Fair comment

Privilege

Absolute privilege

Qualified privilege Privileged communication

Permitted statement

Apology

Printing of correction

Chapter 4. Penalties Criminal penalties

Imprisonment and fine

Civil remedies/Punishments

Apology

Publication of truth

Monetary fine

Imprisonment

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Execution of decree


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Chapter 5. Contempt of court law 35

What is contempt of court? 35

Civil contempt 36

Action against civil contempt 37

Criminal contempt 38

Action against criminal contempt 39

Judicial contempt of court 40

Action against judicial contempt 41

How the courts proceed in contempt of court cases 41

Notice 41

First hearing 42

Right to cross-examine 42

Defense against contempt charges 42

Fair comment 43

Fair reporting 43

Innocent publication 45

Protected statements 45

Substantial detriment 46

Apology 47

What if found guilty: the right to appeal 48

Chapter-6. How toavoid unnecessary litigation 51

Headlining a story 51

Language 51

Reliable sources 52

Off-the-record & on-the-record 52

Recording, filming, and making notes 53

Right to reply 54

Documentary evidence 54

Personal stakes 55

Knowledge about Pakistani laws 56

Legal consultants 56

Chapter-7: Conclusion 57

Annexure


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PAKISTAN

IntroductionThe book you hold is the second guidebook produced by Internews

Pakistan, as part of its Media Managers Companion Series. This fresh volume

explores the intricacies of defamation and contempt laws of Pakistan. One

may recall that the first handbook of the series focused liberalization of

electronic media and the broadcasting laws in Pakistan.

These guidebooks aim at helping build an open, diverse, and socially

responsible broadcast media. Being handy and practical, these guidebooks

make it easier for local journalists to understand their legal rights and

responsibilities. In an easy-to-understand language and format it is explained

in the following pages how media men should take recourse to justice as and

when the situation arises. Understanding your legal rights is now even more

important considering the outbreak of private broadcast sector in Pakistan.

The evolving regulatory laws will have profound impact on the countrys

media and journalists.

The present volume opens with basic definitions of defamation and

contempt laws of Pakistan, as they existed in December 2003. In Chapter 1 the

concepts of defamation has been explained. It also sheds light on the main

parties in a defamation suit, like plaintiff and defendants that may also include

the editor, reporter and the publisher.

In Chapter 2 an effort has been made to explain the procedural norms of a

defamation case in two parts. Part 1 deals with the court procedure involved in

a defamation case filed under criminal procedure .Part 2 addresses defamation

charges pressed under civil laws. Both sections explain various stages of the

case proceedings starting from receiving a notice to the stage of

decree/judgment by the court and the right to appeal.

Chapter 3 looks at defenses available to the journalists against defamation

charges. In chapter 4 penalties, punishment and amount of damages claimed

and decreed are discussed. This is followed by Chapter 5 that focuses

defamation of judges in other words the contempt of court laws of Pakistan.


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The chapter sheds light on the procedure involved and defenses available to

journalis ts in such cases be sides how to a void conte mpt charges i n the first

place.

In the same fashion, chapter 6 is all about prevention rather than cure as

far as the defamation laws are concerned. How to avoid defamation in the first

place is the focus of this chapter the dos and donts of journalism.

Considering that the laws explained herein would keep incurring changes,

the guidebook must be read in conjunction with any change in the law that has

occurred since its publication. Internews Pakistan encourages the use of this

manual as a reference guide and not as replacement of the actual laws. The

organization will do its best to keep these manuals updated to reflec t any

changes in the law.

Internews Pakistan recognizes the efforts of the Government of Pakistan

in opening up the broadcast media sector for private ownership. In order to

strengthen this endeavor, Internews is implementing a media assistance

program in Pakistan to support the fledgling FM radio sector and other media

outlets by offering legal, technical, editorial, and management training.

Our objective is to ensure that skilled, independent, and financially viable

media outlets exist, especially in the broadcast sector, and are able to provide

the citizens of Pakistan with quality news and entertainment programming.

A strong and vibrant independent media must understand and conform to

the media laws of the country they work in. Therefore Internews Pakistan has

established a media law and advocacy department, which is offering legal

support to Pakistans burgeoning private media sector. In addition, the law

department has a resource center being established to cater to the information

needs of media lawyers, broadcasters and the regulator.


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Chapter 1

What is defamation?Any wrongful act or publication or circulation of a false statement or

representation made orally or in written or visual form which injures the

reputation of a person, tends to lower him in the estimation of others or tends

to reduce him to ridicule, unjust criticism, dislike, contempt or hatred shall be

actionable as defamation.

Defamation Ordinance 2002

The definition above applies to person(s) either defamed or who may

have attempted to defame others. It is all encompassing in the sense that it

generally holds for everyone residing in the country. The media commits a

defamatory act by propagating false statement(s) to a wider audience. The

offence may take any form irrespective of whether the defamatory words have

been published or broadc ast. This means th at even an act or unpub lishe d

statement can prompt a defamatory suit. Only a court can then decide on its

merits.

Defamation can take two forms in legal sense, namely slander and libel.

Slander is a false oral statement or representation that may not have been

published. In case t he same is pub lished bot h the publisher and reporter c an be

accused of libel. By definition, libel a false written statement amounting to

defamation of another person. It also includes documentary or visual

statement or representation made either by ordinary means or expression or by

electronic or other modern means or devices that amounts to defamation. The

libel therefore can be a statement printed, broadcast or telecast. The person

who made the statement may be charged for committing slander.

Explaining defamation

The defamatory words or actions have to be wrongful to be challenged in

the court of law. How to defend against defamation is explained in the

following chapters. But before that journalists should remember the basic

definition of defamation outlined as follows.


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1. Any action

Conversation of a journalist before his colleagues, or any of his act or

actions, which have bearing on the reputation of another person all may

constitute defamation. This may also include certain questions in a press

conference not phrased in a temperate language or any physical act or gesture

that may bring disrepute to another person. (See also No. 9

Publication/Broadcast of the same section)

2. False statement

The condition of being wrongful is a basic one. You have to be factually

as well as legally incorrect to be wrongful. Once the defamation suit is filed

the court of law determines the truthfulness of a statement. At times false

statements published in a section of the press go unnoticed for many reasons.

Some statements cause the party in question to react with different facts and

figures and prove that the statement made or published is a false one. To cater

for such a possibility journalis ts must get th eir information verified through

different sources. For instance, while writing an article he should be sure

about the authenticity of the facts and figures he is producing to substantiate

his view on a subject. This can be done either by acquiring relevan t

documents or cross checking the data through other sources.

Another example illustrates a press conference where a politician levels

allegation against his political rival. Now the allegation may be a false one.

The beat reporters thus have to cross che ck and verify the claims made by the

politicians before they report the event. Mere attribution in such a case will

not work, especially if the event was aired or published for wider

consumption. Doing so would bring responsibility to the broadcaster or

publisher and even the reporter. A reporter therefore should always double

check the authenticity of his report before it goes into printing.

3. False representation

Unpublished conversation can be an example of representation. This may

include a representation by a subordinate before a higher authority against


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another of his superiors. This again is an issue of representing the facts. False

representation may also include a journalist introducing himself with false or

wrong identity, like claiming to be representing someone with intentions to in

fact bring a bad name to that someone through certain actions. Again a false

representation of facts against another person will not be reported, published

or broadcast unless the media organization accepts the partia l responsibility of

propagating the same at a wider scale.

4. Verbal

The person accused of making defamatory statement is described in law

as the author. Author means the originator of the statement, who might have

made the statement verbally or in writing through a press release or a

journalist reporting the same.

There may be times when there is no written or recorded proof of a

defamatory statement made. The defamation suit can still be filed against any

person, including journalist. Journalists norma lly think that it is just what they

publish w hich matters. This is not so because even the words they utter in a

private company carry legal consequences. As stated earlier the defamation

laws even though media focused are basically applicable to all citizens,

particularly those who are fond of leveling unsubstantiated allegations in

public and even in private. So a verbal statement made can also invite

defamatory suit on the basis of a witness who can tell the court that the same

statement had been made by one person against the other. Therefore,

journalists have to be very careful no t just about what they write but also

about what they say in the company of others. This is important not just to

avoid legal prosecution but also to retain a degree of credibility and

impartiality in the eyes of public. The same holds good both for the print and

broadcast media people, the print as well as the broadcast jou rnalists.

5. In WritingThis is the most important type of defamatory communication relating to

anything in written or published form. The published form includes even the

broad cast that has gone on air, a record of which is every radio stati on bound


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to keep. Once again, besides the published newspaper reports written

statements, on paper or now on e -mail too, can also become primary evidence

in a defamation suit.

In newspapers or even the broadcast news the choice of words that

convey the crux of a story as a headline or introduce a story as an intro

becomes crucial and sometimes a determining factor in a defa mation case. For

example to headline a corruption arrest by saying Mr-A has been arrested for

corruption and to say, Mr-A has been arrested for alleged corruption are

two different things. The first proposition, if headlined, can invite a

defamation suit, particularly if later on it is found by a court that Mr-A was

innocent. So the second proposition of saying Mr -A has been arrested for

alleged corruption, is a safe game to play. Similar approach should be

followed in the mai body of the story as well.

In such a case, however, it is not just the reporter, who will be questioned

as a respondent but also the desk editor and even the editor who approves the

headlines. Similar care should be taken even while quoting allegations of, lets

say, one politician against the other and then the judgments of the court in

such corruption cases. The corruption cases before the court even when

decided by a lower court, are considered to be a matter pending before court

or a subjudice matter, wherein the accused sha ll be allowed to exhaust all

forums of appeal up to the supreme court, and the review options, before he

can be reported by the media as some one convicted for corruption. Before

that happens the person will remain an accused for the purpose of reporti ng

however the fact of his being convicted by the lower court and that he has the

right to appeal can be mentioned. Therefore, while reporting on such court

cases due care has to be taken to avoid a defamation suit being filed by the

persons who a re accuse d in corruption cases .

6. VisualVisual medium is the most powerful of all in its impact and influence on

the minds of people and therefore, its potential of doing a greater damage to a

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defamed person if due care is not taken in the choice of images. Thisrelates to


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both television and print where visuals or still photographs form an integral

part of news reports and articles. The caricatures and cartoons of individuals

also say a thousand words, which at times, even a lengthy and most well

written article cannot do.

A camera does not lie, but at times it only shows you a part of the whole

picture, and some times just one side of the whole story. Indeed,

phot ographers cr ave for rare scenes b ut w hen such scen es are p ublished or

telecast out of context, they may become misleading and defamatory. That is

where the words take over from images to tell the people the complete story,

the context, before they go away with a wrong impression about the people

who are subjects of the visuals. It is here that the captio n of a photograph

becomes important, as it must eliminate the possibility of a picture carrying a

misleading impression.

The reporter should also be careful about the type of activities of the

people being filmed. For instance showing a film wherein a pro testor is

carrying abusive slogans against a person or making derogatory signs with

hands for a particular person, all this will be considered defamatory and the

film producer may become a respondent in a suit. Similarly, any sound, funny

or otherwise that will quickly remind people of a person being ridiculed or

insulted and therefore defamed, is also a subject of the defamation

proceedings. These s ounds may be of electronic devices, like distorting the

sound of a person to ridicule him. For instance to tu rn a male sound into a

female one or vice versa, through technical means, and the person who has

been ridiculed considers it derogatory, a suit may lie.

Similarly, the caricatures of important personalities, conveying a political

satire, should not cross the limits of decency and ensure that their physical and

personal disabilities do not become a matter of ridicule in public. This

however does not mean that prominent political personalities cannot be

portrayed in a lighter vein reflecting the existing political controversies. As a

matter of fact the cartoons and caricatures are only effective when their

subjects are prominent public faces and personalities, other than the

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caricatures of ordinary faces representing common people, which we call as

Awaam.

7. Reputation of person

This is the most basic element of a defamation suit. Every citizen has the

right to good name that is known as reputation. In legal sense the reputation of

a person is not just about what the person is but all about how he is looked at

by the public at large. This also gives rise to the questi on ab out the extent a

defamatory statement or action has changed the views of public about thatperson. Therefore, once a defamation suit is filed the court does determine

through evidence the le vel and kind of reputation the plaintiff enjoys and then

the extent of damage done to it.

All this does not however mean that journalist cannot do investigative

reporting about well-reputed people. This does however mean that extra care

should be taken and maximum evidence should be collected before reporting a

story that may damage, though rightfully, the reputation of a person. In fact in

calculating and at times awarding the damages the reputation of person

becomes an important factor. Like more famous a defamed person is greater is

the amount claimed in damages and likely to be decreed.

8. InjuryInjury can be defined as the damage done to the reputation of a person on

the basis of which the court of law ascertains the amount of damages to be

paid by the accused, if found guilty. While even an ordinary citizen can cause

injury to somebodys reputation through private conversation or a speech

before a limited audience, it is always a journalist who has the power to cause

greater damage because he is the one who by publishing it multiplies the

damage by spreading the news to a far greater audience, though as a duty,

through his media organization.

The extent of injury caused is normally considered to be directly

proportional both to the existing level of fame the plaintiff enjoys, and the

number of people that story has the potential of reaching out to. So bigger the


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media organization and bigger the name of celebrity, bigger can be the amount

of damages decreed, once the defamation is established. However, public

figures, like politicians and actors, are also to a great extent considered being

the public property and therefore liable to face public scrutiny in their lives, a

defense argument that will be discussed in the chapter about defenses

available to journalists in defamation cases.

9. Publication/Broadcast

This condition relates to media organizations wherein the statement

alleged to be defamatory may also have to be published in the newspaper or

broadcast before i t ca n be produced as evidence in the court of law.

Under the law the publication means the communication of the words to

at least one person other than the person defamed. This includes a newspaper

or broadcast through the internet or other media that will be explained

subsequently.

The law defines a newspaper as a paper containing:

a. Public news or intelligence

b. Occurrences

c. Remarks or observations

d. Advertisements,The above contents have to be printed for distribution to the public. The

newspapers have to be published periodically. This also includes such other

periodical works as the Federal Government may, by notification in the

official Gazette, declare to be newspaper.

Under the law it is not just the reporter but also the publisher or the editor

who shares the responsibility of having caused defamation of a person, if the

court finds it to have taken place. In case of a radio station, the licensee, the

producers or the editors will share similar responsibility.

The law defines an editor as a person who has the power to allow or stop

the publication or broadcast of a statement, someone having editorial orequivalent responsibility to take the decision to publish or circulate it.

The law mentions author, editor, proprietor or publisher of a newspaper,

the owner of a broadcasting station, an officer, servant or employee of the


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newspaper or broadcasting station as possible respondents in a defamation

suit.

The law defines a publisher as someone who is a commercial publisher

and it is his business to issue material to the public and who issue s material

containing the defamatory statement in the course of that business.

Under the law the act of broadcasting a defamatory statement will be

deemed to have been resorted to, if carried out through the following methods.

a. Through signs

b. Signals

c. Pictures

d. Sounds, including those of electronic devices

The above-mentioned actions if conveyed and received by the public

through following media can become a subject of the defamation suit.

a. A form of wireless radio-electric communication

b. Radiotelegraph

c. Radiotelephone

d. Cables

e. Computer

f. Wires

g. fiber-optic linkages

h. laser beams

A statement once published or broadcast will be considered to have

caused the damage to the person filing the suit. The publication of defamatory

matter is an actionable wrong even without proof of any special damage to the

person defamed. Defamation once proved, the damage shall be presumed to

have been caused.

10. Circulation

If you know that the contents of a newspaper or a broadcast programme

are false and defamatory but you go ahead and distrib ute the same then you

are liable to charged with defamation. In such a situation even a hawker

distributing a newspaper with a false story can be made a respondent in a

defamation suit, but then that hawker can always prove his ignorance on the


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grounds of his being uneducated and unable to read and write. The fact that a

hawker is not supposed to read all the newspapers before distributing them is

also a valid defense.

In fact the circulation of a newspaper is also factor in determination by

the court of the extent of damage done to a defamed person. Basically, the

circulation factor comes into play if a person is privately distributing a hand -

written or printed pamphlet knowing fully well that it contains defamatory

material. Similarly, a printer can also be charged of defamation if he is

printing the same material, with full knowledge of its content.

Necessary parties to defamation suit

Journalist should also know as to who all are the people/players in a

defamation suit so that they ensure that all sides express their views for a just

conclusion to be reached by a court of law. The necessary parties to a

defamation suit are as follows:

1. Plaintiff, who moves the court claiming to have been defamed

2. Defendants, which may include following people

a. The person who makes the disputed statement

b. The reporter who reports the same

c. The editor, who is alleged to have either approved or ignored it

d. The publisher or the licensee of a radio station

Starting of with the plaintiff, a court cannot take suo moto notice of a

defamatory statement unless the person defamed moves the court against it.

Similarly, no person can file a defamation suit on behalf of the person

originally defamed, who can however authorize anyone to do so.

As regards the defe ndants, t hey are severally as well as jointly responsible

for the defamatory statement. For example a politician who makes a speech

filled with allegations against his political rival has a responsibility as well as

the reporter who reports the same without verifying the allegations, and the

editor who approves the story for publication and ultimately the publisher or

the radio licensee who employees them.

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In the absence of the above parties the defamation case is not

maintainable. At times it is up to the plaintiff to decide if he wants to make


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one of or all of the above defendants as party but then the court can summon

anyone which it deems as a necessary party to the suit.

As per the defamation ordinance 2002 the Federal Government was

supposed to i ssue a notif ic ation in the official Gazette laying down rules and

procedures to for the enforcement of this ordinance. This however has not yet

happened and therefore the procedure explained in the following chapters is as

per the existing Civil Procedure Code (CPC) under which the defamation

cases had been heard since the British rule.


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Chapter 2

The procedureIn Pakistan the criminal law for defamation is codified and embodied in

Pakistan Penal Code (PPC) 1860. The Defamation Ordinance 2002 governs

civil liability for defamation to pay damages but the provisions of the

Ordinance do not prejudice any action for criminal libel or slander under any

law for the time being in force including PPC. It is important that the

difference between a criminal case and civil suit founded upon libel is not

merely of form but one of substance. The purpose of this chapter is to explain

the procedure involved in a criminal case of defamation and a defamation suit.

Part I

Defamation as criminal case

Filing of complaint

A person allegedly be defamed by any statement can file a complaint in

the court. The defamation case can be initiated only on private complaints. In

some special case where the alleged defamations is against the President,Prime Minister, a Federal Minister, Minister of State, Governor, Chief

Minister or Provincial Minister, or any public servant employed in connection

with the affairs of the Federation or Province, the Public Prosecutor shall have

power to file complaint.

Jurisdiction of the court

In ordinary cases, Judicial Magistrate 1st class has power to entertain the

complaints of alleged defamation. In special cases where alleged defamations

is against the President, Prime Minister, a Federal Minister, Minister of State,

Governor, Chief Minister or Provincial Minister, or any public servant

employed in connection with the affairs of the Federation or Province, the

court of Sessions has authority to take cognizance of the complaint. The court

of Session shall not take cognizance of the complaints if the complaint is filed


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after six months from the day of commission of alleged defamation. On

receipt of the complaint, the court shall fix the date for recording of

statement/preliminary examination of the complainant.

Preliminary examination of complainant and complaint

The court has to be satisfied that fact(s) listed in complaint, prima facie

constitutes the alleged offence. On the day of hearing the judge examines the

complainant on oath to judge the truthfulness of complaint. The examination

of complaint is not a mere formality, as the result of this examination enables

the magistrate to determine whether he will put the machinery of the criminal

court in motion. It is of the essence that in order to constitute an offence of

defamation it must be communicated to third person because what is intended

by imputation is to arouse the ho stility o f others.

Cognizance of offence

After the preliminary examination, the court will decide whether the

offence reported in the complaint is cognizable. If the court finds that there is

no sufficient ground for proceeding, it shall dismiss the comp laint. The

preliminary examination, therefore, if properly made, will frequently result in

the summary dismissal of a complaint and save an innocent person from the

trouble and annoyance of appearing at the bar of a criminal court. On other

hand, if the court considers that there is sufficient ground to proceed further, it

will proceed further.

Investigation or enquiry

The court will refer the complaint for investigation or enquiry to

concerned police station after taking its cognizance. The police shall submit

its findings in the alleged case to the court on the day fixed by the court. On

the basis of finding of police the court will decide to initiate the proceedings

of the case.


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Issuance of process

At this stage, the first and foremost function in cri minal proceedings is to

produce or cause to appear the person ac cused of d efamation before the court

of law. The court will issue notice to the accused to appear before the court

and defend the case. If the accused fails to appear before the court on the d ay

fixed for case, it can issue warrant of arrest to bring the accused before the

trial court. The defamation is a bailable offence and the accused can apply for

bail as a matter of right to the police officer or the court. The police officer

can release the accused on the furnishing of surety bond in such cases. If the

accused is released on bail, he shall be bound to appear in the court on the

days of hearing. Otherwise, his bail can be cancelled and he may be put

behind t he bars.

Trial of the caseThe trial of criminal case means the proceeding that commences when the

case is called on with the Judge on the bench, accused in the dock, and the

representatives of the prosecution and defence present in the court for hearing

of the case. It has different s tages, which include the framing of charge,

collection of evidence, examination of witnesses and, arguments and

judgment. The accused has a right to be def ended by the pleader at the time

the proceedings are actually going on. Pleader is a lawyer authorised by the

accused to represent him in the case before the court to defend him. If the

accused is in the custody of the police he should have reasonable opportunity

of getting into communication with his legal advisor for the purpose of

preparing his defenc e. Th e acc used shoul d als o be given access to legal adv ice

even while he is in police custody. Prior to the initiation of formal trial, the

accused shall be provided with all relevant documents including copy of the

complaint and statement of complainant and witnesses if any.

Framing of chargeWhen the accused appears or is brought before the court, the Judge

frames a charge in writing against the accused. A charge is a full notice, in a


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examination. Next he is examined by the adverse party; this is called Cross

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clear statement, to the accused of particular of the offence, which the accused

is charged with. A charge in legal language is a precise formulation of the

specific accusation made against a person who is entitled to know its nature at

the earliest stage. In response to the charge, the accused pleads guilty or not

guilty.

The court shall read and explain the charge framed to the accused and he

shall be asked whether he pleads guilty or he has any defence to make. If the

accused pleads guilty and accept the charges, the Judge can decide the case

and convict him on the basis of such guilty pleading. If the accuse pleads not

guilty the court is bound to proceed with the trial.

Collection of evidence and examination of witnesses

If the accused does not make any admission at the time of charge, the

court shall proceed further. The court shall hear the complainant and take all

such evidence as may be produced in support of the prosecution. It is the duty

of the prosecution to call all those witnesses, commonly known as

prosecution witnesses , who prove their connection with the matter related to

prosecution. The court may issue summons to any witness directing him to

attend the court or produce required documents. The court shall record the

statement(s) of witness(es) and readout the same to the accused. The court

shall also provide copies of these statements to the accused. The evidence of

prosec ution will be cl osed with the statement of prosecution to close the

evidence of prosecution.

After the closing of prosecution evidence the court shall ask the accused

that whether he wants to give statement on oath and to produce evidence in his

defence. If the accused answers in affirmation, the court shall hear the accused

and take all such evidence as he produces in his defence. The court is bound to

examine all defence witnesses produced by the accused.

After recording of prosecution and defence evidence, the court shall

proceed further to examine the witnesses. A witness is first examined by the

party who called him; this is called Examination-in-chief or direct


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irregularity in the proceedings of the case or finding, s entence or order of the

Trial court is illegal or improper, he can move next higher court to enquire

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examination. Lastly, he may be re -examined by the party who called him for

clearing up some ambiguity. The evidence of defence will be closed with the

statement of defence to close the evidence of defence.

Examination-in-chiefis the examination of a witness by the party who

calls him. The object of this examination is to get from the witness all the

material facts within his knowledge or such of them as he can testify to

relating to the case.

Cross-examination of a witness by the adverse party i.e.the party

oppose to the one that calls him. The object of cross -examination is to sift the

examination and seek the truthfulness of the case.

Arguments and pronouncement of judgment afterthe examination of

witnesses and collection of the evidence, the court gives an opportunity to the

representatives of both prosecution and accused to argue on behalf of their

respective sides. After hearing the councils of both prosecution and accused,

the court can pronounce the judgment on same day. As result of the

judgement, the accused shall be freed if he was found innocent. But in case

the court found him guilty, he can be either put behind the bars or asked to pay

fine or damages.

Appeal and revision

The word appeal means the right of carrying a particular case from a

subordinate court to superior court with a view to ascertain whether the

judgment is sustainable. Appeal is a creature of statute and only exists where

expressly given. In case of defamation, t he parties can file an appeal with

court of Sessions against the decision of Judicial Magistrate. Moreover, the

parties may appeal to the High court in the case originally tried and decided

by the court of Sessions. If the trial court has imposed fine on a ccused or asks

him to pay damages, the payment of fine or damages shall be stayed till the

final decision of appellate court.

During the proceedings of the case, if accused feels that there is some


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into the matter in order to satisfy itself as to the regularity of any such

proceedings. This move is called revision petition. Thus, even if the

petitioners are not aggrieved persons, the highe r court i.e. court of Sessions i n

case of Judicial Magistrates and High court in case of court of Sessions is

competent to examine the matters in exercise of its revisional power.

Part II

Defamation as civil case

Prior to 2002, the civil liability for defamation to pay damages was notgoverned by any statute law but was determined with reference to the

principle of justice, equity, and good conscience. The promulgation of

Defamation Ordinance 2002 provides statutory provisions to file a defamation

suit in the court of Law. The Ordinance, in addition to Code of Civil

Procedure, also provides some procedure for filing and disposing off the suit.

Following is the details of proceedings of a suit for defamation.

Defamation notice

To invoke the provisions of Defamation Ordinance 2002, the person

allegedly defamed is required to give notice to the person who has committedthat alleged defamation. If for instance Mr. A is allegedly defamed through a

published statement of Mr. B and intends to file a suit f or damages against

him, he is required to give legal notice to Mr. B in this regard. Without duly

serving the notice, Mr. A cannot file suit for damages against Mr. B. The legal

notice should be served upon Mr. B within t wo months after the publication of

the defamatory matter has come to the notice or knowledge of Mr. A. The

notice shall also mention that Mr. A is intending to bring legal action against

Mr. B due to the defamatory matter complaint of.

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Response to the notice

While responding the notice, Mr. B can raise one or more of the defences

discussed in chapter 3. To avoid litigation, he can offer to apologize and

publish it in case of unintentional publication of the statement. He can also


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offer to print a correction in the same manner as the original defamatory

statement was. If Mr. B does not respond the notice in the manner discussed

above, Mr. A can file a suit for damages against Mr. B.

Consulting and hiring of lawyer

Prior to response the notice, journalist (Mr. B in the above case) should

discuss the matter with a competent senior lawyer. The contents of every

notice can vary from case to case and the journalist should, while responding

the notice, specifically respond to only those facts which are mentioned in the

notice. The journalist should keep the copy of the notice for future reference.

This notice may, if required, be produced before the court in this or any other

case. It is important to note that the journalist should not be panic from the

amount of damages claimed through the notice or through the civil suit. It is

for the courts to decide about the amount of damages claimed keeping in view

the circumstance of the case and nature of damage caused to other party.

It is helpful to response the notice through the lawyer. While consulting

or hiring a lawyer for response to defamation notice or appear in defamation

case, the journalist should discuss every minute details of the matter and

should not hide any thing. This will help in establishing his defen ce. In

addition, the fee of lawyer should be clearly determined and agreed upon

between the pa rties.

Suit for defamation and jurisdiction of the court

On failing to get mere response or satisfactory response of the notice

within fourteen days, the person allegedly defamed i.e. Mr. A in above-

mentioned case, can file a suit in a court of Law. An action for defamation

against the person i.e. Mr. B in above mentioned case shall be taken within six

months after the publication of the defamatory matter came to the notice or

knowledge of the person defamed. Only District Judge has jurisdiction to try

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the cases of defamation under the Defamation Ordinance 2002. The court isunder statutory obligation to decide the case within a period of six months.

The suit for defamation starts with the lodging of statement of claim in

the appropriate court. The person lodging the statement is called the Plaintiff


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and statement of the plaintiffs claim is called Plaint. Plaint is a written

memorial tendered to a court in which the plaintiff sets forth the cause of

action and seek judgement and relief from the court.

Prior to the filing the suit, it is necessary to evaluate the suit for the

purpose of court fee. The amoun t of court fee is t o be computed on the b asis

of amount claimed and in manner prescribed in the Court Fee Act. For

example, in Islamabad Capital Territory there is no court fee for filing suit for

damages below Rs25000. If the amount of damages is Rs25000 or above the

amount of court fee will be calculated in the manner prescribed in Court Fee

Act. Maximum court fee in Islamabad can be Rs3000.

Registration of suit

After the suit has been instituted, the court shall cause all particulars of

the suit to be entered in the Register of Civil Suits. After the suit has been

registered the first date will be fixed. It will be the duty of the plaintiffs

counsel to take necessary steps for getting summons issued on the

defendant(s), the person against whom the suit is filed. In case of defamation

the author, editor, proprietor or publisher of a newspaper; the owner of a

broadcasting station; an officer, servant or employee of the newspaper or

broadcast ing stati on; or a ny other perso n can be pa rties to defam ation su it as

defendants. The court shall order the defendant(s) to produce all documents

(in his possession or power) upon which he or they intend to rely in defence.

Appointment of pleader or advocate

Both plaintiff(s) and defendant(s) have right to present their case in the

court of law without hiring any lawyer. If any of the parties wants to be

represented by a lawyer, he can also appoint a lawyer or advocate to

representing him in the court. Every appointment of pleader shall be filed in

court. Such appointment shall remain enforce till the end of proceedings o f the

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case unless the client or pleader die or client decides to change him. A counsel

has implied authority to do whatever he considers best for his client.


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Examination of parties at first hearing:After the defendant has submitted the written statement, the court may, in

some cases, to clear up the pleadings by viva voceexamine the parties. The

examination is known as Better Statements of the Parties. The purpose of

Appearance of parties in court of law

If the defendant or his lawyer fails to attend the court in tentionally or

without lawful excuse on the day fixed for hearing and mentioned in the

summons the court can decide the case forthwith passing the decree against

the defendant. It is important to note that the decree passed at this stage due to

non-appearance of the defendant can be appealed only and cannot be set aside

likeex-partedecree.

Written statement

Written statement is a concise statement in writing filed by the defendant

in answer to averments in the plaint. As a substantial part of the pleadin gs it

constitutes defence of the defendant(s) in the suit. It should be verified on oath

or solemn affirmation. The defendant must produce with the written statement

the documents on which he bases his defence and file a list of such documents

on which he relies.

The defendant shall submit his written statement within the period

prescribed by the court. If the court does not mention the date for filing of

written statement, the defendant can submit it before first hearing. It is

important to n ote that the period allowed for filling the written statement shall

not ordinarily exceed thirty days. Where the defendant fails to present the

written statement within the time fixed, the court can close the defence and

pronounce judgement against him. The decree can be appealed and cann ot b e

set aside.

The defendant must specifically plead all necessary facts and points of

law in his written statement ensuring that plaintiff is not taken by surprise.

The plaintiff must have an opportunity to explain his position on an y new

issue raised. Defendant will not be entitled to raise a plea in the arguments that

he has not taken in the written statement.


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bette r statements is to draw out and ascertain the real points i n controv ersy

with definiteness. It is an examination, by the court only, of any party to

answer material question at the first hearing. There can be no cross

examination by the other side. The court shall also at first hearing ascertain

from each party or his counsel whether the allegations in the pla int or written

statement as are not expressly or by necessary implication admitted or denied

are admitted or denied. If any party or his counsel fails to appear before the

court on the date of hearing without lawful excuse, the court can pronounce

judgement and pass a de cree agai nst the part y. On p assi ng of such decr ee, the

party at default can only file appeal to next higher forum.

Settlement (framing) of issues

After the written statement has been filed and pleading of both parties

have been cleared up by examination of the parties, it is now time to settle the

issue i.e. to determine the material points in controversy between the parties.

Framing of issues is an exercise calculated to aid the administration of justice.

The determination of issues has an important bearing on the trial and decision

of the case because it is the issues and not the pleadings, which indicate the

appropriate evidence to be given.

Issues

Issues arise when a material proposition of fact or law is affirmed by one

party a nd d enied by the other. Each material proposition affirmed by one party

and denied by the other shall form the subject of a distinct issue. Issues are the

questions seeking answers in the judgement.

Issues of two kinds:

Issues of Fact

Issues of Law

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Issues shall be framed by the court at first hearing after reading the plaint

and written statement and after such examination of the parties as may appear

necessary for determination of the real points in controversy. The other

materials for framing issues are:


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produced and filed along with the plaint. Plaintiff is also required to file a list

of documents relied upon by him.

a) Allegations made on oath by parties or by person present on their

behalf, or by their pleaders;

b) Allegations in answer to interrogatories;

c) Contents of documents produced by the parties;

d) Statements made by parties or their representatives when examined by

the court.

At any time before passing decree the court has power to amend the issue

or to frame additional issues, as also to strike out any issues, as may be

necessary for determining the real matters in controversy.

After issues have been settled and the points on which the parties are in

controversy have been clearly determined, the trial stage of the suit is well

within sight.

Onus of proof

On question of law, the initial presumption of correctness is in favour of

both the parties. On a question of fact or mixed question of law and fact, the

onus of proof lies on the party alleging the fact to prove. The onus to prove

whether the alleged defamatory statement has resulted in defaming the

plaintiff lies upon the plaintiff. The plaintiff does not nee d to prov e that the

alleged defamatory statement is false for the law presumes that in his favour.

But the defendant, in defamation cases, will have to prove that the alleged

statement, even though defamatory, is truth.

Production, impounding, return and calling for of documents

All the documents relied upon by the parties i.e.the document to be used

as evidence in support of their cases must be produced at first hearing.

There is a distinction between documents sued upon and documents relied

upon as evidence in support of claim. The former class of documents must be

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Summoning and attendance of witnesses

The parties are required to submit list of witness in the court not later than

seven days after the settlement of issues. The witness can be called either to

give evidence or to produce documents. At any time after the suit, parties may

obtain summons to witnesses on application but the applications for summons

should be made at earliest opportunity.

Where the summons have been duly served and the witness fails to attend

the court intentionally or without lawful excuse the court may issue a warrant

with or without bail for the witnesss arrest at same time or afterward. In

addition the court may also order attachment of his property. Fine can also be

imposed on witness for his avoidance from appearance. These steps can be

taken in case where evidence of the witness is material for the cas e.

Adjournments

No adjournment can be granted unless suffi cient cause is shown. At t he

same time, the court shall not refuse any adjournment when sufficient cause is

shown. It should be remembered that adjournment of a case is entirely

discretionary matter. Court has ample discretion as to the cost occasioned by

an adjournment. Cost means the cost of the day including a reasonable fee

for the pleader of opposition party.

Hearing of the suit

The last and final stage of the case i.e.trial of the suit has now arrived.

The general rule is that the party on whom burden to prove an alleged fact lies

should begin and open his case. After the party opening the case produces his

evidence, the other party states his case and produces his evidence and then

addresses the court on the whole case. The party beginning then replies

generally on the whole case.

Examination of witnessesAfter the plaintiff has opened the case, the evidence will be produced

before the court. The witnesses shall be examined and document s shall be


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exhibited. There are two kinds of examination known as examination-in-chief

and cross -examination.

Examination-in-chiefis the examination of a witness by the party who calls

him. The object of this examination is to get from the witness all the material

facts within his knowledge or such of them as he can testify to relating to the

case.

Cross-examination of a witness by the adverse party i.e.the party oppose to

the one that calls him. The object of cross -examination is to sift the

examination and to seek the truthfulness of the case.

Evidence shall start with the plaintiffs evidence, which includes the

examination-in-chief and cross-examination of plaintiffs witnesses and

exhibition of relevant documents relied upon by the plaintiff. After the

examination of plaintiff evidence, the court shall close the plaintiffs evidence

on the statement of his counsel to this effect. The right of rebuttal i.e. the right

of plaintiff to rebut the evidence of defendant shall remain intact.

The court will then proceed to examine the defence witness. This includes

the examination-in-chief and cross-examination of the defendants witness.

The defence shall also exhibit those documents in original, which are relied

upon by the defendant in his defence. The defen ce evidence shall be closed

with the statement of defence counsel of this effect. If any party fails to

produce evidence in support of his claim, the court may proceed to decide the

case forthwith and pass decree against the party at default.

Arguments

After the parties have adduced all evidence and closed their case a very

important stage comes. Now the lawyers of both the parties have to address

the court. As the plaintiff has begun the case, the defendant argues first and

the plaintiff has the right to reply. If the defendant has adduced no evidence,

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the plaintiff argues first and the reply is with the defendant. The object of the

argument is to piece up the facts and circumstances brought out in the

evidence and to present a complete picture of the cas e.


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Judgement and decree

After the hearing, the judge shall pass a decree and pronounce judgment

in open court either at once or on some future day of which due notice shall be

given to the parties or their counsel. Judge may pronounce judgement written

by his predecessor. It shall be dated and si gned by t he judge after

prono uncem ent and shall not be altered or added to save as p rovid ed in th e

law. The person in whose favour decree is passed is called decree -holder

whereas the person against whom decree is passed is called judgment-

debtor.

Execution of decree

Mere passing of decree does not give rise to any right of decree -holder

and incur any liability upon judgment-debtor. To invoke the liability, the

decree-holder has to file application for execution of decree. The application

shall be submitted to the court, which has passed the decree or to the court to

which the decree is sent for execution. The decree-holder can orally ask for

execution of the decree because, in most of the cases of defamation, decree

involves the payment of money to the court.

In response to the application, the court shall order the judgment debtor to

either publish apology or publish correction of wrong statement (whatever is

mentioned in the decree). If the decree involves the payment of money, the

court shall order the judgment-debtor to pay the decreed amount to the court

on the day fixed. If the judgment-debtor fails to pay the decreed amount on the

day fixed, the court can attach his property and freeze his bank account( s).

The court can also order the sale of attached property to satisfy the decreed

amount. If the judgment-debtor has no property to be attached and no bank

accounts to be frozen, the court shall declare him insolvent. The court can

also sent him to civil prison in case he defaults on payment of decreed

amount. The decree-holder is liable to pay cost of the civil prison.

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It is important to note that if the judgment debtor files appeal against the

decision of Trial court, the execution shall be stayed till the final decision of

appellate court.


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Appeal

The person aggrieved from the decision of the District Judge have a right

to appeal to the High court within thirty days of the passing of such decision.

There is no right of appeal against interlocutory o rders of the court.

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Chapter 3

Defense against defamation chargesThe media acts as a watchdog. It protects the public interest by stating the

truth. Professional journalism thus seeks to establish the facts. Media also has

the tendency to test its limits. Under Pakistani laws , defaming a person or a

party may trigger criminal or civil proceedings against media men. In such a

situation, the accused, in criminal case, or defendant, in civil case, may defeat

the complaint or claim against him by showing that the complainant or

plaintiff hasnt proved the defamation satisfactorily namely, a defamatory

statement about the plaintiff and publication. But assuming that the plaintiff

can establish these elements , the accused or defendant can take other pleas in

his defense. These pleas are then defenses against defamation charges. Let us

look at these defenses in detail.

Freedom of expression

The first and foremost defense against the charges of defamation is the

freedom of speech, as guaranteed in the Constitution. Article 19 of th e

Constitution of Islamic Republic of Pakistan deals with the freedom of press

and expression. The constitutional provision says the freedom of press in

Pakistan is not an absolute and unqualified right. It is in fact subject to various

restrictions, namely, the glory of Islam, the security of Pakistan, friendly

relations with foreign states, public order, decency or morality, or in relation

to contempt of court, defamation or incitement of crime. Though the right to

freedom of expression is very restrictive, the journalist or media can opt for

this defense against defamation charges. For instance, it can be claimed that

whatever is stated in an alleged defamatory statement is an exercise of this

right.

Truth or justificationThe most usual defense against defamation is to prove that the statement

published is true. T ruth is always an absolute defense. The journalist or writer

can prove that whatever he has written or said was established fact. This can


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only apply to statements of fact rather than of opinion. But this also has its

downside. It is because an unsuccessful plea could increase the damages

against the journalist and will add to the harm done to the complainant. The

situation would be severe if the defendant had opted for only this kind of a

defense and failed to prove it. To avoid the situation, the defendant must raise

more than one defense in his plea.

The journalist should also remember that he must be able to deal with

every libelous possibility, such as inference and innuendo. Merely assert ing

that a certain statement is true will not do. If the statement infers something

greater, it is not enough to prove that the statement is literally true. If the

statement infers something greater, it is not enough to prove that the statement

is literally true. Even if the words are true, they may carry an implication,

which may be untrue. For instance, suppose a newspaper published an article

alleging that a trader was selling goods well beyond their sell -by date. Also,

the newspaper successfully proved that the allegation itself was true. But the

court held that the article was defamatory because it implied that the trader

was knowingly selling food unfit for human consumption. The journalist now

must confront all these questions and prove that the conte nts of the statement

in fact were true by producing before the court the relevant documents or

evidence.

Fair comment

This refers to a journalistic opinion published in good faith. It is not

necessarily an assertion of facts. The journalist can always p rove that the

statement is fair and in public interest, if and when the situation arises. In case

the defamatory words are a matter of opinion, the defense of fair comment

may be open to the defendant. The defendant will be required to prove that

any underlying facts are true and that the comment published was one that a

fair-minded person would make; that the comment was the honest expression

of the opinion and was made without malice. Fair comment covers content,

mainly opinion that cannot be true or fals e by its very nature. To be properly

defensible, these comments must be:


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Based on fact

Made in good faith

On a matter of public interest

Published without malice

Citizens are entitled to make "fair comment" on matters of public interest

without fear of defamation claims. A good example of this is a letter to the

editor on a matter of public concern. The author of the remarks may even

presume motives on the part of the person whose actions are being criticized,

provided that the imputation of motives is reasonable under the circumstances.

The rule of thumb is that the fair comment must reflect an honestly held

opinion based on available fact and not motivated by malice. A comment

cannot be fair if it concerns something, which the defendant has invented o r

distorted, and if the alleged facts relied upon as the basis for comment turn out

to be untrue. A plea of fair comment in such a case avails the defendant

nothing, even though they expressed his honest view.

Privilege

The forth de fense is tha t the sta tement complained of was privileged.

Privilege is a defense where the law recognizes that individuals should be

free to speak their minds (and others to report what they say) without fear of

being sued even if they get their facts wrong. It allows people to speak freely

in court proceedings and debates in Parliament, and allows for such

proceedings to be reported, so long as the reports are both fair and accurate.

Such privileges may either be absolute or qualified. You will not be liable for

defamation if you prove that you were entitled to make the statement because

it was subject to absolute or qualified privilege.

i) Absolute privilege

Absolute privilege covers cases in which complete freedom of

communication is regarded as of such paramount importance that action fordefamation cannot be entertained at all. These statements do not invite

defamation charges, regardless of the motive. The journalist is also protected

by a n absolut e privile ge when the statement in questi on is one th at the


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government ordered to be published. It means that if the journalist republishes

the statement, say in a newspaper or on a news -radio broadcast, the journalist

will not be liable for defamation. The statement is absolutely privileged if it is

a publication of matters such as judicial and parliamentary proceedings.

Absolute privilege applies to judges, lawyers and witnesses in legal

proceedings, to MP s for things they say in Parliament, and statements made

by various officials dealing with "affairs of state" in performanc e of their

official duties.

ii) Qualified privilegeQualified privilege holds where the person making the statement has a

duty to do so and there is a corresponding interest in receiving that

information. Any fair and accurate publication of parliamentary or judicial

proceedings, which the public may attend, and statements made to the proper

authorities in order to procure the redress of public grievances shall have the

protection of qualified privilege. The privilege though protects the maker of

an alleged defamatory statement only if the statement was made honestly and

without malice. This means that, unlike absolute privilege, this defense wont

protect you if you acted out of malice or ill will towards the plaintiff. Reports

of court proceedings, statements made at public bodies meetings and in the

course of crime investigation are some examples of where qualified privilege

will arise. In order to take advantage of the defense, the author or publisher

must have no malicious intent.

Privileged communication

The defendant has a defense if he shows that the matter complained of

was privileged communication. Privileged communication includes the

communication between lawyer and client or between persons having legal

relations.

Permitted statement

It is a generally accepted that whatever was conveyed to journalists

during an interview or in an official capacity is permissible to be printed


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have the intimation of the offer and its rejection in writing prior the filing of

suit. The court can also direct the journalist to print the correction.

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Chapter 4

PenaltiesThe journalist or writer will face various penalties as provided in the law

if it appeared to the Court that he has violated the provisions of defamation

laws. Both criminal and civil laws in Pakistan provide different penalties for

defamation. Section 500, 501, and 502 of Pakistan Penal Code (XLV 1860)

spell out criminal penalty for defamation, printing or engraving matter known

to be defamatory and sale of printed or engraved substance containing

defamatory matters. The civil remedies and penalties are provided in Section 9

of Defamation Ordinance (LVI OF 2OO2). In addition to civil remedies

Defamation Ordinance also provide criminal penalty i.e. imprisonment.

Criminal penalties

If the journalist has been tried as a result of complain t and found t o be in

violation of provisions of criminal law the Court can impose different

penalties on the person guilty of the offence.

Imprisonment and fine

The Court can punish the person guilty of defamation with simple

imprisonment for a term, which may extend to two years. Court can also

impose fine on the guilty person. The law does not define any limit of the fine

and it is up to Court to prescribe it. The Court can impose both imprisonment

and fine simultaneously. If the Court imposes fine on th e journalist and he

defaults on its payment, the Court may punish him with simple imprisonment

that may extend to six months. This imprisonment is called imprisonment in

default.

Civil remedies/Punishments

Civil remedies and punishments are provided in the DefamationOrdinance 2002. If the matter is referred to as civil case, the Court can impose

any, all, or a combination of the following penalties.


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Apology

If the journalist is found to have violated the provisions of defamation law

and nature of damage caused to the plaintiff is not of very high degree, the

Court can order the journalist to issue an apology. The Court, in its judgement,

can determine the manner for issuance of the apology.

Publication of truth

If the statement resulting in defamation of plaintiff has proved to be false,

the Court shall order the journalist to publish the correction of the same;

meaning publish a retraction of the story in the same manner as the

defamatory statement.

Monetary fine

The Court can ask the defendant to p ay reasonable compensatory

damages as general damages with a minimum of Rs50,000 (Rupees fifty

thousand) to the plaintiff if:

i. The defamatory statement is proved be factually wrong;

ii. It has caused the damage of serious nature to the defendant; and

iii. The defendant could not take benefit of the defences mentioned in

chapter 4.

The damages will be paid to the plaintiff to redress his grievance. While

imposing this penalty the court shall consider various factors including the

personality of the plaintiff, level o f damage caused , nature of t he statement

and previous conduct of the defendant.

Imprisonment

The Court can also impose penalty of imprisonment if the defamatory

statement has caused damage of very serious nature to the plaintiff. The

journalist may be imprisoned for u p to three months. I n addition, the court

may order any other special damages as it deems fit. The provision ofDefamation Ordinance dealing with special damages leaves it for the Court

to impose any kind of penalty on the journalist.


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Chapter 5

Contempt of court lawThe concept of contempt of court comes from the pre -partition times and

was duly given statutory form by the legislative assemblies and the

governments in Pakistan. The 1973 Constitution of Pakistan also made it an

offence. The most comprehensive statute on the subject came in the shape of

1976 Act, which now stands repealed as per the latest Contempt of Court

Ordinance 2003.

Understanding this law is a must for a journalist. Contempt of court can

be termed as defamation of the courts. The new law on contempt gives judges

the right to file a defamation suit in cases where they cannot move contempt

charges.

The government has introduced the law on contempt through

promulgation of a presidential ordinance in December 2003. This ordinance

took effect from Nov 9, 2003, before the first ordinance was to expire after the

four months mandatory period.

The law on contempt of court has been introduced to maintain the sanctity

of the judicial system wherein the disputes are supposed t o be resolved in

accordance with the constitution and the law. The contempt laws apply

equally to all citizens. The media though is more vulnerable to it than the

ordinary citizens.

What is contempt of court?

Whoever disobeys or disregards any order, di rection or process of a

court, which he is legally bound to obey; or commits a willful breach of a

valid undertaking given to a court; or does anything which is intended to or

tends to bring the authority of a court or the administration of law into

disrespect or disrepute, or to interfere with or obstruct or interrupt or prejudicethe process of law or the due course of any judicial proceedings, or to lower

the authority of a court or scandalize a judge in relation to his office, or to

disturb the order or decorum of a court is said to commit "contempt of court".


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Contempt of Court Ordinance2003

As per the above definition the Contempt of Court offence may hold in

the following circumstances:

Disobeying or disregarding a court order

Disobeying or disregarding direction or process of a court

Willful breach of undertaking

Causing disrespect or disrepute

Interfering or prejudicing judicial process

Scandalizing a judge

Disturbing decorum of court

The above circumstances may invoke a variety of charges as per the latest

contempt law. These are:

Civil contempt.

Criminal contempt

Judicial contempt.

Civil contempt

Civil contempt means intentionally disobeying any kind of court orders or

directions. A court order normally comes in the form of a judgment. If thelosing party does not obey the courts order the winning group can then

inform the court that its orders are not being obeyed or implemented. In turn

the court can initiate the contempt of court proceedings. Even before the final

judgment, the court can issue an interim order or direction to the government

or any of the parties involved. This interim order or direction has to be

implemented and enforced in letter and spirit.

The court can order journalists whether to publish reports carrying

allegations against a person, or about a case pending a final verdict. This

includes any portion of the court proceedings. The court may direct a

newspaper or any publication in writing or verbally to abstain from publishingor carrying certain reports. Such a d irection is known as gag order. While

doing so the court presumes that in case a news report gets published, it will

either harm the legitimate interests of the party or prejudice the process of law


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or a matter pending before the court. Journalists are required under this law to

show respect to the court less they are subject to the civil contempt

proceedings.

Similarly, a court can also order a journalist to disclose his or her source

of information in relation to a particular report. International precede nts s how

that the journalists have often refused to obey such court orders even if they

had to spend a few months behind bars on contempt of court charges. In some

cases, the organizations, did step forward to provide some material, such as

the video of a particular riot or a violent demonstration. The situation in

Pakistan to this effect has thus far been characterized by the policy of the

state-run television or radio stations. The new private media may adopt a

different policy.

The superior courts can issue a writ (orders issued through exercise of

jurisdiction) against any person, publishe r or the government. These orders or

directions have to be implemented under the law. Similarly journalists too can

invoke courts contempt jurisdiction to protect t heir rights. For example if an

order benefiting a journalist or a newspaper is not being implemented the

court can then be requested to invoke its jurisdiction under the contempt laws

against the person or organization which is defying the orders.

A journalist must make a truthful statement or a promise that he is sure of

keeping. Giving a false statement or failure to fulfill promises will also invite

civil contempt of court charges. The court process is also to be respected like a

court order. The court process means any action being taken by the court

officials as part of the hearing, like sending of summons. Refusal to receive

court commons or refusal to appear before the court after receiving them

without cogent reason can also trigger contempt of court proceedings.

Action against civil contempt of court

The court can initiate proceeding for civil contempt on its own. However,

as stated earlier, any party aggrie ved by non -implementation of a court order

can inform the court through an application, the contempt of court petition,

that its orders are being avoided.


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Criminal contempt:

Criminal contempt involves physical action that insults or humiliates a

judge in his face. It includes acts that may obstruct or hinder the

administration of justice, like physically resisting the implementation of a

court order. Even an act not intended to obstruct the administration of justice

may also invoke criminal contempt. Both journalists and ordinary citizens are

vulnerable to this kind of contempt. As per the law the criminal contempt will

hold if a person or a journalist:

1. Attempts to influence a witness, or proposed witness either by

intimidation or improper inducement, not to give evidence, or not to

tell the truth in any legal proceeding;

2. Offers an improper inducement or attempts to intimidate a judge, in

order to secure a favorable verdict in any legal proceedings;

3. Commits any other act with intent to divert the course of justice.

Influencing a witness means a journalist must be careful in

approaching witnesses in a case being reported. For example in a defamation

case, in which the journalist himself is a defendant, the media men should not

try to influence the plaintiffs witnesses in private. Similarly, even while

reporting a case as a journalist, he should not ask a witness, or a likely witness

of the case, to give a false statement for publication to influence the court

proceedings. This also means that a journalist must not offer any monetary

benefits to a witness or th reaten to damag e his reputa tion, if he did or did not

give a particular statement before the court or any court official as part of any

legal proceedings.

Similarly judges should not be approached in private about a case.

Approaching a judge in private about a case pending before h im may also

amount to criminal contempt of court. Approaching a judge means contacting

him in person or on telephone and offering him favors in cash or kind in return

for a particular outcome of a case before him. This may amount to


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intimidating a judge. A journalist may also intimidate a judge through his

stories about court proceedings of a case or the judge himself.

Committing any other act to divert the course of justice is also liable to

the criminal contempt charges. This may include creating commotion inside

the courtroom or committing acts, which a court considers to be obstructing

the process of hearing. This may also include any violent gesture towards the

judge of that court. Giving misleading information either in person or through

newspaper to influence the investigating process in a criminal case may also

invite criminal contempt of court charges.

Action against criminal contempt

Every superior court can award punishment in case contempt is

committed in relation to it. High courts also have the power to punish a

criminal contempt committed in relation to any court subordinate to it.

Similarly, subordinate courts are given the power to hear a case of criminal

contempt relating to the courts below them. In such a situation a high court

cannot proceed.

There are many ways a high court or Supreme Court can react to the

instance of a criminal contempt in a subordinate court. As opposed to the civil

contempt where the same is brought to the notice of a judge only by a

complainant, a criminal contempt can be dealt by a superior court as follows:

1. A court taking action on its own after coming across evidence or

information through press. In legal terms this court action is called

suo moto.. For example information about a fistfight or insulting a

judge of a lo wer court once conveyed to the superior court by any

means can invite suo moto action. For a journalist it means that his

story might invite a suo moto action by a judge. This is especially so

if a story influences or has the potential to influence t he court

proceedings in terms of the definition of criminal contempt. The

journalist too can then be subjected to the criminal contempt of court

charges. For example publishing statement of a witness, which is

contrary to what he had stated before the c ourt.


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2. There are other sources of information on the basis of which a

superior court may take action. For example any person connected to

the proceedings in which the alleged contempt has been committed

can also bring it to the notice of the court.

3. A law officer of a federal governmentAttorney General and his

deputiesor of the provincial governmentAdvocate Generals and

their deputiescan also request a superior court to take action

against the person accused of the criminal contempt of court.

Judicial contempt of courtThe contempt of court law defines judicial contempt as scandalizing a

court, which includes personalized criticism of a judge while holding of

office.

No one is allowed to criticize a judge with reference to his personal life

and c onduct. Personalized criticism of a specific judge means imputing

improper motives to a judge while criticizing his judgment in a case. Like

alleging that the judge gained personal benefits, financial or others, through

his judgment. In case a true statement is made in good faith and in temperate

language through a complaint and which is not cognizable, the same has to be

proved before the court of law when the contempt case is initiated.

Under the law the only situation where allegations can be leveled against

a judge is when a formal complaint is being made before the competent

authorities in good faith and in temperate language.

The competent authorities in this case have been categorized as under:

1. Provincial government

2. Chief Justice of a High Court

3. Supreme Court

4. Supreme Judicial Council

5. Federal Government for examination before hearing by Supreme

Judicial CouncilThe law says that in case the complainant fails to prove his allegations

before the authorities mentioned above, a judge, wh o has been complained

against, has the right to file defamation suit against the complainant.


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Therefore, nothing of the above deprives a judge of the right to file a suit for

defamation.

Action against judicial contempt

Like the criminal contempt a judicial contempt is also within the purview

of superior courts. A superior court may take action in case of a judicial

contempt on its own or on information laid before it by a person.

how to aviod defamation

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