READ PRINT VERSION HERE


by  JAVERIA YOUNES

“If liberty means anything at all, it means the right to tell people what they do not want to hear.” — George Orwell

FREEDOM OF SPEECH is the sine qua non of a democratic society. It is the single most important political right of citizens. Without free speech, no political action is possible and therefore no resistance to injustice or oppression is possible. The freely expressed opinions of citizens help to restrain oppressive rule. It is futile to expect political freedom or, consequently, economic freedom in a society where free speech is strangled or curbed.

The Constitution of Pakistan guarantees freedom of press under Article 19, subject to “reasonable restrictions”. However, the freedom of the press is curtailed by the ambiguous wording of the provision, which states that:

There shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, [commission of] or incitement to an offence.”

A cursory glance through the provisions of the article makes it evidently clear that freedom of expression is not being guaranteed, rather it is being denied to the citizens of Pakistan. The number and extent of qualifications and exceptions embedded in the text of the provision makes it impossible for anyone to exercise any semblance of free speech. These “claw back” provisions are broad and generic.

Article 19 falls short of meeting international standards for the protection of the right to freedom of expression. The use of words like “reasonable restrictions” are themselves curtailing freedom, while the international standards and the rest of the world advocate “necessary” or “legitimate aim”, as well as “clear and present threat.” The muzzling of freedom of expression thus ensures that Pakistani democracy, which, in essence, is an autocracy, perpetuates its autocratic regime without being questioned by societally conscious press.

The case laws in terms of Article 19 have never been expanded on by the higher judiciary, as occurs with US and UK jurisdiction. Judges have fallen short of clearly defining and expanding categories of untouchable speech or alternatively, categorically and clearly delimiting certain kinds of speech and the circumstances under which they can be legitimately proscribed by the State. Instead, the courts have essentially adopted a case-by-case approach in Pakistan.

There have been several important judgments that underline the importance of interpreting the Constitution. For example, in Benazir Bhutto vs Federation of Pakistan the Supreme Court held that, “Constitutional interpretation should not just be ceremonious observance of the rules and usages of interpretation but instead inspired by, inter alia, Fundamental Rights, in order to achieve the goals of democracy, tolerance, equality and social justice. The prescribed approach while interpreting Fundamental Rights is one that is dynamic, progressive and liberal, keeping in view the ideals of the people, and socio-economic and politico cultural values, so as to extend the benefit of the same to the maximum possible.” In another case the court observed that the role of the courts is to expand the scope of such a provision and not to extenuate the same.

Though the courts understand the significance of free speech for the survival and sustenance of democracy, in an overwhelming number of cases they have held that such rights are not absolute, that reasonable restrictions based on reasonable grounds can be imposed, and that reasonable classifications can be created for differential treatment.

In Jameel Ahmad Malik vs. Pakistan Ordinance Factories Board, Wah Cantt, the court held that, “In a democratic set-up, freedom of speech/expression and freedom of press are the essential requirements of democracy and without them; the concept of democracy cannot survive. From perusal of Article 19, it is, however, absolutely clear that above right is not absolute but reasonable restrictions on reasonable grounds can always be imposed. Reasonable classification is always permissible and law permits so.”

While dwelling on what constitutes a “reasonable restriction” the courts have taken a cautionary approach and interpreted the term in a very limited manner. For example in Ghulam Sarwar Awan vs. Govt of Sind  the court stated:

“The phrase ‘reasonable restriction’ connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond that [which] is required in the interest of the public. The word ‘reasonable’ implies intelligent care and deliberation, that is, the choice of a course which reason dictates.”

Barring a new notable exceptions, the courts in Pakistan have played a fiddle to atrocious state policies, especially when it comes to the right to freedom of expression for minorities. Ahmedis are often denied the right to free speech under draconian Ordinance XX of 1984 which proscribes the publication of their literature in any form. Recently, on 19 December, 2015 a Supreme Court of Pakistan bench denied bail to the publisher of Al-Fazl, a 102-year-old Ahmadiyya publication, who is behind bars for three years on blasphemy and terrorism charges. 

The courts so far have taken no suo motu notice of the National Action Plan established in January 2015 that vows to curb free speech under the guise of “national security”. As per point number 11 and 14 of the rudderless plan, “Print and electronic media will not be allowed to give any space to terrorists.” And, “Social media and the Internet will not be allowed to be used by terrorists to spread propaganda and hate speech, though exact process for that will be finalised”. State policies are increasingly shifting towards strangling free media and free speech, while the courts as the guardians of the fundamental rights of the people remain a silent spectator to the atrocities committed in the name of “national security”.

Catherine Anne Fraser, Chief Justice of Alberta, Canada once said, “We have independence for one reason – to protect the rights of our citizen”. However, in case of Pakistan the nominal independence of the judiciary has done little to protect the freedom of citizens.  

On September 9, 2014 the Supreme Court issued contempt of court notices to anchorperson Mubashir Luqman and CEO of the ARY TV channel for allegedly maligning the judges of the apex court in a programme broadcast on May 29, 2014. The court ordered that Luqman had gone too far, with his behaviour provoking hatred towards the judiciary. It also ordered strict actions to be taken against any channels that allowed the anchor to broadcast.

In many countries across the world, the judiciary has restricted the ability of government bodies, including judicial courts, elected bodies, State-owned corporations and even political parties to bring an action against journalists for defamation. This is in recognition of the vital importance of open disparagement of government and public authorities for a democracy, including of courts. Sadly the legal jurisprudence on the right to freedom of speech in Pakistan has yet to reach this level of maturity.

On 28 October, 2015 a 19 year old blogger and political worker of Pakistan Tehreek Insaaf (PTI) was arrested by the Federal Investigation Agency for allegedly criticising a sitting judge of a Peshawar High Court. Qazi Jalal was arrested for his tweets against the judiciary, under the 2002 Pakistan Electronic Transaction Ordinance, and is said to be still in FIA’s custody. Media reports have stated that action against the teenager Qazi Jalal was undertaken after an unknown complaint was filed, and he was arrested on charges of creating negative propaganda against the judiciary through his twitter account.

Blasphemy is another area where the scale of justice tips against the accused. In August 2000, Justice Nazir Akhtar of the Lahore High Court stated in a public lecture that, “we shall slit every tongue that is guilty of insolence against the Holy Prophet”. People accused of violating Pakistan’s draconian “blasphemy laws” face proceedings that are glaringly flawed. In the report, “On Trial: the Implementation of Pakistan’s Blasphemy Laws” published by The International Commission of Jurists, it was stated that judges of the lower judiciary demonstrate bias and prejudice against defendants during the course of blasphemy proceedings as well as in judgments, with details of widespread trial violations.

The judiciary in Pakistan has taken a cost-benefit approach to striking a balance between preservation of freedom of speech and protecting public interest within the restrictive categories of Article 19. Courts historically have limited the freedom of speech to press and have curtailed it. For instance, in Syed Masroor Ahsan v. Ardeshir Cowasjee, the court observed that freedom of press was not “absolute, unlimited and unfettered” and that its “protective cover” could not be used for wrongdoings”.

Likewise, in Sheikh Muhammad Rashid vs. Majid Nizami, Editor-In-Chief, The Nation and Nawa-E-Waqat the court held:

“The Article 19 provides the freedom of press subject to any reasonable restrictions which may be imposed by law in the public interest and glory of Islam, therefore, the press is not free to publish anything they desired. The press is bound to take full care and caution before publishing any material in press and to keep themselves within the bounds and ambit of the provisions of the article”.

French writer, philosopher and historian Voltaire rightly stated, “I do not agree with what you have to say but I will defend to death your right to say it”. The judiciary, state and legislature in Pakistan are not yet ready to allow citizens their fundamental right to speak their mind. Tolerance of criticism is the echelon of a civilised and democratic society but cannot be expected from a society whose moral fabric is torn by religious fundamentalists with no respect for difference of opinion.