In pre-partition India, when the Viceroy’s Council passed the infamous Vernacular Press Act, 1878, one of the British members of the council said: “No government such as ours in India can afford to allow the minds of an ignorant and credulous oriental population to be gradually poisoned and embittered by persistent calumny of the government”.
Free speech has always been the cause of conflict between two classes in the history of human evolution. On the one hand, the class that considers freedom of speech as their fundamental right (subjects), and on the other hand, the class that deems this right to be a poison for society (power-wielding rulers).
Since time immemorial, speaking truth to power is deemed dangerous. Judging from surviving law codes, ancient civilizations protected the authority of their rulers from the speech of their subjects. According to Hebrew law, the punishment for cursing the ‘king’ was stoning. Egyptians advised against questioning “a greater man than yourself”. The Babylon King was allowed to cut off the ears of his slave merely if the slave said he was not the master. In Athens, Socrates was killed by the government as punishment for expressing his conscience.
Modern human history followed a somewhat similar pattern. American slavery, British imperialism and the apartheid in South Africa were aided by appalling censorship dogmas to ensure the weaker sections remained deprived of raising their voice, resulting in absolute subjugation. In the Subcontinent, the sedition law was employed by British imperialists to muzzle any speech questioning the legitimacy of the imperialist rule as they felt ‘voices of dissent’ would ultimately lead to a call for independence.
Nevertheless, under a democratic setup, the rights of the people are incomparable to the rights of subjects under a totalitarian, monarchical or imperial regime. Driven by self-determination, the populace signs a social contract to create a body politic that will preserve their basic rights including the right to free speech.
We live in a constitutional democracy; the social contract of the people of Pakistan – the constitution of Pakistan, 1973 – in its preamble clearly lays down a clarion call by the people of Pakistan regarding their dedication to the preservation of democracy which can only be attained by raising voices against oppression and tyranny. The constitution establishes the outline of government and confers fundamental rights upon people. Some of these rights, such as freedom of speech guaranteed under Article 19, are crucial fortifications against executive overreach.
In our constitutional parlance, free speech under Article 19 can be regulated in certain circumstances, though the same can be done through legislation that must pass the test of reasonability. Nevertheless, the ground reality is entirely different from our written constitutional scheme. Some powerful quarters are exercising de-facto authority to regulate free speech and control the flow of information. These quarters informally, with complete impunity, regulate our right to free speech while operating outside the ambit of the law. Their unconstitutional interference in the political and judicial process of the country is not a novel phenomenon – though this has intensified in the last few years.
On electronic media, such quarters have forcefully and capriciously imposed informal restraints on speech and expression. Under these circumstances, despite being a democracy (on paper), we stand exactly with the notion of Oceania’s Ministry of Truth depicted in George Orwell’s classic dystopian novel, ‘1984’. As Rawls says, “to suppress free political speech… always implies at least a partial suspension of democracy”.
In a constitutional democracy, the only institution that can effectively keep a check on executive overreach is the judiciary. It is envisaged as the ultimate guardian of fundamental rights, in particular when the superior judiciary exercises its power of judicial review under Article 199 of the constitution. Thomas Emerson in his article 'Toward a General Theory of the First Amendment’, whilst discussing the role of the judicial institutions in upholding the freedom of speech writes: “Judicial institutions in the end must respond to the needs, claims and expectations, of the social order in which they operate”.
Almost all legal scholars agree that courts should be heavily involved in reviewing and removing impediments to free speech and fulfill the desire to create a tolerant and open society. Under this theory, the judicial function is to help create an open ‘market’ for ideas which, in turn, requires nothing less than for courts to be ceaselessly cautious against attempts to curb the expression of opinion that the state detests.
Our superior judiciary’s authority and prestige to enforce fundamental rights cannot be taken too lightly. However, how one can expect the judiciary to effectively respond and fulfill its constitutional role of free speech if the judges themselves are victims of interference? Recently, almost all the high courts of Pakistan have complained of interference by personnel of security agencies.
Pakistan is a democracy; the views of the public cannot be labelled as dangerous or credulous. The government cannot decide what doctrines or opinions people should hear. Whimsical tendencies by state institutions will never bring order. The friction between those who want to speak and those who want to silence will keep on mounting and the eventual causality will be democracy.
Speech is not poison, repression breeds hate, and hate jeopardizes stable government. Historians have taught us that the intellectual advances made by our civilization would not have been impossible without freedom of speech. Opportunities must exist to freely discuss objections and solutions. History is replete with examples wherein it has been established that truth is resilient; it needs no licensing to make it triumphant.
John Stuart Mill, in his essay on ‘Liberty’, rightly pointed out the need for allowing even erroneous opinions to be expressed on the ground that the correct ones become more firmly established by what may be called the 'dialectical' process of a struggle with wrong ones which exposes errors.
The writer is a Lahore-based advocate of the high court.