Mind control gone foul?

Legal eye

Here is one version of how private media emerged in Pakistan under Musharraf. After Kargil, private TV channels in India (which started around 1995) spoke with one voice claiming that Pakistan was a terrorist state with a finger on the nuclear button. To respond all Pakistan had was PTV. So the state rationally concluded that state-owned media couldn’t effectively counter Indian propaganda.

To be credible, we needed our own privately owned TV channels countering, in times of hostility, the propaganda of Indian channels. The model works. Amidst a crisis, we see anchors blaring, frothing and fighting it out on TV screens in both countries.

In most countries there exists a conformist consensus on matters of national security without much dissent and India is no different. In Pakistan, while there is general consensus around India trying to hurt Pakistan when it can, there are more voices critical of national security policies in comparison to India.

Unlike India, Pakistan’s military is the most powerful state institution. And it isn’t just responsible for external security but now is also the frontline internal security agency. Consequently its actions and policies affect lives and rights of citizens more. It is in the context of civil-military imbalance and its effects on democracy, rule of law and fundamental rights that those who seek the emergence of a welfare state critique policies that project Pakistan to be a national security state.

The emergence of private electronic media also provided some space to critical voices. Controlling print media was a lot easier than controlling diversely owned electronic media. The emergence of social media that critiques and informs narratives being shaped on electronic media has made state control even more challenging. And yet within the state’s mindset there exists the unshaken belief that in today’s age of fourth and fifth generation warfare, the ability to shape and control narratives is a national security imperative.

But the tool to shape narratives is coercion not persuasion. The focus is on dissuading dissent and encouraging self-censorship. We may never find out what the crime was of the now infamous returned bloggers. But it was a warning shot for all social media activists to practise self-censorship. The strategy to deal with electronic media has also been evolving. The state seems to have concluded that traditional control measures – advertising revenue, disruption through cable operators, secret funds, threats of physical harm etc – aren’t enough. Two flawed conclusions seem to have been drawn in the wake of the Hamid Mir affair. One, that the state can acquire greater control over shaping narratives and punishing critical voices if it introduces a few of its own agents within the Augean stables dressed up as free media outlets attacking rivals. And two, use populist rhetoric laced with patriotism and bigotry as the attack tool to threaten and silence critics and condemn them to live with the risk of violence by state and vigilantes alike.

There are at least three problems with this approach. One, by introducing its own dog in the fight, the state weakens its ability to influence rival players it castigates as treacherous. When President Trump leashes out at CNN or New York Times, does it enhance the credibility of Fox or Breitbart News or Trump in the eyes of rational folks? Two, by cultivating an alliance between jingoism dressed as nationalism and religious hate, the state cedes space to vigilantes – space that is hard to recapture, as we have seen in our fight against terror.

And three, a state that treats policy criticism by its own citizens as a security threat reflects its own sense of acute insecurity. Do thinking minds running the state really believe that our bigoted brigades (DCPs etc) and their menagerie of haters (now on mainstream media too) ‘defending’ the state and its policies or labelling critics as traitors or blasphemers or heretics make the state look good? Can anything be worse than allowing irresponsible use of the charge of blasphemy (in a 96 percent Muslim country) to threaten and silence critics?

Why should the state be so thin-skinned that critical debate over whether allotment of state land to generals is good policy or not threatens it? Isn’t it a matter of public importance whether limited state resources are to be committed to building bombs, shiny infrastructure projects, perks of public servants or the health and education of citizens? If we have a national consensus over the need to extinguish terror and terror infrastructure in Pakistan, why shouldn’t there be a debate that dissects the strength of competing ideas on how best to do so?

In 1644, Milton sought “the liberty to know, to utter and to argue freely according to conscience, above all liberties”. The logic and concept of ‘marketplace of ideas’ is especially sound in this age of technology and social media: in a marketplace with limited barriers to entry, let all ideas be expressed and debated and let superior ideas drown out inferior ones. But the powerful seldom bear criticism willingly. Consequently the history of free speech has been more a history of censorship of speech.

The right to free speech is not without restraints. Mill defined the scope of restraint using the ‘harm principle’: “the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.”      As we don’t exist in isolation, our fundamental rights compete with those of others. The freedom to speak freely is a fundamental right. But it can’t be used such that it breaches the fundamental right of another to dignity, privacy, life or liberty.

John Finch explained it best when he said, “your freedom to swing your fist ends just where my nose begins.” Hence the consensus that some speech is so harmful or offensive that it is to be prohibited. In the US courts employ the “clear and present danger” and “imminent lawless action” tests – that speech that creates a clear and present danger for others (like falsely yelling fire in a crowded theatre) or incite violence doesn’t enjoy protection.

A subset of the prohibited speech category is ‘hate speech’. During the hearing of Hamid Mir vs Federation, upon prodding of our Supreme Court, the government and PBA agreed upon the Electronic Media Code of Conduct, 2015. This was formally promulgated as a subsidiary legislative instrument under the Pemra Act. Clause 23 defines hate speech as “any expression that may incite violence, hatred or discrimination on the basis of religion, ethnicity, color, race, gender, origin, caste, mental or physical disability.”

Sub-clauses (2) and (3) of Clause 23 state that, “the licensee shall not relay allegations that fall within the spectrum of hate speech, including calling someone anti-Pakistan, traitor or anti-Islam”, and “where hate speech is resorted to by any guest, the channel and its representative must stop the participant and remind him and the audience that no one has the authority to declare any other citizen as a Kafir or enemy of Pakistan, Islam or any other religion.” This is the law of our country and makes abundant sense. Why is it being violated with impunity?

What the right to free speech doesn’t grant is entitlement to make false allegations, impute vile motives and incite hatred against someone. We fail to protect the dignity and reputation of citizens because our defamation law is ineffectual. It is this law that must be brought to life and given a bite to inject responsibility and accountability into the media, penalise libel and slander while protecting speech merely critical of power elites and bad policies.

Instead of employing contempt laws or manufactured threats to national security to censor speech judges and generals find unpleasant, or slapping labels of treason and blasphemy to incite hatred against dissenters, can we please use the defamation law to strike the right balance between protected and prohibited speech as is done around the civilised world?

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu