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Legal Eye

April 8, 2018

Missing channels


April 8, 2018

Twitter had the pithiest commentary on Geo’s blackout. After missing persons we now have missing channels, it said. The comparison is apt. The government has condemned the blackout. Pemra says it is taking regulatory action. The apex court has asked who is behind the blackout. Geo’s management is pleading for mercy for if it were to divine who is behind the clampdown, and why, it could be in even more trouble. That’s how missing person cases roll too, while exposing the gaping hole between de jure and de facto power in Pakistan.

Centuries ago, thought leaders concluded that every person must have freedom of conscience. Thus came to be recognised a fundamental right to hold beliefs of one’s own choosing without fear of persecution. Our power elites didn’t invent the concept of proscribing undesirable ideas. The history of press regulation is a history of attempts to control ideas in the name of morals or national interest or public order. Notwithstanding the right to free speech, critical or non-conforming ideas have always gotten under the skin of the powerful.

In the civilised world, an individual’s right to freedom of conscience and the collective right to free speech and information are so well entrenched that, while the powerful loath critical ideas, they can’t do much about them. We see the current US president rant against one media outfit after another. Why? Because no one likes criticism, and some egos are more vulnerable than others, and some have a lesser ability to pretend that they are okay with criticism. But some systems allow the powerful to do more than just rebuke ideas not of their liking.

Ours is one such system. We have specified in our constitution sacred cows that we can be critical of at our own peril. Our freedom of speech is conditional. The restriction on citizens not to critique or hold to account unelected institutions that exercise state power on their behalf makes no logical sense if one accepts the basis of the right to free speech. The rationale for free speech is at least threefold.

One, human beings have agency and can distinguish between truth and falsehood. Two, in a marketplace of ideas where all sorts of desirable and undesirable ideas are available, truth will eventually drive out falsity. And three, the standards for enforcing fundamental rights to equality, dignity and liberty evolve overtime. As dissenters challenge existing ideas, social consciousness grows, the condition of human existence and rights improves and society progresses. Thus, it is in society’s collective interest that the right to dissent be upheld, even though critical ideas might seem unpalatable and unworthy.

We haven’t yet evolved to a level where we can tolerate ideas we dislike; and so we have outlawed certain forms of speech. Superimposed on formal restrictions are unwritten restraints. The first is self-censorship. If you’re writing something critical of holy cows, your piece could get stuck with your editor. If it does get published, it could attract the ire of the powers that be (and result in the occasional beatings we hear about). Your integrity, patriotism and sense of honour will be unforgettably impugned by social media trolls. All this can have a chilling effect.

If you are still inclined to be a dissident, there still are dos and don’ts. Unlike in the case of politicos you are not supposed to impute ill motives to the holier elite. You must build into your argument the possibility of inadvertent wrongdoing and erring lone wolfs. You must not refer to institutionally imbibed mindsets. You must use temperate language. If you don’t follow the protocol, the piece will be withheld or edited. That is the second stage of censorship, which then reinforces the first: self-censorship.

Despite the façade of independence, the electronic media is equally crippled. You can criticise the elected government to your heart’s content. But that is the only part of the state that is fair game. Guests who take their right to free speech too literally can be blacklisted. Panels are to be designed to give a sense of balance while promoting desired narratives. Shows on ‘less patriotic’ channels that carry the prospect of stepping on holy toes can be required to be pre-recorded so that undesirable sound bites can be edited out.

Of course, the same means can and are employed by media outlets to promote their individuals agendas and censor speech they dislike. But in that case you can turn to a different outlet to get another viewpoint. However, when it comes to the unelected part of the state, the rules are enforced across the board. The outlets that don’t follow the line are ‘disciplined’ (how that works is a whole other story). The Jang/Geo group isn’t being disciplined because it is irreverent or lacks balance. But reverence and balance have not convinced those who believe that all that stands between Pakistan and its deliverance is NS. They think Jang/Geo has a pro-Nawaz tilt and has been sympathetic to him since his disqualification. To them, this is highly irresponsible. Here we can digress for a moment and take into account a general fact. Media outlets take partisan positions the world over. Newspapers and channels endorse candidates before elections, explaining to their audience their reasons for doing so. Op-ed writers also promote one viewpoint against another.

While the media can take political positions, some state institutions are prohibited by our constitution from doing so. For example, Article 244 requires each member of the armed forces to swear “that I will bear true faith and allegiance to Pakistan and uphold the Constitution of the Islamic Republic of Pakistan which embodies the will of the people, that I will not engage myself in any political activities whatsoever and that I will honestly and faithfully serve Pakistan… as required by and under the law.”

A rational approach would assume that, if NS is evil incarnate, folks would be able to figure that out. Even if some misguidedly (or purposefully) promote him, the more reasonable and weighty arguments will prevail in the marketplace of ideas. But in the world of de facto, the game is played differently. Here, guardians of public interest don’t wish minds of unsuspecting folk to be bedevilled by bad ideas such as those sympathetic to a politico who is bad for the country. What if such ideas infect ordinary minds and lead them to make imprudent choices?

Once you begin to justify the de facto in the name of necessity, it begins to devour the legitimacy of all that is de jure. And that is how the controlled version of democracy (that promises perfect instant results) begins to replace the messier bookish one that we seem to be running out of patience for. Ours is the land of controlled democracy, wherein you wish to prevent undesirable electoral outcomes. Down this path there is no room for a marketplace that includes undesirable ideas and relies on human common sense to weed them out. Here there is no room for human agency or freedom to make choices.

So Geo’s blackout isn’t about outlawing criticism of institutions. It could be the manifestation of another undeclared rule: no one can be allowed to beguile, directly or indirectly, gullible citizens into making bad electoral choices, just as no one must be allowed to market junk food to kids.

Or could it be one freak coincidence that cable operators simultaneously decided in the national interest that viewers must be shielded from Geo’s ‘propaganda’ prior to the imminent conviction of NS? Or could Geo’s blackout be another conspiracy by the N-government to make the only channel supportive of NS disappear in order to frame our righteous state? This is also the age of controlled uncertainty.

The writer is a lawyer based in Islamabad.

Email: [email protected]

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