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Legal Eye

June 30, 2018

Landscape 2018


June 30, 2018

The good thing about our landscape prior to Election 2018 is the lack of ambiguity. The gods seem to be screaming out loud: whatever else happens, they would like to have the PML-N for lunch.

Our confusing Article 62/63 jurisprudence producing disqualification decisions lacking consistency, a hyperactive NAB using powers such that will produce political consequences, the migration of electables to the PTI, the rise of hate-mongering religio-political parties, the attack on a free media and Article 19 rights, and the intimidation of social media dissidents are painting such a perception.

Let’s start with Article 19 and freedom of speech, information and media (or the lack thereof). Here is the paradox. In a government of the people, by the people and for the people, the rationale for Articles 62/63 and disclosure requirements built into Election Act 2017 and accentuated by the Supreme Court’s order (that requires candidates to furnish detailed affidavits) is to provide citizens with all the relevant information about candidates to enable them to make informed choices. Can the scheme work if the media that dissects and relays information is itself under curbs?

We have taken viewpoint censorship to a dangerous extreme. Unaccountable censorship shields the very definition of national interest from the continuous searching scrutiny it deserves and renders unaccountable those who conceive such notions. How can a consensus around where the national interest lies and how it is to be pursued evolve without debate, critique and dissent?

Should one be perceived as anti-state for highlighting the imbalance between our state institutions or for invoking the constitution for defining their roles and against the political outcomes being shaped beyond politics? Must one be viewed as anti-judiciary for analysing the merits of decisions rendered or critiquing the consistency or desirability of evolving jurisprudence or seeking a clear distinction between legal accountability (falling in the domain of courts) and political accountability (falling in the court of public opinion)?

Can it be anything other than myopia that projects the need to respect national institutions as a justification to curb critical voices? Why are we critical of the all-or-nothing sense of loyalty when demanded by politicos, but not when preached to shield unelected office-holders from scrutiny? Can respect for institutions be enforced? Isn’t respect a normative feeling that will emerge in the hearts of a majority of citizens in view of the conduct and actions of institutions (and those who control them) notwithstanding trenchant criticism by dissidents?

And if such criticism is likely to resonate with the majority and lower the stature of an institution in the eyes of right-thinking people, shouldn’t that be a reason for the institution and those running it to introspect instead of backing the need for censorship? Our education system is focused on rote learning instead of creating thinking minds. Our religious, ethical and family values also seem to demand conformity. The outcome is grown men unable to speak their minds in the face of authority. Together, all of this nurtures hypocrisy and false reverence.

The notion of enforcing respect and deterring criticism through carrot-and-stick policies is doing Pakistan no good. Dissuading scrutiny and seeking blind and unquestioning allegiance to those in authority so long as they are in office on any basis nurtures a lack of accountability and protects the misuse of authority. We could certainly use some irreverence in our midst. And that is where a marketplace of ideas (which includes undesirable or disagreeable ideas) enabled by a free media is handy.

So ensnared is our media today that it is loath even to admit it. First there is self-censorship. There are subjects an op-ed writer can’t approach except with insinuations, hoping that discerning readers will read between the lines. A piece that addresses any of the unspeakable issues is then likely to be toned down. On a good day, and after consideration of consequences from all angles, it might see the light of day. If it does, there is no saying what reaction it might elicit. It could attract reprisals for the media organisation or the writer/journo or both.

Dawn’s circulation has been disrupted, the newspaper has claimed in a powerful editorial protesting censorship. The sustainability of media organisations doesn’t depend on their ability to sell content to consumers but on its readership/viewership that translates into advertisement revenue and makes the organisation commercially sustainable. Disrupt the circulation of a newspaper or the distribution of a channel for a few weeks and its ad revenue will come crumbling down (who advertises on a medium with no outreach?) together with its ability to pay its bills. 

In the good old days, journos were jailed or beaten to intimidate them and to muzzle critical ideas. While some of that is still happening (for good measure, especially in the case of social media activists), the ability of faceless actors to switch on and off, at will and without any constraint or backlash, the commercial viability of media organisations is a much more potent control tool. The choice then is obvious: you can take the patient off the ventilator and bury the corpse; or you can accept the diktat to be able to stay in the game and fight another day.

It is quite amazing that in this day and age one still has to spell out the obvious: the effective and meaningful exercise of Article 17 rights to freedom of association is contingent on upholding Article 19 and 19A rights to freedom of speech, media and information. And the right to information and its disclosure required by law becomes largely redundant without a free media analysing it freely and from all perspectives to relay it to the public. Today, speech is subject to prior restraint. And this has miraculously been accomplished with a court order.

Here we are debating whether the cost of the house of former PM Shahid Khaqan Abbasi was correctly estimated (even though the forms say he owns the house) or whether he stated the number of shares he owns in Airblue (even though he states that he owns shares and their value). In view of the disclosures, a learned judge has determined that Abbasi isn’t honest and must be banished from politics forever. But if you critique the decision, its reasoning or consequences, you could be hauled in for contempt of court.

The remarkable decisions after the scrutiny of candidates’ documents that we are witnessing are a natural outcome of the jurisprudence on the matter. The SC in the disqualification decisions it has recently rendered hasn’t laid a clear objective test to guide the exercise of judicial authority in disqualification matters. But it has held that a disqualification can be slapped without trial or recording evidence. Thus, with detailed disclosure forms, there is a great scope for opponents to invite judges to make subjective declarations regarding the integrity of candidates.

Then there is NAB. The timing and manner of the exercise of its authority as well as the content of statements and photos released by it makes the effect of its actions so obvious that it leaves little room for any debate or doubt regarding intent. Do we, as purveyors of rule of law, think that constitutionalism will resonate with the people in the face of the perception that the wheels of the law are brought into motion to achieve preordained outcomes and consequences? Will this dispel or entrench the sceptical view that the law is a tool of power and not one that produces justice?

The message that Landscape 2018 is conveying to the voter is unambiguous. The state’s advice on who to vote for in 2018 is that the PML-N is nothing but trouble. But here is a scary thought. What if the voter isn’t seeking the state’s advice or doesn’t heed it?

The writer is a lawyer based in Islamabad.

Email: [email protected]

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