Such are the times

Some basic truths must be stated. Such are the times. The rights of speech and association reside at the heart of democracy. These rights seek to enable conclaves of individual and collective freedom of conscience and action against the controlling instincts within the power structure.

Associations, in particular political parties, amplify the voices of individuals who have chosen to combine for a common purpose. Critical to the act of association is the choice of who is to speak for the members of the association. Speech merges into association.

Without freedom of speech and association the constitution becomes a cover-up for authoritarian oppression. Removal of a person’s voice and face from the public domain paves the way for the elimination of the person. Stalin understood this well, with his regime having promoted to a grisly art form the air-brushing from photographs of faces of silenced opponents.

In the recent past, and the continuing present, the rights to speak and associate have faced challenges in Pakistan that interrogate and deny the very core of these rights. Is the constitution of Pakistan any less committed to these rights than constitutional structures elsewhere? The interrogatories may be summarized and placed in our own historic as well as global comparative context.

The constitution of Pakistan declares freedom of expression to be a fundamental right. It also allows speech to be restricted through legislation based on grounds specified in Article 19. How are the restraints to be imposed? Should those seeking to speak first obtain clearance from a government or corporate authority? Or is speech found prohibited by the law to be subjected to penalty, damages or a prison sentence under the contempt, defamation and sedition statutes after it has been made? The distinction between prior restraint and subsequent sanction is the critical distinction between state coercion and individual freedom with concomitant responsibility.

Over the last year and a half, prior restraint has become the new norm in Pakistan. Television channels have found themselves compelled to decide when to press the mute button and block the transmission of live broadcasts. What has been muted are primarily political speeches questioning dominant narratives. This has become possible because of the fifteen second gap between a person speaking and the live transmission of the spoken word.

Such decisions, made with no appeal possible during the fifteen second lag, today determine who becomes voiceless and who may be heard across the airwaves. Prohibiting coverage of political activities or utterances of politicians deemed unworthy on account of pending trials or convictions leave nothing to chance. Political satire has also been proscribed.

Few, if any, examples of prior restraint of political speech exist in constitutional democracies around the world. Further questions have been raised. Is an under-trial person deprived of his or her right to speak and be heard? What about a convicted person? Or a person declared ineligible for election to parliament? Can such a person hold an office in a political party and speak for others in the party?

The principles that must inform answers to these questions are firmly established in the global democratic landscape: Speech may not be restricted on account of the point of view or identity of the speaker. No serious objection can be raised about the right to speak (subject to the laws of contempt, defamation and sedition applicable to all) of a convict, particularly one who has been set free by an appellate court during the hearing of the appeal against conviction.

The apartheid era South African Supreme Court was asked to rule in Minister of Justice v Hofmeyer (1993) on the rights of imprisoned convicts. With freedom for the people on the horizon, the court affirmed long-established global principles: “(we) negate the parsimonious and misconceived notion that upon his admission to jail a prisoner is stripped, as it were, of all his personal rights; ... the extent and content of a prisoner’s rights are to be determined by reference not only to the relevant legislation but also by reference to his inviolable common law rights.”

Rights such as freedom of speech and association, declared fundamental by a written constitution, stand at a far higher echelon of sanctity than common law rights. In Pell v Procunier (1974) the US Supreme Court rejected the notion that a person convicted of a crime loses his First Amendment right to freedom of speech. This was re-affirmed in a long line of judgments that followed.

The US constitution sees the right to associate and represent as emanating out of the right to speak. He who has the right to speak also has the right to associate and represent. In Tashjian v Republican Party (1986) and Secretary of State of California v San Francisco County Democratic Central Committee (1989), the US Supreme Court affirmed that neither the legislature nor the courts could have any reason to interfere with who the members of a political party choose as their standard bearers, this choice being a form of expression protected by the constitution.

Does the constitution of Pakistan grant rights that are more truncated than what even an apartheid court was willing to allow? Is the right to associate and speak that is recognized by the US constitution beyond what we, the people of Pakistan, are granted by our constitution?

In recent years, a theory of constitutional exceptionalism has arisen in Pakistan. It is said that because we – or our conditions – are different, the freedoms others take for granted may not be accorded to Pakistanis and their political representatives. This makes little sense.

The most rousing judicial pronouncement by any court on basic freedoms remains the full court judgment delivered by the Supreme Court of Pakistan in 1988 in Benazir Bhutto v President of Pakistan. Zia had wanted to control the terms of association of political parties and had mandated clearance by the Election Commission as a requirement for participation in the general election. The intent was clear: to throw Benazir Bhutto and her party out of the fray. Mohtarma challenged the oppressor. Zia’s attorney general argued for reading the piety-laden restrictions of Articles 62 and 63 as restraints to the freedom to associate as a political party, guaranteed by Article 17(2) of the constitution.

The Supreme Court rejected this line of reasoning and with it the scheme to oust Benazir Bhutto and her party from the political process by finding her speeches ‘objectionable.’

This judgment remains a beacon for dark times. It is time to brush aside the dust, some of it judicial, that our basic rights have gathered since the Mohtarma’s historic day in court. Such are the times.

The writer is an advocate of the Supreme Court of Pakistan.

Email: salmanr2002@hotmail.com

Twitter: @salmanAraja