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Thursday December 02, 2021

Mercurial meanderings

June 23, 2021

Freedom of expression is the most discussed, most fought about, yet the least understood of all individual rights. Difference of opinion is inherent in this freedom – which is why legislating it has never been easy.

Curtailing the right to differ automatically means censoring the freedom of thought and expression. This is especially so in an environment that is not self-sustaining but depends on divisions to nourish itself, like the highly charged, nationalistic conditions we live in today.

The first thing to come under fire with the rise of nationalism is the freedom of expression. Strictly speaking, freedom of expression and nationalism are not mutually exclusive, but they do tend to occupy each other’s space, leading to heated debates and at times even to violence. This debate is as old as it gets, and is not an easy one to settle, especially in situations that are wholly dependent on the principle of contradiction: things that are opposite to each other in nature cannot be true at the same time or cannot exist in the same space at the same time.

In the context of this article, the ‘principle of contradiction’ is born when nationalism is created from assumed anti-nationalism. Elements of society need to be excluded for this to happen. Therein lies the problem. Debate to find middle ground cannot even start when the very existence of nationalism depends on the divide that separates a group from society. To maintain this existential divide, it becomes urgent to keep the other side from voicing opinions and facts that have the potential to ultimately close that chasm – through debate, through logic, through well-balanced counter arguments.

It’s like the time several years ago when the city council of Bonn, Germany, started debating on cutting back on the number of policemen in the city because there wasn’t enough crime. So, the police had to go around asking residents if they had any problems, because no crime, no police. Likewise, no adversary, perceived or otherwise, no nationalism. That’s why the right of speech under the umbrella of freedom of expression is the first to be restricted in a system that is predicated on ‘us versus them’. In Pakistan – a country with conditioned education, selective understanding of reality and limited ability to empathize – the only way to make popular inroads is to control the narrative by attacking the right to speak.

If this is what freedom of expression were all about, it would probably not even be such an intense issue. But this right is complex. It’s not simply about stating your mind. It is also about articulating views and presenting them in contexts that bear the weight of history and wisdom. The very soul of justice and democracy predicate on the freedom of expression. Free flow of information, emotions and ideas cannot be curtailed if the judges and the electorate are to do their job properly. Democracy is about self-government by the people and for that to work the building block has to be an informed electorate.

Free speech advocates like philosopher and reformer Alexander Meiklejohn have argued that democracy will not be true to its essential ideal if those in power are able to manipulate the electorate by withholding information and stifling criticism, even if the motive to manipulate opinion stems from the intention to benefit society, because the power to choose manipulation itself negates the very ideals of democracy.

A major architect of civil liberties law Thomas Emerson expanded on this relationship by advocating that freedom of speech is not just the basis of a healthy democracy but, by providing a balance between stability and change, it is actually essential to the survival of democracy. In his words, this freedom acts as a “safety valve” to let off steam when people might otherwise be bent on change; a way to maintain the delicate balance between division and consensus.

One of the reasons for the fall of authoritarian communism states is that, while those societies valued education, the expression of education in the form of argument or difference of opinion was not allowed. There was no safety valve to let off steam and it was too late before the authorities could realize the extent of pent-up anger.

Absolute freedom of expression on the other end of the spectrum, too, is a utopian desire. Almost all legal systems set limits on the freedom of speech, especially when it conflicts with other rights and protections such as in cases of libel, slander, obscenity and copyrights etc. While most violations are easy to prove and penalize, those that stem from ‘intention’ are tricky to prove beyond a shadow of doubt. Lest they are abused and misused, even religions have avoided legislating punishment based on ‘intent’ alone. The various nuances, meanings and hues of expression make it very difficult to legislate without encouraging censorship. So, unless governments can quantify ‘intent’ and establish tangible constitutional parameters, merely using vague laws to penalize ‘intent’ would lead to nothing short of chaos. Blasphemy laws are a clear case in point.

In today’s complex landscape of communication and expression, clarity is paramount both in speech and legislation. Governments with overwhelming desire to legislate speech and expression should remember that freedom of speech is no longer the right to say whatever you like about whatever you like, whenever you like it. According to Amnesty International, freedom of speech today is the right to seek, receive and impart information and ideas of all kinds, by any means, including those that may be deeply offensive to those in power. True, it comes with responsibilities and can be legitimately restricted, but only if the concerned laws are clear on what constitutes a violation.

Existing defamation laws in the country are to a great extent quite sufficient to deal with most matters of libel and slander. Defamation is legally not a crime but a tort (a civil wrongdoing). It allows the aggrieved party to sue for damages. That is why most populist governments like to tinker with laws to make defamation a criminal wrongdoing, thus allowing the use of state machinery in matters of tort. This is mostly done to control narrative.

But why? What is it about this freedom that scares the powerful? Some would say it symbolizes the innate human desire for complete freedom. I think this freedom carries with it the duality of human instinct: to control yet to be free. With the formal abolition of physical slavery, the entire focus shifted to controlling thoughts, perceptions and ideas as a means of controlling outcomes – fifth generation if you must.

However, freedom of expression is a stubborn old thing. All shades of the powerful, from all times of history, have tried to tame it, harness it, control it or strangle it. But it’s always bounced back, sometimes with a vengeance. Our ability to express and articulate elevates us – and as long as the human spirit lives, freedom of expression will continue to fight back for its rightful place in human society. The Romans knew this well. That is why Mercury is not only god of boundaries, financial gains and trickery but also of communication, messages and eloquence.

The writer is an executive producer, Geo News and editor of Jang – The Economist annual edition.

Twitter: @munazza193