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Tuesday January 18, 2022

The order of power

December 02, 2021

The writer is founding partner of Mazari-Hazir Advocates & Legal Consultants.

Although we are told that all human beings are born free and equal in dignity and rights, in reality, both dignity and rights are distorted by power – more specifically, who holds power and who doesn’t.

Are a judge and a litigant appearing in his/her court equal in terms of the power they hold? Is a soldier with a gun equal to an unarmed civilian in terms of the control they exert over one another? Does the prime minister have the same power as a journalist who questions him? The answer to all these questions is an emphatic ‘no’ and that is precisely why international human rights protections evolved – to maintain a check against the inevitable power imbalance between state/ruler and citizen/subjects.

It is because the state has the ability to deprive you of your property with the threat or use of force that your right to private property is safeguarded in the constitution. It is because of this monopoly over the threat or use of force that your rights to life, liberty, security and expression have been explicitly protected in law. The idea that underpins all this is not just that you are entitled to these protections in general but that the state can and does commit excesses, which citizens must be protected from.

In Pakistan, particularly since the 2018 general elections, the language of human rights has been co-opted by the regime to distort both discourse and legitimate critique. In fact, the current government has appropriated the language of human rights to consolidate its power by perpetuating this notion that the state and citizens are equal – in terms of their rights, responsibilities and powers. This appropriation has resulted in the improper – and often absurd – functioning of state/government officials. It is, therefore, pertinent to reiterate a basic principle that has now been distorted so often, it seems to have been forgotten. That principle is that the state owes obligations to its citizens and that it must act in the interest of its citizens. Not the other way round.

A recent illustration of this intentional distortion can be seen in the Removal and Blocking of Unlawful Online Content (Procedure, Oversight and Safeguards) Rules 2021, notified by the Ministry of Information Technology on October 12, 2021 (if one is not mistaken, for the fourth time). In most civilised parts of the world, prior to framing and enacting such rules, meaningful consultations are conducted with citizens, keeping in view the importance of their fundamental human rights and how such instruments impact the same. Unfortunately, in Pakistan, the government carried out consultations after being so directed by the Islamabad High Court after the Pakistan Federal Union of Journalists challenged the third draft of the Rules through a writ petition.

Rule 4(5) of the Social Media Rules reflects this appropriation by the government. It provides that the “identity of the complainant is kept confidential” subject to certain criteria listed therein. When read together with Rule 4(1)(ii), the mala fide of the government, in seeking to subvert fair trial guarantees contained in Article 10A of the constitution, becomes evident. Rule 4(1)(ii) stipulates that the government and intelligence agencies can also be complainants under the Rules. This is also in violation of Article 19A of the constitution, which safeguards the right of access to information as the provisions, read together, shroud government/intelligence complaints in secrecy.

Under this government’s tenure, journalists and other citizens have been repeatedly summoned by the FIA over ‘hate speech’ and ‘criminal defamation’ of ‘state institutions’ and certain public office holders. Complaints have been filed by persons who have no locus standi. The FIA, without even verifying the contents of the complaint, issues notices to journalists to threaten and intimidate them. Proxy complainants are readily available and all of this is has been made possible under the draconian Prevention of Electronic Crimes Act (PECA) 2016, gifted to us by the PML-N. Under the recently notified Social Media Rules, these rights violations are expected to not only persist but in fact worsen.

The arguments employed by government functionaries, in response to legitimate criticism, are a combination of distortion and brazen falsehoods. Not only is the language of human rights co-opted but government machinery also spins into action to portray an image of Pakistan as a torchbearer of freedom. For example, when the RSF listed Prime Minister Imran Khan as a “press freedom predator”, the Ministry of Information issued a statement asserting that the RSF should “avoid such irresponsible journalism”. Any news critical of the government is deemed ‘fake news’ and campaigns are launched against journalists to deter them from reporting independently and without fear. Just in September this year, the prime minister himself stated that his government is not opposed to a free media but has a problem with “fake news and propaganda”.

Loyalty of citizens to the state is questioned and this distorted discourse on human rights prevails. Further, the government seems to think that limitations can be placed on the freedom of expression of citizens to safeguard the reputation and ‘rights’ of the prime minister and the federal cabinet. Worse still, they believe that the right to expression can be curtailed to protect certain entities which they have elevated in status to ‘institutions’.

Despite having become a State Party to the International Covenant on Civil and Political Rights (ICCPR) over a decade ago, state/government functionaries in Pakistan still haven’t read what is expected from them vis-a-vis implementation of the Covenant. With respect to freedom of opinion and expression, the Human Rights Committee has unequivocally stated, in General Comment No 34, that “in circumstances of public debate concerning public figures in the political domain and public institutions, the value placed by the Covenant on uninhibited expression is particularly high”.

In other words, “the mere fact that forms of expression are considered to be insulting to a public figure is not sufficient to justify the imposition of penalties”. Further, the Committee has observed that “all public figures, including those exercising the highest political authority such as heads of state and government are legitimately subject to criticism and political opposition”. The Committee has even found that “States parties should not prohibit criticism of institutions, such as the army or the administration”. The reasons these protections exist is because the value of freedom of expression in a democracy and for accountability and transparency is essential.

There are very basic principles involved in cases where a citizen speaks against excesses by the state. The citizen and state do not hold the same power or monopoly over force. The reality is that the law on sedition is a colonial remnant, which should be tossed into the dustbin of history where it belongs. Instead, it is used by the state against those who have already been brutalised by wars waged by the state. All of this is cloaked under some absurd conception of ‘protecting’ the state, grounding the same in the language of human rights.

Since the 2018 general elections, we have been confronted with this absurdity – the false equivalences being constantly drawn between the rights of those who hold power and those who don’t. The record needs to be set straight and the state needs to be kept in check rather than the citizenry. That is the correct order of things.

Email: imaanmazarihazir@ gmail.com

Twitter: @ImaanZHazir

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