A tale of (un)fair treatment

Freedom of expression has been the most curtailed and ignored right in Pakistan’s constitutional history

A tale of (un)fair treatment

Freedom of speech is internationally recognised as one of the most important human rights, elemental to the proper functioning of a healthy democracy and to the exercise of many other rights.” This is stated in Modernising Media Law in Pakistan – a comprehensive media legal review report produced a few years ago by the Institute for Research, Advocacy and Development (IRADA).

For the right to freedom of expression in the current age, the Universal Declaration of Human Rights (UDHR), signed by Pakistan in 1948, and the International Covenant on Civil and Political Rights (ICCPR), signed and ratified by Pakistan in 2010, are foundational documents. In a number of cases, the constitutional courts in Pakistan have recognised these international human rights law instruments as a source of authority.

However, the right to freedom of expression, as enshrined in international human rights law, is not absolute. According to Article 19(3) of the ICCPR, exercise of this right carries special duties and responsibilities. Therefore, it may be subject to certain restrictions; but these shall only be such as are provided by law and are necessary. The international human rights law stipulates that these restrictions on the right to freedom of expression must meet a strict three-part test. First, the restriction must be – concrete, clear and unambigous – provided by law. Second, the restriction must pursue one of the legitimate aims listed in Article 19(3). Third, the restriction must be necessary to secure that [legitimate] aim. Any administrative, abstract, vague and ambigous restriction, which is beyond that exhaustive list of legitimate aims and does not meet the criteria of necessity, is unjustified and unfair.

In Pakistan, freedom of expression as a constitutional principle was first incorporated in the Objectives Resolution of 1949, which is now part of the Constitution of Pakistan as its preamble. The preamble states: “Wherein shall be guaranteed fundamental rights, including...freedom of thought, expression...subject to law and public morality...” Similarly, Article 19 guarantees the right to freedom of expression. However, this right is “subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, [commission of] or incitement to an offence.”

Freedom of expression has been the most battered, curtailed and ignored right in Pakistan’s constitutional history. A plain reading of Article 19 of the constitution shows that this article gives right to freedom of expression in its first part and takes it away in its second part. It does so through attaching subjective and abstract notions like “glory of Islam,” “integrity of Pakistan,” “friendly relations with foreign states,” “decency or morality,” and “contempt of court” as “reasonable restrictions.” These abstract notions become problematic and unfair when the state or vested interests justify the Pakistan Penal Code’s (PPC) provisions defining ‘offences relating to religion’ as reasonable restriction in the “interest of glory of Islam” or provisions defining offences against “integrity or defence of Pakistan” that include colonial legacy-like Section 124A (sedition), as a reasonable restriction to protect “integrity or defence of Pakistan.”

Moreover, according to Rule 3 of the Removal and Blocking of Unlawful Online Content Rules 2021, commonly known as social media rules, “security of Pakistan” is defined in Article 260 of the constitution. It says, “Security of Pakistan includes the safety, welfare, stability and integrity of Pakistan and of each part of Pakistan, but shall not include public safety.” Similarly, the highly controversial Prevention of Electronic Crimes Act (PECA) and, in particular, its Section 9 (glorification of an offence), Section 10 (cyber terrorism), Section 11 (hate speech), Section 20 (offences against dignity of a natural persona) and Section 37 (unlawful online content) are being unfairly defended as “reasonable [constitutional] restrictions.”

This unfair treatment of freedom of expression is also evident beyond the above enactments and legal instruments. For example, during the past few years, cases against politicians, human rights activists and journalists have been initiated due to their expression and speech. In 2020-21, 26 journalists were booked under the PECA law for their online free expression. Politicians across the aisle were booked under the sedition and PECA law as a result of their expression against the deep state. Contempt of court proceedings were initiated against politicians for their criticism of judiciary and judges. Only in 2018, the Supreme Court of Pakistan punished three members of the parliament under the contempt of court law and disqualified them from holding any public office for five years. Earlier, in May 2015, the chairman of the Press Council of Pakistan (PCP) directed the All Pakistan Newspapers Society (APNS), “that while reporting on Yemen crisis and Saudi Arabia, provision of Article 19 of the Constitution of the Islamic Republic of Pakistan may be kept in view by our print media. Acute care should be taken to avoid negative comments to ensure that our bilateral friendly relations with Arab countries are not adversely affected.”

Despite the unfairness of constitutional provisions and their subjective application, journalists and public interest media platforms have played a crucial role in the protection and promotion of freedom of expression in Pakistan. Many of these individuals and media platforms have pushed the limits of the right to freedom of expression and did not compromise on their principles. They have faced numerous challenges, including censorship, harassment and violence but remained a powerful voice for democracy and human rights in the country.

Corporate media have been more willing to bow before power or money. Many of them have remained dutiful to even the ‘abstract, subjective and vague’ constitutional restrictions on freedom of expression. Some have stopped producing popular publications. Several have closed their bureau offices claiming a financial crunch. Many have removed anchors from TV programmes and blocked airing of certain news and current affairs content under pressure.

The writer is an Islamabad based lawyer. He tweets @aftabalam_77

A tale of (un)fair treatment