Should a public figure be able to use the criminal justice system to silence critical voices?
Last year, a famous English satirical magazine, Private Eye, published an amusing piece about our prime minister and his current spouse. As with most satire, it wasn’t flattering. It concluded that “one of the world’s nuclear powers is led by a man who gets his advice from a character taken out of Game of Thrones”. You can disagree with, even disapprove of, such statements. Should a public figure be able to use the criminal justice system to silence critical voices?
The latest amendments to PECA seek to protect the reputations of institutions and public figures. They will have a chilling impact on freedom of expression. In essence, the amendments do five things. First, the scope of Section 20 of the law which originally protected only individuals now extends to companies and other entities, including entities “established by the Government”. Second, a complaint can be filed by any citizen where it relates to a public figure or a holder of public office. Third, the proviso in the law which prevented it from applying to material aired on television and to PEMRA licensees has been removed. Content on TV will now be subject to this law. Fourth, the relevant criminal offence has been declared to be cognizable and non-bailable. This means that arrests can be undertaken by law enforcement agencies without a warrant and there is no presumption in favour of bail. Finally, a timeline of six months has been prescribed for concluding trials.
The amendments were introduced through a presidential ordinance. There was no debate in the parliament. Under the constitution, an ordinance stands repealed if either the Senate or the National Assembly passes a resolution disapproving it. Since this avenue is available to parliamentarians, the Islamabad High Court rejected petitions filed by political parties challenging the constitutionality of the ordinance. The court observed that the parliament was the proper forum for them to resolve disputes rather than involving judicial forums. In similar petitions filed by journalists, the same court has issued notice to the Federation which will have to justify the new law on the touchstone of the fundamental rights guaranteed by the constitution.
When the prime minister addressed the nation, he rationalised the amendments on the ground that complaints were regularly received by him concerning obscenity and child pornography on social media. The amendments have nothing to do with either. These subjects are covered in Section 21 of the PECA which has not been changed at all.
Every despot seeking to restrict free expression always says that genuine journalists have nothing to fear.
The amendments make changes to Section 20 of the PECA, and expand its scope and impact. The section in its original form has been challenged in various High Courts as have the amendments. The original Section 20 criminalises the act of transmitting information which you know is false which harms the reputation or privacy of a person. One of the elements of this offence is that the transmitter must “know” that the information is false. Since this is an element of the offence, the prosecution must prove such knowledge or malice beyond reasonable doubt. In practice, however, where complaints are filed action is taken on the basis that the accused has been unable to establish the truth of the statement. The PECA, including the original Section 20, was introduced by the previous government, led by Pakistan Muslim League Nawaz (PMLN). It has become a tool to silence speech, and for ulterior motives.
Pakistan has both civil and criminal laws apart from the PECA which deal with defamation. The civil defamation law in Pakistan requires cases to be decided within 90 days. The prime minister complained in his address about civil defamation cases that he has filed which have lingered. There are defamation cases against him which have also lingered. Rather than introduce new draconian laws, it would have been better to explore why the current law is not being implemented as envisaged.
The Pakistan Penal Code of 1860 also has provisions relating to defamation which were drafted for British India. Even this archaic law offers greater protection to free speech than Section 20 of the PECA. It has ten exceptions including exceptions allowing matters to be published regarding the conduct or character of a person which touches any public question. There is a growing consensus that reputations should not be protected through the criminal law. The UN Human Rights Committee condemns imprisonment as a punishment for defamation because of its impact on free speech.
Giving special status and protection to public figures and institutions is unheard of in defamation laws. In fact, the reverse normally applies. They are excluded from protection because of the public interest in being properly informed regarding their conduct through an independent and free media. The amendments not only seek to protect public figures, they also enable complaints in such cases to be filed by any member of the public. This provision will encourage ugly and manipulated battles through proxies. A holder of public office may utilise a proxy to intimidate independent and critical journalists and can simply feign ignorance when questioned about the same. Similarly, a public figure may not want a particularly offensive communication highlighted or made the subject of a criminal complaint. This would not stop a citizen with dubious motives from filing a complaint under the guise of concern for the reputation of the public figure. The complaint would highlight something that may have otherwise been ignored.
Every despot seeking to restrict free expression always says that genuine journalists have nothing to fear. Our PM says he accepts and is accustomed to criticism from his cricketing days. The difference is in those days I could criticise his foolish cricketing decisions without the fear of being arrested. He is now leading a country not a sports team. Unless they want to be remembered as enemies of freedom, the PM and the government should withdraw these awful amendments and repeal Section 20 of the PECA.
The writer is an advocate of the Supreme Court of Pakistan. He can be reached at email@example.com