Freedom of Expression in Pakistan - Protecting Rights, Challenging Boundaries

We must start by speaking out against injustices, sharing information, ideas, and engaging in civil discourse with others; this shall amount...

We must start by speaking out against injustices, sharing information, ideas, and engaging in civil discourse with others; this shall amount as our contribution to the solution for this distressing situation. 

Written by Maliha Fayyaz

Are we entitled to the protection and realization of our constitutionally granted rights to such an extent that it ultimately poses a threat to others’ interests and as a matter of fact their rights? The presumption of prioritizing one’s own privilege over others is a rather frivolous idea and it directly violates the core value of “equal justice for all’.

Just as a murderer standing on trial cannot plead the defense of right to life when the question of his execution arises, the matter regarding the absoluteness (without any limitations) of other rights becomes a significant topic of discussion as well; especially given the previous controversies regarding the burning of the Holy Qur’an and blasphemous drawings of the Prophet Muhammad (P.B.U.H) in foreign nations finding great support in the idea of freedom of expression, we also see that there are certain contrasting laws in force as well in these countries including the defamation laws, the laws protecting the right to privacy or laws protecting religious and public sentiments, these laws are meant to supposedly curb the unbridled exercise of the right to freedom of expression.

Therefore, a question arises as to what extent a person enjoying the equal protection of the law is at the liberty of expressing their opinions without putting others’ rights into jeopardy and to what extent the legislature can restrict this right without depriving it of its essence.

One cannot contend that this issue is only pertinent in written discourse as current political landscape of our country suggests otherwise. Amidst the arrest of the former Prime Minister of Pakistan the country has plunged into a state of political turmoil and in recent days, we have witnessed the unfolding of a volatile political situation, with rising levels of unrest and uncertainty. In fact many citizens have been denied their fundamental right to express their opinions and freely voice their political stance as a result of internet shutdowns for days which has led us to question whether the imposed restrictions were intended to safeguard the larger public interest, or whether they were used as a tool to suppress political dissent and keep the public in check?

To fully comprehend the application of this complex concept in Pakistan, it is essential to understand the right to freedom of expression and its constitutional significance.

What is freedom of expression?
According to article 19 of the constitution of the Islamic Republic of Pakistan:

“Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions….”

A reiteration of the vision of Pakistan envisaged in the 1949 Objective’s resolution, this article empowers the citizens of Pakistan to express their opinions and additionally provides for the freedom of press, nevertheless it has placed certain restrictions on the exercise of this right.

The existence of such a right in practice specifically in a democratic society which is commended for appreciating the diversity of the opinions presented by its people is indeed of great importance.

Right to freedom of expression enables the decision-makers to recognize and appreciate the general public’s outlook on political matters and the values they wish to uphold. Additionally, this freedom fosters a culture of acceptance towards differing viewpoints. Justice Holmes presented an interesting proposition in this regard which nearly encapsulates what it exactly means to ensure the right to freedom of expression in a democratic society and the tolerance we must bear for contrasting opinions, according to him:

“…if there is any principle of the constitution that more imperatively calls for attachment than any other it is the principle of free thought-not free thought for those who agree with us but freedom for the thought that we hate."

 

Whether the right is absolute or subjected to restrictions?

Article 19 of the constitution contends that the said right is provided to the citizens of Pakistan 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, 1 [commission of] or incitement to an offence.

The article itself has cleared any possible ambiguity with regards to the status of this right, that it is not absolute but instead, a qualified right asserting that it may be interfered with to protect the rights of others, the interest of the public at large or to ensure the interest of, inter alia, glory of Islam and security of Pakistan. But an important question here still persists that to which extent is the government entitled to the said interference? As there is no denying the fact that the government has always struggled with ensuring a balance between this provision and the effect that it may have on the law & order, peace and security within the country lest the restrictions on its use are not adequate.

Such limitations on free expression and speech are somewhat grounded in our collective experiences, which lead us to recognize that an unrestricted exercise of this freedom would undoubtedly result in chaos and disorder. It follows that absolute freedom of expression does not exist, as any unchecked use of this right would have detrimental effects.

Globally as well this right is a conditional one, and every democracy has placed the requisite limitations on its use.

Are the restrictions imposed on the exercise of this right reasonable?

When the restrictions imposed on the exercise of freedom of opinion or press are discussed the idea of censorship comes into light. In Pakistan authorities such as PEMRA (Pakistan’s Electronic Media Regulatory Authority) or PTA (Pakistan Telecommunications Authority) among the others provide guidelines to be followed by the media channels and additionally the most recent piece of legislation on the matter is PECA (Prevention of Electronic Crimes Act (PECA) 2016) which remains highly controversial.

It is generally contended that the practice of the said right in Pakistan among many others is in a rather stifling condition as it is restricted through tactics that include censorship, narrow legislation, and harassment/killing of journalists/ human right activist and others who voice their opinions. Other tactics are crackdown on religious minorities, and suppressing free thought and religious opinion (Liaquat et al., 2016) and if we were to take into account recent incidents including, the ban on one of the biggest news channels and several arrests of civilians on charges of alleged defamatory remarks against military, the situation in fact seems rather dire. 
The decriminalization of the defamation ordinance, 2002 is in itself a long standing debate; According to Nyazee, the criminalization of defamation is no longer accepted as per international standards, as it can be exploited by governments to suppress the media or coerce them into compliance. 

However, in Pakistan, there is a worrying trend of introducing laws that not only restrict press freedom but also allow for physical punishment. In Rana Muhammad Arshaf v Pakistan, the Court also stated that freedom of press will be elusive “if journalists lose their independence and function under fear of being exposed to harm or retaliation because of their reporting” , so if journalists are constantly under the threat of being exposed to corporeal punishment then are we exactly sure that the information reaching to us is exclusive in its entirety? Additionally keeping in view that as per a senate repost, almost 42 journalists have been murdered in the last 4 years out of which 50% murderers to this day remain unconvicted as well.

These incidents do not only reflect a threat to our exercise of freedom of press but also are evident of the stigma surrounding the exercise of our right to information raising many questions towards our authorities which remain unanswered.

Conclusion:

The very essence of democracy lies in the right to freely express oneself, as it allows for a multitude of perspectives to be considered, leading to more informed and comprehensive decision-making by the public.

Truly freedom of expression is not an absolute right but the question of its absoluteness becomes insignificant when considering the "reasonable restrictions" that can be placed upon it. Whether those restrictions uphold democracy by striking a balance between right to privacy and the said freedom or threaten this right and contribute to an atmosphere of chaos, is a matter of significant discussion.

It is imperative that any restrictions imposed on freedom of expression are justifiable and do not unjustly impede individuals' rights to express themselves. Maintaining a balance between protecting individual rights and maintaining social order is a delicate and nuanced issue, requiring careful deliberation and analysis. It is the government's duty to ensure that any such limitations on freedom of expression do not unduly suppress legitimate criticism or dissent, as this could undermine democratic principles and erode freedom and justice.

When this right is suppressed unnecessarily and without reason the public's ability to hold leaders accountable is hindered, paving the way for corruption and abuse of power to thrive unchecked. Conversely, upholding this right results in increased transparency and responsive governance.

Currently, Pakistan is marred with concerns regarding the restriction of this right through censorship, narrow legislation, harassment, and even violence against journalists. The situation is further aggravated by the introduction of laws that limit press freedom and incorporate corporal punishment.

In such a dire situation it's natural to wonder how we, as individuals, can exercise this right in the face of such persecution and retaliation. The answer is simple: we must start by speaking out against injustices, sharing information, ideas, and engaging in civil discourse with others; this shall amount as our contribution to the solution for this distressing situation.  Collectively, legal frameworks can be put in place to safeguard the right to freedom of expression. By opposing laws and policies that suppress free speech and freedom of the press, and promoting education and awareness on our rights, we can foster a culture of patience that values diversity of opinions and keeps its leaders in check.