Daily Times

Article 19 of the constitution guarantees freedom of speech, expression and press. It also mandates that these rights are not absolute and are subject to reasonable restrictions imposed by law. In addition, this article envisages that the object of such restrictions must have direct nexus with compelling governmental interests. They are the glory of Islam, integrity or security or defence of Pakistan, friendly relations with foreign States, public order, decency or morality, respect for the court, commission of or incitement to an offence.

Induction of compelling interests in the Constitutional text is aimed to limit the scope of restrictions on free speech. But for the specified compelling interests; restrictions cannot be imposed. These categories were, for the first time, introduced in the Constitution of 1956. Before that, the government had absolute power to limit and even ban free speech “for any reason whatsoever” or if it “considered it necessary or expedient to make such an order”.

Despite the best intentions of the framers, due to the sheer breath of these discontinuous and undefined compelling interests envisaged in article 19; we don’t curtail arbitrary government. We expand it.  What does glory of Islam mean? Why have friendly relations with foreign states as a qualification? Morality? Worse still, decency?  These categories apart from being ludicrous, are flexible enough to be added to in the future. For instance, glory of Islam was not envisaged as compelling interest under the Constitution of 1956 or under the Constitution of 1962. Nor were the words “integrity or defence” of Pakistan present in either of the previous two Constitutions. The compelling interests are vaguely strung together that still allow arbitrary forces to prevail over deliberative ones.

The next question is; just what is reasonable? Pakistan has had a troubled relationship with free speech. It is not just the military dictators but also the civilian leaders that have struggled with it. Given our chequered past and recent instances of silencing dissident journalists and bloggers, the margin afforded by the executive while interpreting the word “reasonable” is fairly narrow.

Judiciary on the other hand, given the recent trends, is liberalizing the contours of free speech and reading down the restrictions imposed on it. The approach nonetheless is not structured nor consistent; and varies to a large extent, from a judge to a judge. Our courts too need to develop a more sophisticated approach akin to proportionality test employed in the EU or similar to the test in the US to review questions of fundamental rights or suspect classes. This will make it easier for the people to appreciate the scope of restrictions imposed on free speech.

Since our coordinate branches are either averse or inconsistent in protecting it; free speech is illusory, in Pakistan, even today.  At its core, free speech, only cohabits dissent. Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of existing order.

We can’t simply shun an expression of an idea simply because society finds it abhorrent or disagreeable. The quality of public discourse can never be improved unless there is unfettered interchange of ideas. As Thomas Jefferson said in his First Inaugural Address: “Error of opinion may be tolerated where reason is left free to combat it.”

The whole culture around free speech needs to change in Pakistan. The building block is our schools and universities. The idea of safe space for students needs to be dispensed with. We must not ask of our students to disengage from socio-political trends. Let their ideas be challenged. That only allows pupils to develop them. Milton’s passionate defence of free speech is instructive here: “Though all the winds of doctrine were let loose to play upon the earth so truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and falsehood grapple; whoever knew truth put to the worse, in a free and open encounter?”

Free speech cannot be restricted because of fear, as some of the compelling interests in our Constitution indicate. That breeds repression, anger and hate. If we continue to block avenues of speech and expression by call them a threat to integrity, security or defence of the country, label it immoral or blasphemous; it will only beget violence or incitement to it

Free speech cannot be restricted because of fear, as some of the compelling interests in our Constitution indicate. That breeds repression, anger and hate. If we continue to block avenues of speech and expression; call it a threat to integrity, security or defence of the country, label it immoral or blasphemous; it will only beget violence or incitement to it; on campuses, on public squares, on media and even the parliament. We keep our people from developing ideas yet cry foul when they resort to the only way they can to express themselves.  We can’t fashion censorship and regret dire dearth of public intellectuals. We can’t have sacred cows; and when mildly challenged, have enforced disappearances. We can’t have sweepingly broad restrictions on speech yet call it free!

Not just the culture, we need to revisit the article 19 of the Constitution. The drift of the article 19, as one reads through it, looks like a set up before the jugulars arrive: the compelling interests! Perhaps even the framers’ distrusted free speech. Say we turn the tables: “Parliament shall make no law abridging the freedom of speech or expression or freedom of press”. Wouldn’t it be disruptive? Yes, a necessary and an essential disruption!

The writer attended Berkeley and is a Barrister of Lincoln’s Inn

Published in Daily Times, January 15^th 2018.