Daily Times

Three years since the
YouTube ban and the futility of it all stares us in the face. Not only is the website easily accessible — mercifully — but the country nevertheless carries the burden of being the only nation on earth that has supposedly blocked a treasure trove of knowledge and entertainment. Almost two and a half years ago, representing a civil society client, I challenged the ban in the Lahore High Court (LHC) on purely constitutional grounds i.e. namely the right of freedom of expression and speech contained in Article 19 of the Constitution of the Islamic Republic of Pakistan, 1973. After one and a half years and 20 plus hearings, the High Court, acknowledging the many advantages of having YouTube, nevertheless directed the petitioners to first seek a clarification from the Supreme Court (SC) of an order it had passed on September 17, 2012 whereby the Chief Justice (CJ) of Pakistan, Iftikhar Chaudhry, had directed the Pakistan Telecommunications Authority (PTA) to block “U-Tube” on an IP level. Consequently, the matter now rests in the SC.
YouTube was not the first website to be blocked in Pakistan of course. The policymakers in this impoverished country believe that regulating what a person surfs on the internet is the business of the state. Consequently, pornography has supposedly been eliminated. How effective the bans on pornography are one need not say. However, one marvels at the mindset that feels that in this day and age, a state can control and regulate individual behaviour like a nanny. It is precisely this mindset that prioritises morality over the actual issues that the people of Pakistan are confronted with on a daily basis. The whole theory of a democratic state is inverted as a consequence of this paternalistic attitude on the part of the state. What does the state have to do with the determination of the moral conduct of an individual? It is the individual who collectively, with other individuals, is supposed to regulate the conduct of the state in a democracy and clearly the people of Pakistan have been unable to exercise their right as a collective to do that. As a result, you have — I am sorry to say — petty individuals who by sheer luck have been placed in a position of limited power or who have, by threats of violence, been forcing down their own outmoded and outdated notions of morality on the rest of Pakistan.
The state’s response to violence and blackmail by certain sections within its own bureaucracy as well as certain opprobrious voices from the extreme right wing is often one of inaction or regressive action. Zulfikar Ali Bhutto’s Second Constitutional Amendment comes to mind. The YouTube ban by the last PPP government was a repeat performance on a smaller scale. The rulers then had tried to out-mullah the mullahs by declaring a national holiday, a national holiday that soon descended into violence and chaos. As a consequence, the present government is too scared to even touch the issue. Our so-called leaders in this country refuse to lead. The mobs rule the roost and we have lowly state functionaries determining the future of one of the largest nations on earth. The courts are pusillanimous and refuse to enforce the fundamental rights granted to individual citizens by the constitution they have sworn to uphold and to protect. One such fundamental right is the right to privacy and inviolability of the home. That concept extends to computer screens viewed within one’s home or personal space. Yet not only is the internet subject to censorship — albeit failed censorship — but all our computers and devices are subject to mass surveillance and data mining. This last bit is done in the name of national security of course, as if mining data from ordinary citizens is somehow going to secure the country against the terrorist threats. In this, the west is not blameless. The paragon of individual freedom, fundamental rights and democracy, the US has set an odious precedent for other regimes to follow. The champion of democracy in our neighbourhood, India, is no exception. The recently de-classified Subhas Chandra Bose files show that the Indian state has a long history of surveillance dating back to independence. With precedents like this what is there to stop our state, which has never laid any claims to either individual freedom or democracy?
Yet that is precisely what needs to change going forward. It does not matter what India does or what the US does. Pakistan’s Constitution envisages the people as the fountainhead of political legitimacy and privileges individual fundamental rights over all other constitutional rights. In theory at least we are supposed to be the masters of our own destiny. The preamble to the Constitution states “Now, therefore, we, the people of Pakistan…” It is “we, the people of Pakistan” that are recognised by the constitutional scheme as the ultimate arbiters of power and state legitimacy. It is “we, the people of Pakistan” who must decide whether we are going to allow the usurpation of our privacy, expression, speech and other fundamental rights in our name by state functionaries who ride roughshod over these rights. The answer must be an overwhelming no. Individual rights must not be sacrificed in the name of morality, national security or any misguided notion of religiosity. “We, the people of Pakistan” must reject all efforts to foist a nanny state upon us.

The writer is a lawyer based in Lahore and the author of the book Mr Jinnah: Myth and Reality. He can be contacted via twitter @therealylh and through his email address yasser.hamdani@gmail.com