Last week the Punjab government and in particular the city district government of Lahore took the admirable step of curbing hate speech by taking down posters targeting the Ahmedi community that were displayed in Lahore’s Hafeez Centre. Earlier in the week, the police arrested a Punjab University professor for allegedly propagating the anti-state and anti-democracy message of Hizbut Tahrir, a proscribed organisation. These are steps that should have been taken long ago and many of us had repeatedly pointed out in columns and through social media the need for the state to come down heavily on such instances of hate speech.
Some people have argued that these measures constitute a curb on freedom of speech. It seems that these people have totally misconceived the meaning of freedom of speech as a concept generally and in particular the right of freedom of speech as exists under Pakistani law. Personally, I would prefer the kind of First Amendment regime on freedom of speech that exists in the US but bear in mind that even there fighting words, i.e. speech that incites violence, is actionable. In Pakistan’s case, while freedom of speech is a fundamental right, it is a qualified right under the Constitution of Pakistan itself. The legislature in Pakistan can impose reasonable restrictions on this right 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.
In the case of Ahmedis, their freedom of speech has been dealt a severe blow by the state and its laws. Bhutto’s constitutional amendment declared them non-Muslims for the purposes of law and constitution and added them, forcibly, to the category of religious minorities. General Zia’s Ordinance XX of 1984, a law that is one of a kind in its insensitivity and outright cruelty, makes it unlawful for them to even consider themselves Muslims. Much, indeed almost all, of their literature has been proscribed in Punjab because of an arbitrarily appointed body of ulema (clergy) that advises the Punjab government on hate speech! Even as I write these lines, an old bookseller of the community has been hauled into jail on trumped up blasphemy charges. Another Ahmedi, the publisher of the historic Al-Fazl newspaper, has been denied bail by the Supreme Court (SC) of Pakistan with Justice Asif Saeed Khosa remarking that when it comes to religion, unfortunately, the law in this country has to take a back seat. Fairness, therefore, demands that hate speech against them should be equally criminalised and their right to live as citizens, unharmed without harassment, in this country protected in accordance with the Constitution and, in particular, the Objectives Resolution. Having been given the status of a non-Muslim minority, with extremely limited freedom of speech, against their will, surely they need to be protected from harassment by the majority community more than anyone else. All the provisions of the Constitution that speak to the cause of minorities and their status — hypothetically — as equal citizens should in theory be applicable to them as well. Therefore, one lauds the Punjab government’s belated action against hate speech directed at this community as a small mercy and a baby step in the right direction.
The second issue is of the action against the members of Hizbut Tahrir in Pakistan. Hizbut Tahrir, make no mistake about it, stands for nothing less than the overthrow of the state by force. There are people who suggest that Hizbut Tahrir is non-violent because they are not actively engaged in any militant activity against the state. They are wrong. Hizbut Tahrir believes in coopting people in positions of power, especially in the military, and making them rise up in open rebellion against the established legal order. The end game for them is very much violent and poses a direct challenge to the constitutional government of the country. Every member of Hizbut Tahrir without exception, therefore, is guilty of high treason as defined by Article Six of the Constitution. It goes without saying that high treason is not a fundamental right under Pakistani law or any law for that matter. No civilised government can allow a direct threat to the established legal order in any manner. No occasion arises for the freedom of speech argument either legally or morally in their defence. Indeed, it is the patriotic duty of every citizen to report any such person belonging to Hizbut Tahrir, which has been banned by law, engaging actively in propagation of that organisation’s reprehensible rhetoric.
History tells us that governments elsewhere have acted against groups doing much less. The US, that champion of freedom of speech, came down hard on Communists even though the Communists did not constitute the kind of threat to the US that Hizbut Tahrir poses for Pakistan. The First Amendment was conveniently sidestepped even by the US Supreme Court in that instance. I am not suggesting that the US was right in its 20th century witch hunts against Communists but that, in our case, the threat constitutes a clear and present danger. At the very least it would be consistent for Pakistan to do so given our own patchy history when it comes to curbing political dissent. Surely political dissent in the name of religion should not be excluded from the broader principle set by the state.
The alternative of course is to have unfettered freedom of speech. That would mean undoing all laws that curb freedom of speech. But it has become increasingly clear that Pakistanis are in no mood to take that high road, at least not at this point in time. I put to you then that there is no such thing as selective freedom of speech. I put to you that when the state curbs freedom of speech, especially of minorities, and when it prosecutes people for the written and spoken word, justice demands that it should do so in a just and equitable manner. It should mean zero tolerance for any hate speech as well as subversive speech in the name of religion, at least till Pakistanis grow up, learn to live with disagreement civilly and learn to differentiate, without a nanny state, between good speech and bad speech.
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