A plea has been submitted in the Supreme Court of Pakistan for the court ‘to order the federal government to review existing laws regulating speech and take appropriate measures to prohibit institutional defamation and enact legislation in line with Article 19 of the Constitution.’ The second part of the petition deals with directing the ‘federal government should engage in meaningful consultation with relevant authorities with a view to introducing legislation for “uniform regulation of all media by a unitary regulator”.’
Article 19: Freedom of speech, etc.-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 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.
Many terms within are subjective in nature. Terms like decency or morality for example. The ideas of decency and morality are relative. They will vary as per geographic location and culture. Jurisprudentially, law would consider the very concept to be contestable.
The other term that desires clarity is security of Pakistan. Though any act or speech that has the potential to or directly harms the security of Pakistan is not ok. However, not every genre of public disorder is a threat to the state. This should only mean to cover extreme kinds of riots, war against state, rebellion that has the potential to, or directly leads to harming the state and/or damaging public property and loss of life.
Anything against the glory of Islam is not allowed under Article 19. Though it is understandable that this clause addresses the religious sensitivities of a largely Muslim country, however, this excludes the religious sensitivities of non-Muslims but who are very much Pakistanis.
These terms need absolute clarity. Subjectiveness has no place in law.
Coming to the second part of the petition: The Islamabad High Court (IHC) had rescinded the Pakistan Electronic Crimes Act (PECA) Amendment Ordinance in April 2022. This ordinance was promulgated by PTI. ‘The court order noted: “Freedom of expression is a fundamental right and it reinforces all other rights guaranteed under the Constitution of the Islamic Republic of Pakistan, 1973 [and] free speech protected under Article 19 and the right to receive information under Article 19-A of the Constitution are essential for development, progress and prosperity of a society and suppression thereof is unconstitutional and contrary to the democratic values.” [Published April 9, 2022] Justice Minallah had therefore struck down The Prevention of Electronic Crimes (Amendment) Ordinance, 2022 as being unconstitutional.
The idea of institution for the uniform regulation of all media by a unitary regulator is an unworkable concept. The addressing of different bodies dealing with different kinds of mediums of communication need amendments where there are gaps, subjectivity and duplication. However, creating one body, to deal with multifaceted mediums can point towards only one reason only: muzzling the media. Such an organization cannot deliver because the landscape of work deals with multidimensional angles of mediums being used for communication. Experts for different mediums are different. The organization so instituted can harshly punish media houses or/and media persons for even legitimate reporting.
The weaker the government, the greater the desire to crush the voice of media for criticism and of educating masses on the cuts on public rights. Media is the watchdog of the society; it demands that elected and public officials be accountable. The alternative narrative is not liked by a weak government. This does not mean that those elements on the take from vested interests, thereby creating deliberate chaos, go unpunished. The flip side of the coin is, many governments reportedly too do the same.
There are rules and regulations already existing that need to be implemented across the board. Organizations exist who are entrusted with the responsibility to regulate. Media is the bridge between the people and their representatives. If the bridge is destroyed, an essential pillar of a democratic order is destroyed.
The writer is a lawyer, academic and political analyst. She has authored a book titled ‘A Comparative Analysis of Media & Media Laws in Pakistan.’ She can be contacted at: [email protected] and tweets at @yasmeen_9.