Pakistan: Freedom of Speech In A Quasi-Democratic Polity

“The further a society drifts from truth, the more it will hate those that speak it” George Orwell

Shakil A Rai

Press-government relationship is adversarial in nature, is a truism. Freedom of speech is not given, it has to be attained, and then guarded against any encroachment by the authorities. Political powers are always weary of a free press, and a rights-conscious civil society. In a democratic dispensation human rights including freedom of speech are enshrined in the constitution, and the courts and civil society protect these rights against any violation thereof. Institutional balance among the legislature, executive, and judiciary is another layer of guarantee of human rights and freedom of speech. In the case of Pakistan laws are being flouted with impunity and institutional balance is heavily skewed in the favor of security establishment at the expense of all others. 

Pakistan is a democracy and the press is free as envisaged in the Constitution. And yet, we are quite familiar with formal and informal restrictions on the freedom of speech over the decades. Right now we are witnessing a new round of struggle unfolding between the media and the authorities. After a decade of democracy we are now in a quasi-democratic era, where limits of the civilian authorities have been constrained like never before. The press is under siege once again, and the judiciary, despite its activism, seems helpless to assert itself in any meaningful way in this context.   

In its judgment issued this month on the blockade of Islamabad by the Tehreek-e-Labaik Pakistan (TLP) in November 2017 the Supreme Court of Pakistan said that overt and covert censorship is unconstitutional and illegal. The court said “Nebulous tactics, such as issuing advice to self-censor, to suppress independent viewpoints, to project prescribed ones, to direct who should be hired or fired by media organisations is also illegal. No one, including any government, department or intelligence agency can curtail the fundamental right of freedom of speech, expression and press beyond the parameters mentioned in Article 19 of the Constitution. Those who resort to such tactics under the mistaken belief that they serve some higher goal delude themselves.” (Dawn)

Instead of enforcing the court order the government seems to say with impunity “the Supreme Court has issued an order, now let their Lordships implement it”.

In the past the government in power, be it military dictatorship or a civilian government, never used intelligence agencies, or unnamed, unknown powers to curtail press freedom. “Press advice” was issued from the Press Information Department from an open phone number by an identifiable state functionary. There was an informal understanding between the press and the government that the “advice” will be followed without referring to the source. Sometimes newspaper would ignore the advice and defy the government. Newsprint quota, government advertisements, and duty-free import of printing machinery (including luxury cars for personal use) were used as carrot and sometime as stick to tame the press. In all these cases the media knew the official personnel, as the personnel knew the journalists and newspaper management.

The current situation has become a cloak and dagger operation. Where mafia style tactics are being employed to tame, silence, remove, kidnap, and even kill, those journalists who refuse to toe the official line. Press advice, instructions, and threats are made to working journalists and management of the media houses from untraceable phone numbers, by unknowable and unidentified personnel. A number of newspaper columnists and television commentators have been removed from their assignments on the “advice” of these unidentifiable powers. Strong media organizations like Dawn Group and Jang Group resisted economic and administrative pressure for some time but eventually capitulated and compromised, to avoid extinction, and to make the best of the bad situation. 

In yet another unprecedented twist, intelligence agencies are widely believed to instruct newspaper distribution agents, and delivery boys which newspaper is to be delivered in which areas, and which ones are not to be distributed at all. Similarly some television channels are blocked in certain cities and localities on the order from unknown sources. Electronic Media Regulatory Authority pleaded ignorant in the Supreme Court as to why and by whom these channels were being blocked. The Authority did not take any action as it was supposed to under the law against the violators or in support of the victims. Supreme Court observed that PEMRA abdicated its statutory duty to protect the legitimate rights of its licensed broadcasters. It also failed to take action against those who violated the terms of their licenses. Helplessness of the highest media regulatory authority in the exercise of its mandatory obligations is telling. This leaves everyone in the dark, and the law becomes redundant in practice.

Early this week, Manzoor Pashteen a leader of Pashtun Tahafuz Movement (PTM) recorded an interview with Khyber News, a local television station in Pehawar. According to media reports a group of plain-clothed men descended on the studio and ordered the management not to broadcast the interview. The management obliged, without asking what state institution the men represented and under what law they were ordering the blackout of the news program.

This media control mechanism above and beyond the law is creating a sense of insecurity, and fear among working journalists and rights activists. The perpetrator has no law to follow, and the victim has no legal recourse against the unknown forces. Erosion of the rule of law is the sign of a failing state. Where law and customs are trampled over with impunity the state of war-of-all-against-all is not far behind.       

The civilian government is now in the process of enacting a draconian law to control print and electronic media through a powerful bureaucratic set up. The draft law has been rejected by every media professional organization. The draft is a modern day version of the Press and Publication Ordinance-1960 promulgated under the first military regime of Ayub Khan.  The new draft law is being promoted by the government as a benign effort to bring print and electronic media laws under one unified law. A closer look at the draft exposes it as an attempt to bring the whole gamut of print, electronic, and social media under one centralized control.

Supreme law of the land The Constitution says, “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, or incitement to an offence.” (Article 19)

This constitutional guarantee under “reasonable restrictions” gives the government enough power to bend the media discourse to its will for reasons not strictly defined in the law. Expressions like “glory of Islam”, “defence of Pakistan” and “friendly relations with foreign States” can be invoked for almost anything deemed critical. It is “reasonable” to assume that it can prohibit a critical review of the criminal laws (Hadood Ordinance) imposed in the name of Islam. It can restrict criticism of the policies of a “friendly state”. It is well know how the Defense of Pakistan Ordinance-1965 was abused by various governments to hound political opponents and to control the press.

The state authorities do not deem “reasonable restrictions” under Article-19 enough to keep the mass media on a steady course. That is because the courts have often interpreted “reasonable restrictions” more broadly than the authorities would like. The new draft law if enacted will impose serious limitations on the freedom of speech, and give enough arbitrary powers to state bureaucracy to impose their will through administrative and financial measures. Needless to add that these media control mechanisms have not worked in the past; and are not likely to silence the dissenting voices, now. The only problem is by the time the current phase of controlled democracy and gagged media come to an end the country would have suffered a lot. Resistance is on and will continue

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