Editor’s Note: In this article, Younes examines how courts decide on cases concerning freedom of expression. She points out that the Supreme Court affirms the protection of this right as “essential requirements of democracy”, particularly as the Court has the constitutional obligation “to achieve the goal of democracy”. The lower courts however, tend to reaffirm the theocratic character of Pakistan’s constitution. Lower court judges therefore decide cases based on religious rather than legal texts. Moreover, they use the judicial power of contempt to suppress public criticism on the poor performance of the judiciary, no matter how legitimate. The failure of the judiciary, Younes argues, to “clearly define and expand categories” of protected speech, has rendered the test of ‘reasonable restriction’ open to the personal bias and prejudice of individual judges. The decisions of judges close to religious fundamentalists are undemocratic and illiberal.
The influence and fear of religious fundamentalism is so deep that liberal judges choose to either not decide upon a case, or deliberately delay the case. This explains why blasphemy cases are not concluded promptly in courts; for these cases to “linger for an indefinite period” is a judicial norm.
by Javeria Younes
Freedom of speech is the sine qua non of a democratic society; it is the single most important political right of citizens. Without free speech, no political action is possible, and no resistance to injustice or oppression is possible. The freely expressed opinions of citizens help to restrain oppressive rule. It is futile to expect political or economic freedom in a society where free speech is strangled or curbed.
The Constitution of Pakistan guarantees freedom of press under Article 19, subject to “reasonable restrictions”. However, this freedom is curtailed by the ambiguous wording of the provision, which states:
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, [commission of] or incitement to an offence.
A cursory glance at the article makes it clear that rather than being guaranteed, the freedom of expression is in fact being denied to the citizens of Pakistan; the number and extent of qualifications and exceptions makes it impossible for anyone to exercise any semblance of free speech. These “claw back” provisions are prima facie broad and generic.
The article falls short of meeting international standards for the protection of the right to freedom of expression. The use of words like “reasonable restrictions” in the Constitution are themselves curtailing freedom, while the international standards and the rest of the world advocate “necessary” or “legitimate aim”, as well as “clear and present threat.” The muzzling of freedom of expression works to ensure that the Pakistani autocracy, under the guise of ‘democracy’, perpetuates its autocratic regime without being questioned.
Despite its scope, case law regarding Article19 was never expanded by the higher judiciary. Unlike in the US and UK jurisdictions, judges in Pakistan fall short of clearly defining and expanding categories of untouchable speech, or alternatively limiting certain kinds of speech and the circumstances under which they can be legitimately proscribed by the State. Instead, the courts have essentially adopted a case-by-case approach.
There are several important Pakistani judgments that underline the importance of interpreting the Constitution. For example, in Benazir Bhutto vs Federation of Pakistan, the Supreme Court held that
Constitutional interpretation should not just be ceremonious observance of the rules and usages of interpretation but instead inspired by, inter alia, Fundamental Rights, in order to achieve the goals of democracy, tolerance, equality and social justice. The prescribed approach while interpreting Fundamental Rights is one that is dynamic, progressive and liberal, keeping in view the ideals of the people, and socio-economic and politico cultural values, so as to extend the benefit of the same to the maximum possible.
In another case the court had observed the role of the courts is to expand the scope of such a provision and not to extenuate the same.
Though the courts understand the significance of free speech for the survival and sustenance of democracy, they have overwhelmingly held that such rights are not absolute, that reasonable restrictions based on reasonable grounds can be imposed, and that reasonable classifications can be created for differential treatment.
In Jameel Ahmad Malik v. Pakistan Ordinance Factories Board, Wah Cantt, the court held that
In a democratic set-up, freedom of speech/expression and freedom of press are the essential requirements of democracy and without them; the concept of democracy cannot survive. From perusal of Article 19, it is, however, absolutely clear that above right is not absolute but reasonable restrictions on reasonable grounds can always be imposed. Reasonable classification is always permissible and law permits so.
Taking a cautionary approach, the courts have interpreted “reasonable restriction” in a very limited manner. In Ghulam Sarwar Awan v. Gov’t of Sind for instance, the court stated:
The phrase ‘reasonable restriction’ connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond that [which] is required in the interest of the public. The word ‘reasonable’ implies intelligent care and deliberation, that is, the choice of a course which reason dictates.
The politics of freedom of expression
Barring a few, courts in Pakistan have unfortunately played fiddle to atrocious state policies, particularly with regard to the right to freedom of expression of minorities. Ahmadis are often denied the right to free speech under the draconian Ordinance XX of 1984, which proscribes the publication of their literature in any form. Recently, on 19 December 2015, a Supreme Court bench denied bail to the publisher of Al-Fazl, a 102-year-old Ahmadiyya publication, who is behind bars for three years on blasphemy and terrorism charges.
The courts so far have taken no suo motto notice of the National Action Plan that vows to curb free speech under the guise of national security. As per point numbers 11 and 14 of the rudderless plan, “Print and electronic media will not be allowed to give any space to terrorists”, and “Social media and the Internet will not be allowed to be used by terrorists to spread propaganda and hate speech, though exact process for that will be finalized”. Despite being the guardian of people’s fundamental rights, the courts choose to remain a silent spectator to state atrocities in the name of national security.
Freedom of speech in technology
Justice Syed Mansoor Ali Shah in his landmark judgment Ataullah Malik v. Federation of Pakistan laid down the following:
Right to information is another corrective tool which allows public access to the working and decision making of the public authorities. It opens the working of public administration to public scrutiny. This necessitates transparent and structured exercise of discretion by the public functionaries. Article 19-A empowers the civil society of this country to seek information from public institutions and hold them answerable.
In placing fetters or restrictions on the right as enunciated in Article 19, the state must follow procedural requirement; any restrictions must be imposed through law. In other words, there is no arbitrary right or discretionary authority vested in the executive branch of the state to curb these freedoms at will. It has been left to the legislative branch of the state to regulate or restrict these freedom, if need be, through legislation. In Bytes for all vs federation of Pakistan, also known as the YouTube case, the Court was told by the Ministry of Information that currently no technology exists in Pakistan to block a particular content on a crowd sourced website such as YouTube. The courts shied from giving any clear verdict, relying primarily on amicus curie (friends of court) to explain the issue pertaining to technology, and the ramifications of banning YouTube to the fundamental rights of citizens. The case is still pending, while YouTube has unofficially been unbanned in Pakistan.
Freedom of expression and contempt of court
Catherine Anne Fraser, Chief Justice of Alberta, Canada once said, ‘We have independence for one reason – to protect the rights of our citizens’. In the case of Pakistan however, the independence of the judiciary has little served to protect citizens’ freedoms.
On 9 September 2014, the Supreme Court issued a contempt of court notice to anchorperson Mubashir Luqman and CEO of the ARY TV channel for allegedly maligning judges of the apex court in a programme broadcast on 29 May 2014. The court ordered that Luqman had crossed all limits and his behavior was causing hatred against the judiciary. It also said strict action will be taken against any channel who allows the anchor to conduct a program.
Earlier on June 11 the anchor was stopped by the Islamabad High Court from conducting any TV program on the basis of a complaint. Mr. Luqman was served on the basis of defaming and ridiculing higher government authorities and dignitaries in his show. Interestingly, the judge who passed the order was well known for his affiliation with fundamentalist groups and has previously held in favor of a murderer, Mumtaz Qadri, who had killed the governor of Punjab for blasphemy.
The superior judiciary in many countries across the world has restricted the ability of government bodies, including judicial courts, elected bodies, state-owned corporations and even political parties, to bring action against journalists for defamation. This is in recognition of the vital importance in a democracy of open disparagement of government and public authorities, including courts. The legal jurisprudence on the right to freedom of speech in Pakistan however, has yet to reach this level of maturity.
On October 28, 2015, a 19 year old blogger and political worker of Pakistan Tehreek Insaaf (PTI) was arrested by the Federal Investigation Agency (FIA) for allegedly criticizing a sitting judge of a Peshawar High Court. Qazi Jalal was arrested for his tweets against the judiciary under the Pakistan Electronic Transaction Ordinance 2002, and is said to still be in FIA’s custody. Media reports have also stated that action against Qazi Jalal was taken on a complaint registered by unknown Pakistani citizens, and he was arrested on charges of creating negative propaganda against the judiciary. Jalal has reportedly been criticizing decisions of the judiciary for a long time via his twitter account @JalalQazi.
Freedom of expression and blasphemy law
People accused of violating Pakistan’s draconian blasphemy laws face proceedings that are glaringly flawed. In a report published by the International Commission of Jurists (ICJ) titled, “On trial blasphemy law”, it was stated that judges of the lower judiciary demonstrate bias and prejudice against defendants during the course of blasphemy proceedings and in judgments. In August 2000, Justice Nazir Akhtar of the Lahore High Court stated in a public lecture that “we shall slit every tongue that is guilty of insolence against the Holy Prophet”.
In The State v. Robina Bibi, the trial court found that an office bearer of the Pakistan Sunni Tehreek, a religious organization, had turned a dispute between two neighbors into a criminal complaint under section 295-C of the Penal Code for “his own ulterior motives and reasons”. However, instead of directing the authorities to take action against witnesses who had committed perjury to frame the accused, the Court concluded its judgment with a prayer that, “God give them wisdom to understand and appreciate what is ordain(ed) and take care in future before making such types of accusations and avoid the mischief in future and shaitaan (Satan) who is always ready to attach”.
This reasoning can also be found in The State v. Younis Masih, where the trial court rejected the credibility of the defendant’s testimony as “not believable”. The judgment noted that if the accused believes “in the honour of the Holy Prophet PBUH…why (has) he up till now (not) embraced Islam?” Consequently, the trial court convicted the accused and sentenced him to death.
Pakistan’s trial courts are particularly prone to being swayed by popular stance, and localized external pressures, and make judgments against the accused. The lack of accountability and disciplinary mechanisms within the judiciary and the bar, and the non-compliance of their respective codes of conduct, allow individuals engaging in such misconduct to evade all responsibility.
From 1986 to 2005, only one conviction was upheld by the high courts in blasphemy cases. Since 2005 however, the Lahore High Court has confirmed the blasphemy convictions and death sentences of five individuals.
In one case, 17-year-old student Sami Ullah was arrested on blasphemy charges based on the complaint of the Controller of Examinations, Intermediate Board of Education, Karachi. The professor charged that Sami ullah wrote derogatory remarks in his answer sheets (Urdu, Islamiat and Physics) against the Holy Prophet Muhammad (Peace Be upon Him). In an application to the judicial magistrate, Sami Ullah confessed to committing an “unpardonable sin”. He apologized, promising never to commit “such a sin” again. Since 2011, the boy has been languishing in jail; the Session’s Court judges are reluctant to hear his case due to possible retaliation from militant groups. Sami Ullah’s legal counsel fears that the case will not progress, and will be made to linger for an indefinite period, as is the norm with most blasphemy cases in Pakistan.
Freedom of expression and press
The courts in Pakiatn have taken a cost-benefit approach to striking a balance between preservation of freedom of speech and protecting public interest within the restrictive categories of Article 19.
In the matter of The Daily Ehsan, the court looked at the rules of engagement in controversial religious speech and said that, “There was no restriction on such speech as long as the speech or writing furthered the ends of the controversy. It was only when such speech contained malice and was not necessary to further the ends of the controversy, that it could be scrutinized by the courts.”
In Working Muslim Mission and Literary Trust, Lahore v. The Crown, while examining the limits of political and anti-government speech, the court urged that
It was very important to make a distinction between the effect of an article which was merely disparaging in nature and one which had the effect of bringing the Government into hatred and contempt—which in turn were very strong terms and may not necessarily follow from a disparaging remark against the Government or its executive officers.
The courts historically have limited and curtailed the freedom of the press. In Sheikh Muhammad Rashid V/S Majid Nizami, Editor-In-Chief, The Nation And Nawa-E-Waqat the court held:
Article 19 of the Constitution guarantees the freedom of Press. However, it does not give licence to the press to publish any material which may harm or cause damage to the reputation of a person and such freedom of press is subject to such restrictions as could be legitimately imposed under the law. Although the scope of freedom of press has been enlarged after the omission of the word ‘defamation’ from Article 19 yet it does not licentiate the press to publish such material which may harm or cause damage to the reputation, honor and prestige of a person. The Article provides the freedom of press subject to any reasonable restrictions which may be imposed by law in the public interest and glory of Islam, therefore, the press is not free to publish anything they desired. The press is bound to take full care and caution before publishing any material in press and to keep themselves within the bounds and ambit of the provisions of the article.
Likewise in Syed Masroor Ahsan v. Ardeshir Cowasjee, the court observed that freedom of press was not “absolute, unlimited and unfettered,” and that its “protective cover” could not be used for “wrongdoings”.
French enlightenment writer Voltaire rightly said, “I do not agree with what you have to say, but I will defend to death your right to say it.” The judiciary, state and legislature in Pakistan are still not ready to allow the citizens their fundamental right to speak their mind. Tolerance to criticism is the echelon of a civilized and democratic society; it cannot be expected from a society whose moral fabric is torn by religious fundamentalists who have no respect for the difference of opinion.
 See Benazir Bhutto v. Federation of Pakistan, (1988) P.L.D. 416, 489 (Pak.).
 See Muhammad Nawaz Sharif v. Federation of Pakistan, (1993) P.L.D. 473, 674 (Pak.)
 Engineer Jameel Ahmad Malik v. Pakistan Ordinance Factories Board, Wah Cantt, SCMR 164, 178 (2004) (Pak.), also see Zaheeruddin and others v. The State and others (1993 SCMR 1718).
 P.L.D. (Sindh H.C.) 414, 418–24 (Pak.)
 PLD 2010 Lahore 605
 The Daily Din, 28 August 2000.
 On Trial: 2007, pp. 83-84 as cited in the 2015 report by international commission of Jurist “The Implementation of Pakistan’s Blasphemy Laws”.
 2007, pp. 83-84
 Asian Human Rights Commission (AHRC), Asylum appeal for young man threatened to death by religious extremists Issued on December 24, 2015 http://www.humanrights.asia/news/urgent-appeals/AHRC-UAC-149-2015/
 (1949) P.L.D. 282, 296 (Lahore) (Pak.)
 (1954) P.L.D. 724, 730 (Pak.). Also see See Ilyas Rashidi v. Chief Commissioner, Karachi, (1975) P.L.D. 890, 891 (Karachi) (Pak.).
 P L D 2002 SC 514
 (1998) 50 P.L.D. 823, 834 (Pak.)