Salute to the virtually silenced

November 06, 2019

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The writer is an attorney teaching constitutional law and political philosophy.
The writer is an attorney teaching constitutional law and political philosophy.

IT was the worst of times, it was the worst of times — or so it certainly feels in Pakistan. The air too has recently decided to give up. If no one cleans house, themselves, their souls, then why must anyone else take the trouble to do so?

These days, Islamabad is witness to a vast sea of humanity that has flowed in from the untended and unloved parts of the country to demand freedom. The words and slogans of this massive crowd, the stubborn self-righteousness, have also spread like a vast mushroom cloud over the length and breadth of the country. These people want to be free, but hold the condition of imprisoning others as integral to their freedom.

In these smoky, dimly lit times, amid the echoes of a coughing and sputtering humanity, one must be grateful for anything that interrupts the baleful season of mourning. Just as the definition of freedom is being questioned from loudspeakers and megaphones, one act of courage by the Islamabad High Court is being lauded. The court’s decision to rule in favour of the Awami Workers’ Party (AWP), was included in the Global Freedom of Expression database at Columbia University, which cites landmark cases related to the freedom of expression from around the world. The Awami Worker’s Party vs the Pakistan Telecommunication Authority which was decided on Sept 19, 2019, has been listed as a case that expands expression.

The facts are simply this: during the election season of 2018 when campaigning was under way, the official website of the AWP was blocked by the PTA. The party filed a writ petition against the blocking of its website, a controversial move as the Constitution of Pakistan, 1973, guarantees basic rights of due process for all citizens.

The government and PTA believe they have broad powers to assault the rights of political organisations.

For their part, the defendants stated that the Prevention of Electronic Crimes Act (Peca), 2016, permitted them to block any website. The case eventually landed up with the Islamabad High Court where the two sides presented their arguments before Justice Athar Minallah.

The government’s position — strident as it has been — remained the same. Counsel for PTA argued that Section 37 of Peca gave them the blanket authority to block any website of any party or organisation at any time, based on their independent (and unclear) estimation of national security needs.

One of the lawyers representing the AWP emphasised that basic due process rights guaranteed in the Constitution are required to be read into any statute that is passed by the legislature. When pressed on the issue of the lack of specific rules for blocking websites, the lawyers for the PTA admitted that there were no such stated rules but that did not mean that the government did not have the right to block websites.

Justice Minallah did not mince his words. In his opinion he stated: “Pakistan Telecommunications Authority is definitely not empowered to pass an order or take action under Section 37 of the Act of 2016 in derogation of the mandatory requirements of due process.”

He added that the PTA had the responsibility to set out rules regarding the blocking of particular websites and to provide due notification of these rules. The court held that the rules should already have been provided given that the act itself was passed some time ago. The new deadline for the provision of the rules was set at 90 days after the issuance of the decision in the case.

As was noted after the decision was released, the court did not make a ruling on the fact that there were no restrictions placed on spoken speech while websites and online material were being blocked. This matter is relevant in the context of freedom of expression. The fact that the government and PTA consider themselves as having broad powers to assault the rights of political and other organisations that rely on their online presence while leaving untouched those that rely on other forms of organisation is notable.

The argument here is not that the rights of those that speak in offline mediums should also be curbed but that it should be noted that restrictions implemented with great vigour on one and not another can be considered indicative of the government’s own motives.

The result is before us. Certain kinds of political movements are welcome in Pakistan, despite all the venom and divisiveness they inspire. It does not matter how much their actions disrupt the lives of ordinary people, the costs they impose on the taxpayer-funded infrastructure. Nor are the security costs and threats imposed by such gatherings considered worthy of the same blanket and unexplained blockages that are the lot of other groups.

In a country where so many appear to be talking — and all at the same time — it might appear as if everyone can speak with the same rights as everyone else. This is not the case.

The framework of laws and freedoms and then the regimen of who they are enforced against all determine who is permitted to be vocal and who is permitted to be visible. Indeed, there are those who are trying to tread the trail of the good and the right; Justice Minallah is one of them. At a moment where exhaustion has set in and depredations issue fast and furious from the mouths of so many, such individuals are to be lauded. Perhaps others, faced with similarly momentous decisions in the future, will do the same — and focus on the question of how those that rouse thousands with angry words are as deserving of scrutiny as those who put up their official website on the internet.

The writer is an attorney teaching constitutional law and political philosophy.

rafia.zakaria@gmail.com

Published in Dawn, November 6th, 2019