PAKISTAN’S Constitution introduces the country as a federal republic and declares life, liberty, body, reputation and dignity of every person inviolable (Article 4). It also lists some 23 fundamental rights including the right of free speech under its very first chapter. The list is as exhaustive as it gets.
Would it suffice for a nation to call itself a democracy, or for that matter, should ever a nation be content with having just a high-sounding ‘bill of rights’? Didn’t East Germany go by the name of the German Democratic Republic, or doesn’t the northern part of the Korean peninsula still call itself Democratic People’s Republic of Korea? Stalin gave Russia a written constitution in 1936 that not only provided for direct universal suffrage and a secret ballot but also enshrined a pocketbook of civil liberties, ie freedom of conscience, assembly (even demonstration), speech and press, apart from the inviolability of home and privacy of correspondence.
A liberal democratic order is not about grand declarations of individual liberties. It is essentially a value system of a society that puts absolute premium on some fundamental freedoms — of person, of opinion (religion) and of free speech — coupled with the belief that none of these freedoms can ever be taken away except through due process of law as understood in that glorious evolution of common law tradition.
Individual liberties can neither be realised under tyranny nor under anarchy; these liberties require a steady-state of political order where responsibility for upholding civil liberties rests squarely with the legislators and administrators. However, whenever the executive instinct for the pecking order and legislative propensity for majoritarianism gets the better of these individual liberties, judges have to step in as arbiters and protectors, duly armed with writ jurisdiction and that extraordinary power under Article 184(3) of the Constitution in our case.
Should a nation be content with a high-sounding ‘bill of rights’?
In this part of the world, judges have often done a great job to protect freedom of person and speech from the excesses of non-strategic state minions and political co-sharers of state power. However, our scorecard in respect of these civil liberties is not enviable when in conflict with the dominant quadrants of state power. Worse still, our record on these liberties, this decade, this year and this month has somehow become increasingly murkier; it can no more be borne by our coat of arms.
Of all the civil and political liberties, freedom of speech occupies a unique place in the evolution of a pluralist democratic order. It not only helps realise the autonomy of the individual vis-à-vis the collective but also acts as a protector and watchdog for all the other fundamental rights. Euripides knew it four centuries before Christ: “This is true liberty, when free-born men … may speak free…”.
Free speech is an enabler of a democratic order in five distinct ways: it serves as a safeguard against tyranny when it acts as a countervailing force against an authoritarian narrative of power; it facilitates majority rule by ensuring that all voices are aggregated; it ensures stability by allowing minority voices to be heard in a timely fashion; it serves the purpose of truth as it exposes our dominant ideas to a process of critical exposure and adjustment and thus saves us from the presumption of infallibility; and lastly it checks delinquent behaviour on the part of public figures.
On the contrary, muzzling free speech creates the twin problems of moral hazard and adverse selection. Absence of a robust independent media promotes rent-seeking behaviour amongst politicians and other power-wielders and thus sustains moral hazard. Likewise, suppression of the media’s ability to monitor and report lets intrinsically bad politicians and bureaucrats masquerade as good souls, hence promoting adverse selection.
Freedom of press is so constitutive in making democracies work for the people that Thomas Jefferson wrote to Edward Carrington, Virginia’s delegate to the Continental Congress: “The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter.”
As a society and generation, we have a choice to make. We can either continue to stifle freedom of conscience, opinion and speech and end up as an Orwellian state or we can do away with the infrastructure of censorship — coercive as well as non-coercive, visible as well as invisible — and strive for a pluralist democratic future. We cannot have censorship in our midst and still hope for a democratic future for our children and our children’s children.
The writer is a practitioner of design thinking in public policy.
Published in Dawn, September 21st, 2020