A draconian proposal

Published October 12, 2020
The writer is a barrister.
The writer is a barrister.

SPEECH is a shape-shifting creature, capable at once of both exquisite beauty and catastrophic destruction. Thus, rather than let it run amuck, we attempt our best to tame it, to temper its potential for harm. When speech fosters unkindness in our midst, we look down upon it, try to shame it into submission. When speech incites violence or crime or hatred, we go so far as to sanction its complete curtailment. And, when speech spreads falsehood, with malice aforethought, we shield ourselves behind the laws of defamation.

Last month, a private member’s bill was introduced in the National Assembly. Tabled by a PTI parliamentarian, it seeks to amend the Pakistan Penal Code with one tiny addition — Section 500A, which states that “whosoever intentionally ridicules, brings into disrepute or defames the Armed Forces of Pakistan or a member thereof” shall be punished with up to two years of imprisonment or a fine that may extend to half a million rupees, or both.

Legally, this is an outlandish proposition, replete with one red flag after another.

First and foremost, the bill is a poorly drafted piece of legislation. Laws, especially those of a penal character, must be made with the utmost clarity and precision, for here, where our conceptions of right and wrong are reduced into writing, backed by legal sanction no less, words carry great import, and the door to ambiguity, if left ajar, can have dangerous consequences.

One thing that stands out is the brazen attempt to create a bizarre and novel offence altogether — “intentional ridicule” of the army. This is a notion that defies both logic and common sense, since ridicule, far from being a criminal offence, is a potent component of free speech, used not only in everyday language, but also as a satirical device by all manner of creators, be they poets or novelists, cartoonists or comedians. To call for its criminalisation is to harken back to the age of shehanshahs, of monarchs with such infinite power that they could restrain the very tongues of their human subjects from marring their honour and majesty.

One thing that stands out is the brazen attempt to create a bizarre and novel offence altogether.

Of course, this is not to say that ridicule is entirely benign. Far from it in fact, since ridicule, be it through parody or caricature or mockery, has but one basic objective: the invocation of laughter. When used against the vulnerable, it is nothing but cruel and condemnable, but when employed against power and those who wield it, ridicule becomes a potent weapon — after all, nothing shatters the veneer of power so wholly and so completely as the simple act of laughter, and in the realm of realpolitik, what starts off as a snicker may one day morph into open revolt.

Second, the amendment is ill conceived. The true purpose behind making defamation an offence or an actionable claim is to protect the reputations of ‘persons’, and while the law extends this courtesy to various organisations that are vested with ‘legal personhood’ in its opinion, it cannot, as a matter of public policy, extend the same privilege to public institutions. These fall under a different breed of entities altogether, since their composition, their function, and their conduct are ultimately a reflection of the state itself.

Public institutions, like the armed forces, are extensions of the government, merely one of its many arms — they are not private entities with ‘reputations’ of their own to manage and protect. As citizens, we blindly entrust them with far-reaching authority and control. However, this power comes at a cost, for unlike people, who are deemed to be born with a right to a reputation of respect, the state and its institutions can make no such claim. Instead, they must consistently and transparently earn their reputation before our eyes, and for this to take place, they must be made subject to the fullest extent of free speech.

Besides, if we agree to the premise that the armed forces deserve to be protected by a tailor-made law of defamation, there shall remain no cogent or discernible reason as to why the same advantage should not then be extended to every other public institution that takes money from the public kitty — including the entire bureaucracy, the judiciary and of course, countless other authorities, agencies and regulatory bodies, from NAB to PTA and Wapda to Wasa. Any principle, if adopted, must be taken to its logical conclusion, and in this case, it would render the entire state machinery shrouded from open public criticism.

Having established that it is poor policy to allow the state and its entities to hide behind defamation laws, there can be only one solid justification for such an amendment — to protect the reputations of individual members of the armed forces. If this is indeed the intent, then the bill is redundant in the first place, since they, like any other citizen of the country, can already avail numerous remedies for their protection — like lodging an FIR under Sections 499 and 500 of the PPC, or filing a civil suit for damages, or even making a complaint under Peca.

Bills in this country are often subject to the strangest whims of fate, and so, only time will tell what will become of this one — perhaps it will be hotly debated and picked apart, perhaps it will be shelved and forgotten, only to collect dust till its eventual demise, or perhaps, it will find itself bulldozed through parliament one day, in some convenient atmosphere of political ‘one-pageism’.

In the meantime, let us simply hope that if and when it does come under scrutiny, those sitting in our legislature shall have the good sense and wisdom to dismiss this as exactly what it is — a draconian proposal.

The writer is a barrister.

Published in Dawn, October 12th, 2020

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