An inconvenient freedom

Published August 11, 2022
The writer is a lawyer and columnist from Okara.
The writer is a lawyer and columnist from Okara.

THIS Monday, Pakistan’s media regulator took aim at one of its top news channels and pulled the trigger.

As of writing this, ARY News has reportedly been taken off air across the country. Representatives of the channel shared a copy of the show cause notice issued by the Pakis­tan Electronic Media Regulatory Authority (Pemra) setting out the reason: a guest on one of their programmes had “maligned the federal government”, with speech that was “hateful, seditious, and malicious”.

The contents of that programme are not relevant to this column, but the law is. More specifically, a question of law to be addressed if this country is to move forward — even if we presume absolute guilt, did Pemra act lawfully by silencing a media platform viewed by millions?

To address this, the first place to look is the language of the notice itself: “The statement made by the guest on ARY News is a violation of Article 19 of the Constitution … as well as PEMRA Laws”.

The legal recourse is to take the matter to court under the defamation law.

This sentence lays out the foundation for legal action, and even a cursory glance unravels its hollow nature. For a start, Article 19 deals with the fundamental right of freedom of speech. One would presume that Pemra is referring to one of the ‘reasonable restrictions’ set out in the article, which include the glory of Islam, national security, public order, friendly relations with foreign states, decency, and contempt of court.

The notice, however, does not mention which one (if any) of these restrictions were violated by allegedly maligning the federal government. Neither does it specify which portion of the ‘Pemra laws’ was violated. Ref­erence is made to Section 20 of the Pemra Ordinance 2002 (terms and conditions of lic­e­nce), without mentioning which precise term has been breached. The notice then threate­ns prosecution under Section 30, which grants the power to suspend or revoke a channel’s licence.

Interestingly, subsection (3) of that same section explicitly states that “except for reason of necessity in public interest”, a licence cannot be suspended or revoked without both reasonable notice and a personal hearing.

The fact that Pemra chose to invoke the exception in this clause means that it viewed the accusation of “maligning the federal government” to be so severe as to constitute a matter of “public interest”. This phrase is defined as the “welfare or well-being of the general public”. Are we to believe that we fall under such grave danger purely on account of words uttered against the government on a talk show?

Editorial: The action against Shahbaz Gill, ARY News has created an unnecessary mess

What all these vague applications and mental gymnastics of the law boil down to is simple — taking ARY News off air was a flagrant violation of the Constitution, Pemra’s own rules, and Pakistani citizens’ fundamental rights to freedom of speech (Article 19) and information (Article 19-A).

Still, some have endorsed the censorship based on the sins of the censored. Critics of the channel point to examples of bias. Regar­dless of their veracity, the productive respon­­se to speech in a democracy is more speech. Sunlight is the greatest disinfectant, and the means to deal with views you disagree with (even ones that are flat out wrong) is to confr­ont them, engage with them, and expose them to the unforgiving heat of public scrutiny.

For the state to instead attempt to make those views disappear is not just reflective of the philosophy of dictators, it’s hopelessly naïve. Trying to silence a media platform watched by large portions of the population will only strengthen its narrative among supporters and multiply its viewership in the long term.

Where then do we find the solution? The same place it’s always been. Within the law, and not an inch outside of it.

In the event of any defamation, the legal recour­­se is to take the matter to court under the Def­a­mation Ordi­na­n­­ce 2002. An exa­mple of a robust legal system for defamation is the UK, where news channels found guilty (including the subject of this column) have swiftly and consistently been held accountable through monetary damages, without compromising on freedom of speech. It’s up to the federal government (with a majority in parliament) to come up with legislative reforms that allow for robust systems like this to take root in Pakistan too.

Then why don’t they? Well, if you’re a federal government, the hassle-free luxuries of flouting due process are just so seductive. But I’m sorry to break it to you — if you’d prefer to silence journalists en masse and shut down whole media organisations every time you feel maligned, then there’s only one legal way to do so. Go to parliament, draft the ‘Fragile Emotions Protection Bill (2022)’, declare it illegal for anyone to be mean to you and your buddies, and while you’re at it, write the rest of your autocratic fantasies into law too.

Have fun dealing with the consequences later. But until that happens, you, like the rest of us, are bound by the existing laws of the land.

The writer is a lawyer and columnist from Okara.

Twitter: @hkwattoo1

Published in Dawn, August 11th, 2022

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