Curb on expression

Published March 16, 2023
The writer is a lawyer based in Lahore.
The writer is a lawyer based in Lahore.

IN ‘Whitney vs California’, 1927, justice Brandeis of the US supreme court said “… in … government, deliberative forces should prevail over the arbitrary; … freedom to think as you will and to speak as you think are means indispensable to the discovery … of political truth”.

Recently, Pemra, the electronic media regulator, imposed a blanket ban — subsequently suspended by the court — on broadcasting live or recorded speeches of former prime minister Imran Khan on all electronic media channels. The stipulated reason was that Khan was levelling unfounded allegations against state institutions and their officers, and thus, compromising state security.

Such blanket bans by Pemra on free speech have become the norm.

Blanket bans on expression are based on the obsolete ‘doctrine of prior restraint’. In 1501, Pope Alexander VI applied this doctrine as a tool to control publications promoting dissent. Prior restraint entails imposition of restrictions on expression in advance. Prior restraint is different from subsequent punishment, and blocks expression altogether. Conversely, subsequent punishment allows the expression but imposes a penalty after it.

Pemra has no right to impose blanket bans.

In England, under the Licensing Act, 1662, no one was allowed to print, sell or import any publication unless they were a licensee of the Stationers’ Company. In 1695, when this law expired, parliament refused to extend it. In the US in 1971, when the Pentagon Papers began appearing in the New York Times, the government attempted to prevent their publication on the pretext that divulging sensitive military information could threaten national security.

In ‘New York Times vs USA’, discarding the prior restraint principle, the supreme court held that “despite the sensitive nature of the information, the newspapers could still publish it”. Effectively, it allowed free expression to outweigh potential harm by holding that the government’s concerns were speculative.

In our constitutional parlance, Article 19 guarantees freedom of speech and expression. It provides that free speech is not absolute; rather the same can be curtailed by law through the imposition of reasonable restrictions. Our superior courts have held that the phrase ‘reasonable restrictions’connotes that limitation should not be arbitrary, excessive or disproportionate, and must reflect intelligent care and deliberation.

Incontro­vertibly, a prior blanket ban on mere anticipation can never pass the test of reasonability. Thus, the restrictions contemplated by Article 19 are not pre-emptive; rather they are consequential.

So, if any speech or expression falls within the ambit of the seven restrictions envisaged by Article 19, the authorities under the applicable law can (subsequently) take appropriate action. Such a situation was aptly summarised by the English judge William Blackstone: “Every free man has an undoubted right to lay what sentiments he pleases before the public … but if he publishes what is improper, mischievous or illegal, he must take the consequences of his own temerity.”

Another argument against the application of prior restraint is the inalienability of fundamental rights. Our jurisprudence is settled on the issue that the state’s power to regulate a fundamental right doesn’t mean it can completely eliminate or suspend it. A blanket ban suspends the enjoyment of a fundamental right.

Even otherwise, blanket bans based on anticipation are outside the scope of the Pemra Ordinance. Pemra issued the prohibition order under Section 27. The Islamabad High Court recently held that this section does not empower Pemra to impose a blanket ban on speech. Such prohibition orders also violate the fair trial injunction of Article 10-A of the Constitution. While interpreting this article, the Supreme Court held that where adverse action is contemplated against a person, he would have the right to be heard even if the statute governing his rights is silent on the provision of such hearing.

Pemra is an autonomous regulator. Its function is not to promote the interest of the powers that be. It must operate independently rather than functioning on the whims of either the government or ‘unknown’ elements. Dissent does not pose a danger to Pakistan’s security and all expressions, which do not find the approval of those exercising visible or invisible state power, can’t be deemed as detrimental to the state’s security. Pemra should not be guided by the principle of prior restraint and should not be allowed to pass arbitrary blanket orders motivated by extraneous considerations or subjective notions of state security. Regulatory bodies are guided by the rule of law, and not the rule of men.

The writer is a lawyer based in Lahore.

Published in Dawn, March 16th, 2023

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