‘To remain silent is to die’: Asad Toor’s arrest, Peca and free speech

The FIA is blatantly disregarding the law by pressuring Toor to surrender his journalistic protections.
Published March 11, 2024

“If I speak, they will kill me, to remain silent is to die”

Do we, as the people of Pakistan, connect with the vision defined by the framers of our Constitution? Does this vision reside within our reality, or is it merely an academic ideal — an impractical philosophy for leisurely Sunday contemplation?

It can be safely argued that the infamous Army Public School attack of December 16, 2014, laid the very foundation of the Prevention of Electronic Crimes Act, 2016 (Peca). The severity and lethality of the attack, which left 149 people dead, amongst which 133 were children, had a massive impact on Pakistan’s anti-terror agenda.

An all-encompassing National Action Plan (NAP) was formulated, comprising 20 agenda items. Of these, agenda item number 11 (ban on glorification of terrorists and terrorist organisations through print and electronic media), and agenda item number 14 (measures against abuse of internet and social media for terrorism), may be characterised as catalysts behind the promulgation of Peca.

Given this historical background, evidently, the purpose of the said law was purely to prevent social media and digital space from being utilised by terrorist organisations and their symphyses, for promoting terrorism or other such activities falling within the definition of “terrorism”. At least, this was the narrative used by the state to silence the voice of those who preempted its misapplication and abuse, at the hands of the state.

Since its promulgation, Peca has claimed many victims, which include politicians, journalists, academics, activists, lawyers, political workers and members of the civil society. It did not spare anyone, not even those who professed their unvarying support and allegiance to it and defended its existence, without flinching.

On October 21, 2017, former prime minister Muhammad Nawaz Sharif — whose government had passed the law — took to X (formerly Twitter) protesting the arrest of social media activists and calling on the state to respect the fundamental right of free speech and expression. The very law which stifled freedom of expression, supported and introduced in the parliament by his own government, was being criticised by him; such is the irony.

Yet another victim

Yet again, Peca has claimed another victim. A renowned journalist and vlogger, popular for expressing his opinion in the most uninhibited and unorthodox form, Asad Ali Toor, is in the captivity of the Federal Investigation Agency (FIA).

It appears that Toor’s crime was so vile and unforgiving that the court did not even hesitate in granting a five-day physical remand to the FIA, which was subsequently extended for three days on March 3, and further extended for another two days on March 6. What crime you ask? The heinous crime of exercising his fundamental right, as guaranteed by Article 19 of the Constitution of the Islamic Republic of Pakistan, to freedom of speech and expression.

He had, through multiple vlogs, called into question the purported illegal transgressions of members belonging to government institutions, whose role is defined under the Constitution. He opined that the parameters envisaged in Article 245 of the Constitution should be vehemently observed and no actions or initiatives should be undertaken which would vitiate the mandate prescribed in the said Article.

Toor had also vehemently criticised the judgement passed by the Supreme Court, in which it had denied the PTI its election symbol, on the pretext that the judgment passed by courts was public property and could be subjected to criticism.

It is not that Toor was not participating in the inquiry, hence, warranting his arrest. Far from it, after being served with a notice, Toor appeared in person before the FIA’s Cyber Crime Wing, on Feb 23. He was interrogated for hours in connection to an inquiry relating to a “malicious” campaign against the judiciary.

On Feb 24, the journalist was served yet another notice, directing him to appear again on Feb 26, which Toor did. Some four hours later, his legal counsels were informed by an FIA official, carrying a letter in one hand and Toor’s car keys in another, that he had been formally arrested. The said letter was addressed to his legal counsel, Imaan Zainab Mazari, through which he requested that his 78-year-old mother be dropped at his relative’s house.

The next day, Toor was presented before the designated judicial magistrate, charged with the offence of Section 9 (glorification of an offence), 10 (cyber terrorism) and 24 (legal recognition of offences committed in relation to information system) of Peca. The first information report (FIR) dated Feb 26, which was presented in court along with an application for a 10-day physical remand, did not even remotely mention the inquiry proceedings or that Toor had been allegedly involved in any campaign against members of the superior judiciary.

The glaring omission to adequately and properly consider the presence of an alternative penalty to imprisonment, in the form of imposition of fine(s), as stipulated under sections 9, 10, 12 and 24 Peca, is basal to the court’s decision in granting a five-day physical remand, and its subsequent extensions, to the FIA.

Right to liberty

Toor’s current detainment, resulting in the blatant and unwarranted curtailment of his right to liberty, is not possibly compensable by the state. The right to liberty is cardinal and elementary to the principles of every democracy. It is for these reasons that the Islamabad High Court (IHC) has repeatedly granted bail in similar cases, whereas, the Peshawar High Court (PHC) has previously held that in cases where sections 9, 10, 12 or 24 of Peca are invoked, bail shall be granted to the accused as a matter of right.

Even otherwise, courts have been considerate of the fact that the requisite mens rea (criminal intent) of the accused, alleged to have committed such offences, is rarely ever discernible.

Moreover, the language incorporated and employed in the concerned provisions has been criticised for being vague and ambiguous, thus rendering the offences laid out more cumbersome to prove. Only a proper trial and arguments can lead to effective and fair adjudication of such allegations, not physical remand or absolute abdication of the accused’s fundamental right to liberty — not for five days, not for 10.

It is not surprising why when an offence under these provisions is alleged and the accused are consequently detained, it appears to be a culmination of arbitrary and whimsical abuse of the law which has time and again been manifested by authorities at their earliest temptation, whenever their conduct has been subjected to castigation by the public.

Perhaps, the most disturbing aspect of the decisions rendered by the court was the fact that the aforementioned application, in unequivocal terms, disclosed the very purpose for which the remand was being sought. The FIA is adamant about accessing Toor’s electronic devices and social media handles, i.e. access to his journalistic sources.

Journalistic protections

At this point, it must be highlighted that the Protection of Journalists and Media Professionals Act, 2021 (Protection Act), inspired by Article 19 of the Constitution and international law, was enacted by the Parliament, underscoring the state’s responsibility to safeguard freedom of expression.

This includes the right to seek, receive and impart information of all kinds, regardless of borders and the right to privacy and non-disclosure of sources. This legislation recognises the democratic imperative to foster a safe and independent environment for journalists, especially in light of targeted attacks on media professionals.

Furthermore, Section 4 (right to privacy and non-disclosure of sources) of the law explicitly protects journalists’ right to privacy and the confidentiality of their sources. Yet, the FIA is blatantly disregarding the law by pressuring Toor to surrender these protections.

Ironically, while the federal government was required to constitute an independent commission under section 12 (establishment of a commission for the protection of journalists and media professions) of the Protection Act — which was to be known as the Commission for the Protection of Journalist and Media Professionals (CPJMP) — for the purposes of ensuring the enforcement of the Protection Act, no such commission has been constituted so far. This omission is reflective of authorities’ hesitation to play an active role in enforcing journalistic protection.

The state compelling journalists like Toor to reveal their sources is not only an abuse of law and power in the domestic realm but also a grave violation of Pakistan’s international obligations towards journalists. Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which has been ratified by Pakistan, confers the right to freedom of expression to citizens of member states which includes “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”.

However, it is imperative to appreciate that journalistic protection is not absolute in nature. Article 19 (3) permits states to restrict this protection for the respect of the rights and reputation of others or for safeguarding national security, public order, public health or morals. Therefore, while international law recognises the importance of journalistic protection, it also hinders journalists from abusing this right by introducing a balance of proportionality.

Nonetheless, the UNHRC, in the Initial Report of Kuwait in 1999, disagreed with Kuwait’s assertion that freedom of speech and expression does not safeguard statements made against the head of the state, or the heads of other states. Rather, the committee concluded that compelling journalists to reveal their sources in order to evidence good faith behind a report is not only a violation of Article 19 of the ICCPR but also other provisions vis-à-vis respect to the presumption of innocence.

The committee, therefore, has crystallised that an invocation of the aforementioned grounds laid out in the law, in order to restrict journalistic protection, is not a trivial endeavour and is dealt with stringently.

Moreover, this was also endorsed by the Committee in Bodrožić v. Serbia and Montenegro where it stated that if the subject of a journalist’s report is a “prominent public and political figure” then a restriction on journalistic protection, on grounds of the reputation of officials, will be cumbersome to impose. In the bargain, Principle 30 of the Siracusa Principles has prohibited the invocation of national security as a ground for imposing limitations on Article 19 when “merely local or relatively isolated threats to law and order” are at play.

Stepping out of constitutional limits

Drawing from the aforementioned provisions, the UNHRC’s comments and international case law, it is evident that Toor expressing his opinion against powerful institutions and government officials does not mandate a restriction on his journalistic protection, in light of their public nature, and criticising them for stepping out of their constitutional limits does not compromise national security.

The same has also been endorsed by the European Court of Human Rights’ judgement, in Tillack v. Belgium, where it safeguarded a journalist’s journalistic protection when the police confiscated files and newsgathering materials possessed by the journalist with the aim of ascertaining their source for reporting on the activities of European Union officials.

The uninhibited treatment accorded to Toor is not mandated by law, but rather a product of personal offence taken on by those whom the journalist has bravely called out by exercising his rights.

Abusers of the aforementioned domestic and international law have been targeting journalists to silence the public; therefore, this contentious issue is not merely about journalists like Toor but about the Pakistani public at large.

The former chief justice of the IHC, Justice Athar Minallah, rightfully observed that “if liberty means anything at all, it means the right to tell people what they do not want to hear” which begs the question: Are Pakistanis actually free?

This piece is dedicated to all those brave journalists who are committed to their values and, unfortunately, face the real threat of persecution. It seems that Zahoor Hussain Zahoor is expressing what journalists might be feeling in the prevailing circumstances, particularly Asad Toor at this very moment.

He says: “On whose door shall I knock, carrying the corpse of thought, If I speak, they will kill me, to remain silent is to die. Silently swallowing my tears, I endured the ridicule of the world searching for my destination, I walk into the dark night, all alone Striving, I may not reach the end, but it will be closer, If I speak they will kill me, to remain silent is to die.”

سوچاں دی میت چا کے ، ہُن میں کیڑے گھر جاواں گا جے بولاں تے مار دِین گے ، نہ بولاں تے مر جاواں گا چپ چپیتے اتھرو پیتے ، مینے جگ دے پا کے پلے رات ہناری کلؔم کلے ، ٹُر یا جانڑاں منزل ولّے پاویں سارا پینڈا نہ سہی ، کُج نہ کٗج تے کر جاواں گا جے بولاں تے مار دیِن گے ، نہ بولاں تے مر جاواں گا ~ ظہور حسن ظہور