Democratic breakdown

Published May 25, 2024
The writer is a lawyer
The writer is a lawyer

“A state which dwarfs its men in order that they may be more docile instruments in its hands, even for beneficial purposes, will find that with small men no great thing can really be accomplished.” — John Stuart Mill

AFTER blocking social media platforms like X, the state appears to have turned its attention to silencing dissent on other platforms. The hastily passed Punjab Defamation Act, 2024, is the latest in a series of measures curtailing free speech under the pretext of obviating the dissemination of fake news. Does the Act merely address the infirmities underpinning the Defamation Ordinance, 2002, or is it an attempt to muzzle dissent?

Section 8 of the Act establishes tribunals which may comprise non-judicial members appointed by the executive in consultation with the Lahore High Court chief justice. The tenure of such members shall be renewable every 18 months, subject to their performance being satisfactory. Section 8(6) delineates three-pronged criteria to gauge a member’s performance, with 50 per cent marks reserved for adhering to statutory timelines, and 25pc each for competence and integrity.

By placing adherence to statutory timelines on a higher pedestal than competence and integrity, the Act allows a member to pass muster even where his judgements are egregiously unlawful or motivated by extraneous factors.

While trials emanating from the 2002 Ordinance were admittedly marred by delays, the Act’s sole focus on swift disposal without addressing the structural issues contributing to such delays chips away the right to due process and fair trial. Section 23, for instance, excludes the application of the Qanoon-i-Shahadat to proceedings under the Act. Similarly, while claims involving defamation often require voluminous evidence, cross-examination, and a deeper appreciation of the facts asserted by each side, the Act envisages summary proceedings.

With the weightage assigned to adherence to statutory timelines, and given the summary proceedings it envisions, the Act emboldens the tribunals’ members to give short shrift to the principles of due process and procedural fairness, which constitute the cornerstone of any democratic dispensation.

Punjab’s Defamation Act forms part of a series of actions symbolising the breakdown of our democracy.

Such concerns are also aggravated by Section 26 which provides that the high court may only suspend the operation of a tribunal’s decision or stay its execution after the aggrieved party deposits an amount equivalent to the tribunal’s decree with the high court’s registrar. While courts have frequently deprecated placing conditions which stifle litigants’ right to appeal, the Act compels aggrieved parties to comply with the tribunal’s decision before seeking its suspension by an appellate court, even where such decision is bereft of any sound reasoning.

Most disconcertingly perhaps, the Act shields constitutional office holders from legitimate critique. The Act’s ‘Statement of Objects’ state that defamation “damages the reputation and image of public figures or the government”. While the Act creates tribunals for claims instituted by the general public, constitutional office holders can directly invoke the high court’s jurisdiction, thus, implying that holders of constitutional offices require more protection than the general public.

The Act, thus, departs from principles entrenched in other jurisdictions where public office holders have to meet a higher threshold to prevail in a claim of defamation since they voluntarily place themselves in positions where their actions may be subjected to heightened scrutiny. Moreover, public office holders often have much greater access to the media than average citizens and can use their access to the media to rebut any defamatory statements without assistance from the courts.

Third, such jurisdictions recognise the importance of allowing citizens to critique policies that deeply affect them and are thus wary of encroaching upon the right to democratic expression through incessant defamation suits.

Following the decision of its supreme court in the New York Times case, for instance, courts in the United States have often held that public officials could only seek damages for defamation if the publisher knew that the information was wholly and patently false or that it was published “with reckless disregard of whether it was false or not”. Nonetheless, the Act, by affording greater protection to constitutional office holders, creates a chilling effect whereby legitimate critique of the government’s policy is muzzled with citizens fearing protracted litigation by those who wield power.

In their seminal work on democratic backslide Levitsky and Ziblatt argued that constitutional protections only endure in a polity characterised by mutual toleration and institutional forbearance. Mutual toleration entails accepting each other’s legitimate mandate and respecting differing political opinions without attacking the patriotism of those we disagree with. Institutional forbearance, on the other hand, demands that each institution adheres to its jurisdictional fetters, cautioning particularly against ‘constitutional hardball’, or using institutional prerogatives unabashedly.

Today, the spirit of mutual tolerance witnessed during the signing of the Charter of Democracy or the restoration of democracy in 2008 appears to be submerged amidst political forces endeavouring to assail each other’s legitimacy. Contempora­neously, parliamentarians have launched scathing attacks on judges who have unruffled feathers, agents of the executive have been accused of attempts to emasculate the judiciary, and rumours about a constitutional amendment tinkering with the retirement age of judges of the Supreme Court remain rife. The Act, thus, forms part of a series of actions symbolising the breakdown of our democracy. Where then do we go from here?

The path to our salvation lies in political parties, the judiciary, and critically the security establishment coming together and acknowledging the follies which have brought us to this juncture. Political parties in particular need to preserve the democratic structures, which are critical to their own survival.

Will our ruling elites shun short-term opportunism in the interest of their own longevity, or will they continue to ingratiate themselves with the actual custodians of power? Will we ever learn from history?

The writer is a lawyer.

X: @MoizBaig26

Published in Dawn, May 25th, 2024

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