Wide open to abuse

JOURNALISTS and their supporters have been protesting against the curbs the government had imposed on the electronic media through a directive issued by the Pakistan Electronic Media Regulatory Authority (Pemra) on June 1. The critics objected that the restrictions would jeopardise the citizen’s fundamental rights (such as freedom of expression, association, assembly, movement) guaranteed to him by the Constitution.

The Pemra directive to the private television channels asks them not to telecast the following: (1) any programme that encourages violence and disruption of law and order, or promotes anti-national or anti-state attitudes; (2) amounts to contempt of court; (3) casts aspersions against the judiciary or the armed forces; (4) slanders any person or group; (5) undermines the country’s basic cultural values, morality and good manners.

None of these restrictions is new. Incitement to disaffection with the state, hatred or contempt for the government, violence or disruption of public order, and slander has always been forbidden by laws already on the statute book. Honour of the judiciary and the armed forces, and morality, are covered by the Constitution. Pemra’s concern with our cultural values and “good manners” may be a new addition to the existing list of prohibitions.

The objection that Pemra’s restrictions violate constitutionally guaranteed fundamental rights is not valid. Let us look at the first amendment to the American constitution to see how rights are made secure and inviolable. It says: “Congress shall make no law abridging the freedom of speech, or the press, or the right of the people peaceably to assemble.” The conferment of these freedoms and rights is unequivocal. It is, of course, understood that a person will not exercise his rights in a manner that infringes upon the equal rights of another. As Mr Justice Oliver Wendell Holmes of the US Supreme Court once observed, freedom of speech does not include the right to shout “Fire” in a crowded theatre (as a result of which many people may get killed in the ensuing stampede).

It is not the same with the fundamental rights listed in our Constitution. The rights and freedoms allowed may all be restricted by law on one or more of the following grounds: public interest, public order, national sovereignty and integrity, the country’s external relations, morality, decency, and the glory of Islam. (Articles 10, 14-17, 19-20 and 23) It may be noted that similar restrictions were included in the 1956 Constitution, and they will also be found in the relevant chapter in the Indian constitution. They would seem to have been a carryover of the stern pre-independence official outlook on rights and freedoms.

The restrictions listed in the Pemra directive and those contained in the Constitution are open to the same objection. In both cases they are vague, unspecific, open to varying interpretations, and therefore open to arbitrary application and abuse. Let us take the grounds for some of them for further discussion, and add the “glory of Islam” to the list, which is specifically mentioned in the Constitution, but it is implicit in the directive as well.

Our first thought is likely to be that incitement to violence is wrong. Most of us will condemn a preacher who urges his followers to bomb the mosque of a rival sect because, in his view, some of its beliefs and practices are heretical. But I am not sure if it will be right for us or Pemra to ask the media not to show the resulting destruction of life and property. Then there is the case of violence done on behalf of a popular cause: let us say by a crowd that is outraged by the Danish cartoons portraying the Prophet (PBUH) in an unflattering posture. Will Pemra ask the media not to cover the protest? My hunch is that it will stay quiet and put.

Some of the participants in rallies and processions, organised to protest against some government policy or action, block roads, burn automobiles, and plunder stores, all of which amounts to disruption of public order. But surely it cannot be said that the electronic media should not telecast such events.

Statements and actions prejudicial to the public interest or the state’s integrity are likewise difficult to handle, because Pemra’s terms of reference are ambiguous. There will be general agreement that access to education, healthcare, potable water, expansion of employment opportunities and measures to control inflation are important elements in any sensible exposition of the public interest. But it is not the same with many other matters. General Musharraf and his supporters, for instance, maintain that his continuance in office for a second term is very much in our public interest. But the opposition parties are unanimous in the view that his continuance will be most detrimental to the public interest.

Advocacies of converting Pakistan into a confederation are considered by many of us as recipes for disrupting the state as it is now constituted and creating a new one, which is bound to fall apart soon after its creation. But Mr Mumtaz Bhutto, who is the principal proponent of a confederal Pakistan, and his cohorts among Sindhi and Baloch nationalists, believe that theirs is the only way of preserving Pakistan as a political entity. It would be wrong on Pemra’s part to insist that the media should not reveal the specifics of the controversy over this issue to the people of Pakistan.

Concern with “morality” and “good manners” as ground for restricting media coverage is even more tricky. It is relatively easy to know what is unlawful, because that is spelled out in the statute books. But that which is immoral is not equally clear. In our culture sexual relationships out of wedlock are indisputably immoral, in spite of the possibility that some of the uninvolved parties may condone them. A young man and a young woman in a village, who are attracted to each other and meet covertly, are seen talking together. Their meeting will probably be considered as something dishonourable, and they may be put to death.

But scores of young men and women on university campuses all over the country, who are attracted to each other, sit down together, have tea, chat, and may even hold hands, and nobody protests. Movies and television plays show romantic relationships, including physical touch, all the time, and nobody other than the Taliban and the likes of them objects. I agree that the media should not telecast programmes that encourage or justify sexual waywardness, but it is hard to know what else Pemra can ask them to avoid. Its reference to “good morals” as a ground for restricting media coverage is neither here nor there, without specific meaning, much too frivolous to be placed in a legal instrument, and therefore undeserving of further consideration and comment.

I would now like to take on the matter of “basic” cultural values the safeguarding of which is one of Pemra’s concerns. We have several values that derive from religion, but they have not become an operational part of our culture, and I shall leave them alone. Of those which are essentially home grown I should like to mention a few. These are: personal honour, loyalty to family and friends, deference for age, care of parents, regard for neighbours. Of the professed values that may be operational only on a selective basis one may mention truth, justice, honesty, generosity and solicitude for the poor, self-denial, humility, dedication to duty, hard work.

In my reckoning a commitment to truth, honesty, justice, and dedication to duty should be among the constituent elements in a viable concept of personal honour. In the Pakistani culture, however, honour relates mainly to the chastity of one’s women and, secondly, to issues of status. A man’s honour will be lost not only if his sister marries a young man of her own choosing without involving her family, but also if he does not put up a “good show” in performing the various ceremonies connected with his daughter’s wedding. He must keep up with the Joneses even if he has to mortgage his home or land to do it.

Commitment to truth, justice, honesty, and dedication to duty is weak in our culture. Family, friends, and others will not forsake a man because he takes bribes. Indeed, I have heard from numerous sources that of late more and more young men, who have emerged successful in the competitive examinations for the central superior services, tend to opt for the departments of police, income tax, and customs, in preference to other postings (including those in the district management group or its current successor), because the possibilities of income from graft are much greater in the former.

Telling lies is something that a great many of our people do routinely without giving it a second thought. This inclination is not limited to conversation in a light vein or trivial situations. Regretfully may one note the well-documented fact that much of the testimony offered by both the prosecution and the defence in court cases is fabricated.

It is not clear how Pemra can safeguard even the desirable among our “basic” cultural values. Will it, for instance, forbid media coverage of the extravaganza accompanying the weddings of the sons and daughters of ministers, high-ranking politicians and civil servants? I doubt it. Will it direct the media not to talk of public officials who go to work late, leave early, entertain friends during office hours, and get away with all of it? I don’t think so, for its own officers may be doing the same.

In sum, it may be said that if restrictions on the citizen’s rights and freedoms are to have any justification at all, if they are to be “reasonable” and therefore viable, and if they are not to be open to flagrant abuse, they must be made specific and their scope strictly defined. This, regretfully, neither the Constitution nor the Pemra directive does.

The writer is professor emeritus of political science at the University of Massachusetts at Amherst, US.
Email: anwarsyed@cox.net

A formula for fair elections

JUST as belief was gaining ground that the prime minister might soon advise the president to dissolve the National Assembly and call new elections, General Musharraf has been quick to announce that there would be no change either in the scheme or in the schedule of elections.

He seems to have assumed that the advice of the prime minister, which in this case would be binding on him, couldn’t be to the contrary.

Further, just as the general feeling was growing that the reference against the Chief Justice might be withdrawn, the law minister has announced that the government in fact is contemplating yet another reference against him.

Gloating over the success of their campaign and the depression in government circles, the politicians and lawyers might be expecting a harried Musharraf to do something either to appease them or to cause a split in their ranks. He has done neither. The triumphant marches on the streets and forceful legal challenge in the courts seems to have made Musharraf’s exultant opponents forget that he may be in politics but essentially he remains a commando. He will choose his own time and tactics to strike back.

So, when the lawyers and politicians thought that in his predicament he would seek a compromise, the president decided to take them on a long haul to wear them out. The message thus conveyed to the legal community is that the charges against the Chief Justice will be pursued until he is disqualified or gives in – whatever the cost or stress.

Any hope that his political opponents, and even some well-wishers and the Americans, might have been entertaining that the polls for the national and provincial assemblies may be held before the election of the president, must be fading away with an emphatic repetition of his known position that the present assemblies will elect him as president, and that too in uniform, before they go into dissolution.

It is now up to the lawyers and politicians, together or separately, to decide whether they can sustain and build up their public protest to a pitch where civic and economic life in the country is paralysed just as it was in 1977 against Z.A. Bhutto.

If they come to the conclusion that they can, the point for them to ponder is whether Musharraf would quit to make way for his constitutional successor Mohammadmian Soomro or, as it happened in 1999 and before that in 1977 and 1968, whether the army would take over amid chaos to the relief of the people. Thus would start yet another, may be longer, era of army rule punctuated by assurances that elections will be held as soon as possible after order in restored and public life is purged of corrupt and subversive elements.The hope for the current crisis to end in constitutional succession must not, however, fade away. But going by the support that the army’s top brass has publicly extended to Musharraf in pursuing his policies and plans the likelihood is that the familiar cycle of the past will be repeated. At its end, after another 10 years or less if we are lucky, provincial autonomy and parliament, the judiciary and bureaucracy, local government and every other institution, indeed the army itself, will all emerge diminished and demoralised.

Would it be a safer bet to rely on Musharraf’s assurance that once he himself gets elected he will ensure that elections to the assemblies are held on time and are free and fair rather than to press on with public protest and risk another round of military rule? This is the question that not his detractors alone but the institutions of the state and the people as a whole must seriously contemplate before taking the plunge either way.

Going by the manner in which the referendum and elections, especially by-elections, have been conducted in Musharraf’s eight years, it would be naïve to entertain such a hope if Musharraf were to keep relying on the present combination of diverse and shifty political elements to sustain him in office for another five years. Most of them just would not be able to find their way to the new assemblies without rigging.

Plainly speaking, the elections cannot be free nor representative of public opinion if Benazir Bhutto and Nawaz Sharif are not allowed to return, campaign and contest. It should be equally obvious that Musharraf will not let them if the assemblies dominated by the parties led by either or both of them vote to withdraw all the powers that he had acquired through the Seventeenth Amendment and may even go a step further and impeach him.

Cutting a deal with either or both of them is, thus, a condition precedent to fair elections with a large voter turnout. The PPP is all but ready for it. Such a deal, however, will almost certainly result in the demise of the Q League. Nemesis, or retributive justice, is the central and permanent feature of Pakistan’s uncertain and unprincipled politics. It can be delayed but not avoided. All politicians have to suffer its brunt in turn. While one lot is poised to return to power another must line up for a sojourn abroad.

Musharraf should no longer feel held hostage to the assorted malcontents, defectors, cronies and clerics. They never had it so good for themselves as they have been given more money and power than ever before to help their constituents. If they still cannot get elected Musharraf should not feel compelled to rig the polls for them.

In any case, the parliament that comes into being through rigged polls will not last, only a fairly and broadly elected one will. The general election that follows Musharraf’s own by the present assemblies will be inevitably marred by low turn-out, rigging, boycotts and turbulence.

To make polls to the new assemblies fair, credible and peaceful even after Musharraf stands installed as president the following arrangement may work. The present assemblies should be dissolved and an interim government formed. All parties (not alliances) who participated in the general elections of 1988, 1990, 1993, 1999 and 2002 should be invited to nominate ministers to the caretaker cabinet in proportion to the votes they polled. A minimum of five per cent average for all five elections should fetch one ministry. A party with an average of 20 would get four.

The ministers thus nominated should, by majority vote, choose a prime minister who is of national stature but not involved in politics. The cabinet should then select the chief election commissioner and members of the election commission from amongst those who are eligible under the Constitution.

The provincial cabinets similarly constituted should appoint administrators in districts from among the public servants to supervise the polling arrangements and maintain law and order. The nazims who are all political and feel indebted to Musharraf should be laid off till the new government is formed.

The risks inherent in a long campaign to drive Musharraf out by force and the rigging of elections held with him in office as president for five more years both will be avoided if some such arrangement is agreed between the government and the opposition.