George Washington famously stated that ‘if freedom of speech is taken away, then dumb and silent we will be led, like sheep to the slaughter’.
After the pronouncement of the judgement by the Supreme Court in the “Bat-Symbol case”, the Federal Government wasted no time in constituting a Joint Investigation Team in terms of Section 30 of the Prevention of Electronic Crimes Act 2016, to investigate the alleged social media campaign to malign the image of Judges of the Supreme Court. Since then, various journalists have been sent enquiry notices under Section 160 of the Code of Criminal Procedure 1898 to appear before the JIT. Since then, journalists have been arrested. Some, like Asad Toor, not for the first time.
These incidents of arrest of journalists and curtailment of freedom of speech are neither new nor isolated events. Suppression of speech and expression, Reporters without Borders note, has persisted in Pakistan since its founding– brutalities have been committed against journalists; journalists have been killed; abducted; there has been censorship by the State; biassed or lack of reporting due to fear of being harmed and so on.
The impunity with which journalists and critics alike have been silenced throughout our history is mortifying. Many journalists, such as Bilal Farooqi, former Chairman PEMRA Absar Alam and Ehtisham Kiyani, to name a few, have faced the wrath of such crackdowns in the past. Back then, this crackdown was halted by the Islamabad High Court. One such case was that of Shahid Akbar Abbasi, wherein it was observed that ‘Many journalists have been killed in the line of duty in the past decade and were targeted for exposing the truth’ and that the ‘involvement of the State and its functionaries in crimes committed against a journalist extends the infringement to the fundamental rights of the public-at-large guaranteed under Articles 19 and 19-A of the Constitution’.
It may be observed through examination of existing laws that there appears to be a disconcerting misalignment between the actions of the JIT and the legal mandate it is supposed to uphold, in addition to, the Protection of Journalists and Media Professionals Act 2021 not being implemented.
To this end, the JIT, as per the law, can only be constituted for the sole purpose of ‘investigation of an offence under this Act’. There is no provision of PECA which, either directly or otherwise, makes criticism of Judges an offence. Thus, the very foundation is erroneous.
Proponents of the JIT’s actions and supporters of the curtailment and demise of freedom of speech point towards provisions of PECA, which pertain to “Offence against the natural dignity of a natural person”. However, these provisions are not applicable for a few reasons. Firstly, according to Section 43 of PECA, most of such offences are “non-cognizable”, consequently, no FIR can be registered. Secondly, as held in Masood ur Rehman Abbasi case where an FIR got registered with the FIA for offence, inter alia, under Section 20 of PECA at the behest of a private person on allegations that ‘Petitioner criticised the Hon’ble Chief Justice of Pakistan using strong and undesirable language’. Justice Athar Minallah questioned the locus standi of the complainant to file a complaint on behalf another person and held that provisions of PECA are person-specific. In other words, only the person so aggrieved can have a crime report registered, not the State itself. In the same Judgement, Justice Athar further opined that ‘A judge is not immune from being criticised. The judiciary, because of the nature of functions assigned to it under the Constitution and the lofty position it enjoys in the society, is open to criticism. The independence of a judge is not affected in any manner because of public criticism’. Thirdly, the JIT would require obtaining an order from a competent Court to investigate these offences as per Rule 7(5) of the Prevention of Electronic Crimes Rules 2018 (‘PECR’). Neither seems to be the case here.
Furthermore, in Muhammad Shafique Butt’s case where an FIR was registered against a person for allegations against a Judge, the Court while granting bail noted that the ‘Contempt of Court Ordinance … has been exclusively left to the courts to convict/punish an alleged contemnor for maligning, ridiculing or bringing into disrepute the courts or a judge’. If the Judges of the Supreme Court are personally aggrieved, they themselves could invoke jurisdiction under the Contempt of Court Ordinance, however, their reluctance to do so thus far lends credence that this is not a question of the dignity of the Judges or anyone else, it’s a sham under the guise of “protecting the dignity” to deceive the masses, a mere manipulation of words, the same old trick by new faces. To curtail freedom of speech and media at all costs! Because once the watchdog with the ability to disseminate information and disclose the truth to the masses to hold the State and its corrupt institutions accountable is silenced, there would lie a brave new world.
Fundamentally, the constitution of the JIT and the subsequent notices and arrests of journalists only raises serious questions about the abuse of the process of the law along with ulterior motives of those at the helm, presenting a troubling encroachment on freedom of speech and expression. This practice of selectively using legal provisions or misconstruing the legal provisions for self-fulfilling prophecies is abominable. The disease of this ridiculous precedent, where criticism is met with coercive action, ought to be set at naught by all stakeholders once and for all, because part of upholding democracy, freedom of speech and expression must be vigilantly safeguarded, ensuring that legitimate criticism remains protected and part of public discourse.
The legal framework for protection of journalists needs to be revisited. The crude history of the Journalist Protection Laws, the Bill of which was tabled in Parliament after two journalists were killed in the line of duty, subsequent silence for 7 years by the parliamentarians and only after the Islamabad High Court and Supreme Court took cognizance, a half-hearted Act came into existence. Even after being promulgated, with the intent to put an end to such atrocities, the Act has, till date, never been implemented.
Being an Islamic country, to speak the truth is an obligation. A statement with which Justice Qazi Faez Isa concurred in SMC No. 4 of 2021 (2021 SCMR 1602) while stating that ‘Propagating the truth is an obligation stipulated in the Holy Qur’an. The Prophet (peace and blessing be upon him) stated that to speak against injustices and tyranny constitutes jihad-e-akbar, the greater jihad’.
Fundamentally, the constitution of the JIT and the subsequent notices and arrests of journalists only raises serious questions about the abuse of the process of the law along with ulterior motives of those at the helm, presenting a troubling encroachment on freedom of speech and expression. This practice of selectively using legal provisions or misconstruing the legal provisions for self-fulfilling prophecies is abominable. The disease of this ridiculous precedent, where criticism is met with coercive action, ought to be set at naught by all stakeholders once and for all, because part of upholding democracy, freedom of speech and expression must be vigilantly safeguarded, ensuring that legitimate criticism remains protected and part of public discourse.
