“If you’re in favor of freedom of speech, that means you’re in favor of freedom of speech precisely for views you despise.” ― Noam Chomsky, linguist and social critic.
Following the blocking of social media platforms like Twitter, it seems that the state is now focusing on suppressing opposition voices on other platforms. Recently passed with haste, the Punjab Defamation Act of 2024 adds to a string of restrictions imposed upon free speech under false pretenses aimed at preventing fake news dissemination. Is the act simply addressing issues present in the previous Defamation Ordinance from 2002 or rather intended to stifle dissent?
Section 8 of the Act sets up tribunals that can consist of non-judicial personnel selected by the executive in consultation with the Lahore High Court’s Chief Judge. These members’ positions are renewable every 18 months, conditioned on their satisfactory job performance. Section 8(6) outlines a three-part standard for evaluating a member’s success; fulfillment of statutory deadlines accounts for half (50%) while ability and integrity each make up one quarter (25%).
The Act prioritizes adherence to statutory timelines over competence and integrity, enabling a member to be considered acceptable despite making judgments that are blatantly illegal or influenced by factors beyond their control.
Although the trials resulting from the 2002 Ordinance suffered setbacks due to delays, prioritizing expeditious disposals under the Act disregards underlying systemic issues that infringe on one’s right to fair trial and due process. This is evident in Section 23, which eliminates Qanoon-i-Shahadat for proceedings under this law. Additionally, defamation claims necessitate considerable evidence gathering and cross-examination for a more comprehensive understanding of each party’s assertions- but summary proceedings are envisioned by this legislation.
The Act prioritizes compliance with legal timeframes, granting tribunals the authority to disregard fundamental principles of due process and procedural fairness – pillars essential to any democratic system. The Defamation Act in Punjab represents one of many actions that showcase the weakening state of democracy. Section 26 exacerbates these concerns by mandating that in order for the high court to suspend a tribunal’s decision or stay its execution, the aggrieved party must deposit an amount equivalent to the tribunal’s decree with the registrar of said court. This provision goes against judicial practices that denounce placing conditions which restrict individuals’ right to appeal. The Act forces those who feel wronged by such decisions – even if they lack any valid justification –to obey them before proceeding with their suspension through an appellate court.
Perhaps the most unsettling aspect of this Act is that it provides protection to constitutional office holders from valid criticism. The purpose outlined in the “Statement of Objects” suggests that defamation can harm the reputation and image of public officials or government entities. Although tribunals are established for claims brought by ordinary citizens, individuals holding constitutional offices have unique access to high court jurisdiction, implying a greater need for protection than regular citizens.
The Act differs from other regions’ principles regarding defamation claims against public officials as they place themselves in positions open to close scrutiny. In those jurisdictions, such officeholders face a higher standard for their claim of defamation compared to the current state since they have greater media access and can independently refute any false accusations without court intervention.
Thirdly, these jurisdictions acknowledge the significance of enabling citizens to criticize policies that significantly impact them. Therefore, they are cautious about infringing upon their right to democratic expression by filing excessive defamation lawsuits. After the supreme court ruling in the New York Times case, US courts frequently ruled that public officials could only sue for defamation if publishers knowingly published false information or did so with “reckless disregard” of its truthfulness. However, this Act gives constitutional office holders even greater protection and has a chilling effect on citizens’ ability to criticize government policies out of fear of being dragged into prolonged legal battles by those in power.
Levitsky and Ziblatt’s influential analysis of democratic regression posited that constitutional safeguards can only be maintained in a society marked by mutual respect and institutional restraint. Mutual respect necessitates acknowledging the legitimacy of opposing mandates, while refraining from impugning the patriotism of those with differing political views. Institutional restraint, on the other hand, calls for strict adherence to jurisdictional boundaries by all institutions – particularly caution against “constitutional hardball” or wanton use of institutional prerogatives.
In recent times, the harmony and coexistence observed during the signing of the Charter of Democracy or the restoration of democracy in 2008 seem to have been overshadowed by political factions attempting to undermine each other’s credibility. Concurrently, members of parliament are vehemently disparaging judges whose decisions have not aligned with their preferences; executive representatives face allegations claiming attempts made to incapacitate law enforcement agencies while there is speculation regarding a constitutional amendment that may impact Supreme Court Judge retirement age making rounds widely spread. Consequently, this Act aligns itself among several events signifying an impediment towards our democratic values’ decay. The question arises: What now?
For us to reach salvation, it is imperative that the political parties, judiciary and security establishment acknowledge their errors which have led us here. With emphasis on preserving democratic structures critical for survival, political parties must come together. Can we expect our ruling elites to prioritize their own longevity over short-term opportunities, or will they persist in seeking favor from those who have actual power? Is it possible for us to draw lessons from past experiences?
