A recent tirade by PTI leader Shahbaz Gill led to a criminal case against him. Alongside a first information report (FIR) against ARY Chief Executive Officer (CEO) Salman Iqbal was registered and the channel’s head of news Ammad Yousuf was arrested. The Interior Ministry cancelled ARY News’ NOC for broadcasting, two days after the Sindh High Court ordered PERMA and cable operators to restore transmission.
To understand the legal context, we must look beyond the provisions of the Pakistan Penal Code (PPC) under which Gill is charged.
The charges against Gill stipulate that he incited mutiny within the armed forces, and thereby should be tried for sedition. By allowing seditious speech to air on their platform, PEMRA issued ARY News a show-cause notice, halted their transmission, and the government revoked their security clearance. Any action by state agencies, be it the police, judiciary, or PEMRA, must be in accordance with the constitution of Islamic Republic of Pakistan, 1973 – the highest law of the land.
Article 19 of the constitution protects freedom of expression and press, “…subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, 1[commission of] or incitement to an offence.” (emphasis added).
A textual reading of this provision, and its interpretation in the Supreme Court’s Faizabad dharna judgment, illustrates that there are ample domains of unprotected expression in the framing of Article 19, and Gill’s speech seems to fall within more than one restriction.
Freedom of expression in Pakistan is extremely confined, as is evident from the myriad of explicit limitations embodied in Article 19 itself. These vast limitations go against the essence of why this fundamental right was included in the first written constitution of a nation-state – the United States of America. US jurisprudence considers 1st Amendment (free speech) as the most crucial fundamental right. They argue that this right alone can protect democracy and allow citizens to raise their voice against any injustice, thereby seeking enforcement of other rights. Pakistan’s legal framework, however, does not embody this sentiment towards expression. Pakistan inherited British Colonial Laws of the Indian Sub-Continent, which were ideal for centralist-authoritarian regimes. Thus, the laws regulating speech inherited by the nascent country entail abrasive forms of censorship, including the provisions of the Pakistan Penal Code, 1860, applicable in Gill’s case.
Gill’s speech under question fails to find much support within broader theories on protection of expression; albeit, this is not true for ARY News’ shutdown. Aristotelian natural law proponents look for the protection of expression conducive to good, virtuous life. J. S. Mill, in ‘On Liberty’, provided a utilitarian defense of expression/marketplace of ideas theory; while Alexander Meiklejohn posits that free speech is necessary for democratic government. While all of these lend credence to protect a news channel from being shut down, especially without judicial oversight, none of them will go so far as to suggest that a speech bordering on inciting mutiny will fall within the domain of protected speech. This is why freedom of expression and press have restrictions in constitutions and international human rights frameworks.
One commonly accepted limitation on expression is hate speech or fighting words, which are seen to have no intrinsic value. The First Amendment Jurisprudence in USA accepts restricting expression where it presents clear and present danger (Schenck v US), or imminent lawless action (Brandenburg v Ohio).
Other relevant constitutional provisions include Articles 5, 10, 10A, and 12. While it is being alleged that Gill was manhandled by the police, and thus his rights to fair trial, dignity, and protection against torture are being violated. However, if the government decides to pursue these options, more troubles lie ahead for Gill. If one believes that Gill’s speech violated the abovementioned limitations on freedom of expression, it will automatically be in violation of Article 5 (loyalty to the state), and can also fall within the purview of preventive detention under Article 10(4), which comes into action when conduct of a person is deemed “…prejudicial to the integrity, security or defence of Pakistan or any part thereof, … or public order…”. Preventive detention was first codified in the Indian Sub-Continent through the Defence of India Act, 1915, and its scope was expanded beyond emergency times through the Anarchic & Revolutionary Crimes Act, 1919.
One remedy is for Gill and ARY to file a constitutional petition, alleging a violation of their respective fundamental rights. At the same time, forums available to the government for further prosecution include trial by regular criminal court, anti-terrorism court, and possibly by military court as well. Collectively, these avenues of prosecution seem excessive at the very least. However, protection of national security and integrity are recognized limitations on free speech and journalistic freedom in democracies worldwide, especially where the content might lead to irreparable injury. Thus, freedom of press implies responsible journalistic practices only (Reynolds v Times).
Is censorship excessively pervasive in Pakistan? Yes! Expression in Pakistan is excessively confined. Unfortunately, the new laws being passed continue to limit speech – a regression to which the PTI has contributed to during their tenure.
To understand the legal context, we must look beyond the provisions of the Pakistan Penal Code (PPC) under which Gill is charged.
The charges against Gill stipulate that he incited mutiny within the armed forces, and thereby should be tried for sedition. By allowing seditious speech to air on their platform, PEMRA issued ARY News a show-cause notice, halted their transmission, and the government revoked their security clearance. Any action by state agencies, be it the police, judiciary, or PEMRA, must be in accordance with the constitution of Islamic Republic of Pakistan, 1973 – the highest law of the land.
While all of these lend credence to protect a news channel from being shut down, especially without judicial oversight, none of them will go so far as to suggest that a speech bordering on inciting mutiny will fall within the domain of protected speech.
Article 19 of the constitution protects freedom of expression and press, “…subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, 1[commission of] or incitement to an offence.” (emphasis added).
A textual reading of this provision, and its interpretation in the Supreme Court’s Faizabad dharna judgment, illustrates that there are ample domains of unprotected expression in the framing of Article 19, and Gill’s speech seems to fall within more than one restriction.
Freedom of expression in Pakistan is extremely confined, as is evident from the myriad of explicit limitations embodied in Article 19 itself. These vast limitations go against the essence of why this fundamental right was included in the first written constitution of a nation-state – the United States of America. US jurisprudence considers 1st Amendment (free speech) as the most crucial fundamental right. They argue that this right alone can protect democracy and allow citizens to raise their voice against any injustice, thereby seeking enforcement of other rights. Pakistan’s legal framework, however, does not embody this sentiment towards expression. Pakistan inherited British Colonial Laws of the Indian Sub-Continent, which were ideal for centralist-authoritarian regimes. Thus, the laws regulating speech inherited by the nascent country entail abrasive forms of censorship, including the provisions of the Pakistan Penal Code, 1860, applicable in Gill’s case.
Gill’s speech under question fails to find much support within broader theories on protection of expression; albeit, this is not true for ARY News’ shutdown. Aristotelian natural law proponents look for the protection of expression conducive to good, virtuous life. J. S. Mill, in ‘On Liberty’, provided a utilitarian defense of expression/marketplace of ideas theory; while Alexander Meiklejohn posits that free speech is necessary for democratic government. While all of these lend credence to protect a news channel from being shut down, especially without judicial oversight, none of them will go so far as to suggest that a speech bordering on inciting mutiny will fall within the domain of protected speech. This is why freedom of expression and press have restrictions in constitutions and international human rights frameworks.
Collectively, these avenues of prosecution seem excessive at the very least. However, protection of national security and integrity are recognized limitations on free speech and journalistic freedom in democracies worldwide, especially where the content might lead to irreparable injury. Thus, freedom of press implies responsible journalistic practices only (Reynolds v Times).
One commonly accepted limitation on expression is hate speech or fighting words, which are seen to have no intrinsic value. The First Amendment Jurisprudence in USA accepts restricting expression where it presents clear and present danger (Schenck v US), or imminent lawless action (Brandenburg v Ohio).
Other relevant constitutional provisions include Articles 5, 10, 10A, and 12. While it is being alleged that Gill was manhandled by the police, and thus his rights to fair trial, dignity, and protection against torture are being violated. However, if the government decides to pursue these options, more troubles lie ahead for Gill. If one believes that Gill’s speech violated the abovementioned limitations on freedom of expression, it will automatically be in violation of Article 5 (loyalty to the state), and can also fall within the purview of preventive detention under Article 10(4), which comes into action when conduct of a person is deemed “…prejudicial to the integrity, security or defence of Pakistan or any part thereof, … or public order…”. Preventive detention was first codified in the Indian Sub-Continent through the Defence of India Act, 1915, and its scope was expanded beyond emergency times through the Anarchic & Revolutionary Crimes Act, 1919.
One remedy is for Gill and ARY to file a constitutional petition, alleging a violation of their respective fundamental rights. At the same time, forums available to the government for further prosecution include trial by regular criminal court, anti-terrorism court, and possibly by military court as well. Collectively, these avenues of prosecution seem excessive at the very least. However, protection of national security and integrity are recognized limitations on free speech and journalistic freedom in democracies worldwide, especially where the content might lead to irreparable injury. Thus, freedom of press implies responsible journalistic practices only (Reynolds v Times).
Is censorship excessively pervasive in Pakistan? Yes! Expression in Pakistan is excessively confined. Unfortunately, the new laws being passed continue to limit speech – a regression to which the PTI has contributed to during their tenure.