Speech as a luxury

It is time to acknowledge some home truths. We are living in times when what the constitution projects as inalienable fundamental rights have come to be seen as luxuries to be afforded to citizens during good behaviour.

The gap between the theory and practice of law (ie between what the law says and what is implemented) is a manifestation of power relations within a polity. Our ruling power elite does not believe that the right to free speech protects undesirable speech too. It believes that undesirable speech will mislead naïve citizens and must be suppressed.

We have had a non-debate in this country that convicts and those accused of crimes lose their right to free speech and that the media loses its freedom to publish such speech. It’s a non-debate because it hasn’t happened. It has been declared that convicts and suspects have no right to have their speech broadcast. No laws have been quoted to back up the declaration as a matter of law. There is no written order. But the verbal edict has proven to be self-enforcing.

We are living in times when the obvious needs to be restated. In democratic dispensations, constitutions and laws are drawn up not to empower the state but to restrain it and regulate its exercise of power to protect citizens against its arbitrary use. The chapter on fundamental rights in our constitution has been put there out of abundant caution, as a reminder to parliament that it must not make laws in breach of fundamental rights, and as a warning to the executive not to exercise its authority such that these rights are undermined.

Our constitution states that the citizen is free to do whatever s/he isn’t barred from doing and the state can only do what laws explicitly authorize it to do. This is the basic principle of agency. Citizens as principals have delegated their authority to their representatives as agents to exercise state powers on their behalf. And the state therefore has the power to do what the law allows it to do. This power flows from the law and is to be exercised subject to the limits prescribed by the law. The doctrine of limited enumerated power is the cornerstone of rule of law.

Article 9 declares that no person shall be deprived of liberty save in accordance with law. Article 19 declares that citizens shall have freedom of speech and there shall be freedom of the press, subject to “reasonable restriction 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, commission or incitement to an offense.”

In dissecting Article 19 the following is obvious: one, restrictions on speech can only be imposed by law ie by law promulgated by parliament; two, restrictions must be aimed at securing the objects of less-protected speech ie protect public order and prevent incitement of violence etc; and three, the restrictions must be reasonable ie they must not be overbroad and must be tailored to promote the object of restriction in the least restrictive manner.

So which law prohibits freedom of convicts/suspects to speak freely is not clear at all. Does the prohibition cover broadcast alone (ie TV/radio) or newspapers as well? We haven’t seen prohibition on publishing statements of convicts/accused in newspapers so far. If such speech is illegal, do convicts/accused commit a crime every time they speak and do citizens commit a crime when they receive such speech/information and/or when they access such speech on social media and republish it by sharing/re-tweeting it?

There are three rights that are impacted here: one, the right of convict/suspect to speak freely; two, the right of press/media to report information freely; and three, the right of citizens to receive information freely under Article 19A. The manner in which our legal framework works in relation to speech is that, guided by Article 19, it declares certain categories of speech illegal – for example, Article 204 and the contempt law, the Pakistan Penal Code, Section 20 of the Pemra Ordinance, the Defamation Ordinance, the Motion Picture Ordinance, Prevention of Electronic Crimes Act etc.

Once speech of a certain kind is declared illegal or criminal and someone’s speech arguably falls within such category in view of its content, a competent forum (a court) determines whether the speech is prohibited and then consequences prescribed by the law follow. In our scenario, there is no law that fetters the right of speech of convicts/accused. This doesn’t mean that convicts in prison are free to conduct press conferences. While in prison, convicts are subject to prison rules, which curtail their rights even other than physical liberty.

But here the unwritten edict fetters the right of convicts who are either on bail or suspects who are yet to be tried and convicted. So in order for their words to fall within a prohibited category of speech, the content of the speech will need to be scrutinized. In other words, when it comes to speech, the law imposes no person-specific blanket ban. Whether or not speech falls within a proscribed category depends on its content. And for the content to reveal itself, the speech needs to be made. In other words, there can be no person-specific prior restraint on speech.

So how then can the broadcast or publication of speech be prohibited even prior to the determination whether its content consigns it to the prohibited category? Under Section 20 of the Pemra Ordinance, the regulator can penalize channels if through their programmes or advertisements they encourage violence or sectarianism or militancy or indecency etc. None of this implies prohibiting broadcast of speeches by on-bail convicts or suspects. Only parliament has the authority to create new categories of illegal speech.

And if parliament so chooses to exercise its legislative authority, it will be for the courts to determine whether such restriction on free speech is reasonable and required to promote the interests mentioned in Article 19. The argument that convicts or suspects be denied the right to speech isn’t backed by any principle either. No penal system states that when you lock folks up for crimes they have committed all their fundamental rights stand suspended along with physical liberty. Other rights continue to exist, even if qualified by prison rules.

A prisoner is allowed right to religion and to pray, for example. His right not to be treated in a cruel and inhuman manner survives. While our jurisprudence hasn’t said much about prisoners’ rights, the issue has been addressed in the US and elsewhere and courts have held that prisoners retain fundamental rights subject to restrictions imposed by prison authorities essential to promote state’s legitimate interest in maintaining security and order in prisons. None of that is relevant here as we are speaking of those not in prison or subject to prison rules.

The bottom line is that content-driven censorship of speech for being politically undesirable even when not illegal isn’t backed by legal authority. But it is not mindless. It has been banned for the same reason that our constitution seeks to protect freedom of speech, media and information: together these rights function as an effective check on the exercise of power.

Justice Holmes in his dissent in Abrams v US (1919) explained best why speech is censored in the first place and why such censorship is a bad idea.

“Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole-heartedly for the result, or that you doubt either your power or your premises.

“But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our constitution”

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu