State as occupier?

Section 124-A of the Pakistan Penal Code, being employed generously to scuttle protests by students and others offended by the state’s heavy-handedness, says that, “whoever… excites or attempts to excite disaffection toward the federal or provincial government established by law shall be punished with imprisonment for life…”

Imagine a strict enforcement of this provision. Imagine the PTI dharna of 2014. Imagine all anchors and experts frothing with excitement and anger against elected governments all the time. Why not use 124-A across the board?

There are two sorts of bad law: laws blatantly oppressive to fundamental rights and settled principles of democracy, fairness and justice; and overbroad and poorly worded laws making them liable to be abused. Sedition law falls in both categories. It conceptually belongs to a time when rule of men reigned supreme and rule of law hadn’t yet evolved. Monarchs ruled by force and not by consent. Citizens were subjects, who neither had a role or say in installing government nor were allowed to criticize or remove it. They needed to be kept in check.

Occupation forces brought sedition laws to the colonies. The relationship between a colonial government and natives was that of ruler and subject, and the latter had no say in determining the character of the polity. When you are a minority that rules over a majority by force you need laws to scuttle dissent and criticism. Sedition law thus had a part to play. Locals couldn’t be allowed to get together, criticize an occupation force and incite other locals to join hands to overthrow such regime. So how does sedition law make sense now? It doesn’t.

Except that even though our de-jure system claims to be constitutional democracy (wherein citizens are meant to be sovereign and rule through their chosen representatives), the de-facto system continues to operate a post-colonial state treating citizens as subjects. If the constitution is a compact between the citizen and the state, how does sedition law fit in? The conceptual contradiction is obvious: if we are a government of the people, for the people and by the people, can we be punished for criticizing ourselves?

The absurdity of the literal interpretation of sedition law was obvious even during colonial times. Back in 1942, CJ Gwyer of the Federal Court held while deciding Majumdar vs Emperor that, “the time is long past when mere criticism of governments was sufficient to constitute sedition, for it is recognized that the right to utter honest and reasonable criticism is a source of strength to a community rather than a weakness. Criticism of an existing system of government is not excluded, nor even the expression of desire for a different system altogether.”

In a nutshell, as far back as 1942 courts established by our colonial masters held that only incitement of people to violence that could breach the peace and create disorder (and lead to overthrowing of government by force etc) would qualify as sedition. Our constitution allows for a mechanism to change the government. We have a coalition government at present. Why should it be an offence for example, for someone to advocate to coalition partners that they should withdraw their support for the government leading to its fall?

The constitution provides for in-house change and also for early elections should the need arise. It provides for political accountability by parliament whereby opposition parties hold the government’s feet to fire. It envisages public accountability as it declares that the right to information is a fundamental right, along with freedom of speech, freedom of association and freedom of assembly. Within these rights is founded the citizens’ freedom of conscience and right to protest.

If our constitution deliberately caters for change in government, guarantees all tools and rights that enable citizens to criticize their government and also creates a mechanism to change the constitution itself, how can criticism of an incumbent regime be an offence punishable by life imprisonment? If that had been the intent, it would mention ‘criticism of government’ as a category of speech not protected by Article 19, where it creates other exclusions, including for speech likely to cause public disorder or incitement of an offence?

Section 124-A should be declared unconstitutional in its literal form, unless it is read down to mean criticism of government aimed at inciting violence. Why is it still being used to haul critical voices over the coals? Because citizens are still viewed as subjects. Their right to speak critically is to be controlled, as is their right to protest. If the criticism of the state by rabble-rousers begins to resonate, the state might feel accountable to the citizens and hence the need to control and shape public opinion.

That is where overbroad and archaic offences such as sedition come handy, coupled with abuse of the power to arrest. It is settled law that an accused is to be deemed innocent until proven guilty. The police have the power to arrest. But this power (which takes away a citizen’s right to liberty guaranteed by Article 9 of the constitution on mere suspicion) must be used sparingly and in a manner least restrictive of citizens’ right to freedom. But it isn’t.

We are so accustomed to abuse of arrest power pending investigation and trial that we find nothing wrong with it. When you enter law school you are taught in Criminal Law 101 that an accused is arrested if s/he is: (i) a threat to society (often repeat offenders liable for heinous crimes); (ii) capable of destroying evidence; and (iii) a flight risk. (Monitoring and use of technology is now used to manage the flight risk bit instead of keeping accused under arrest). But this common sense approach is alien to us.

Registration of an FIR means that the accused will be arrested anytime. They must scramble to seek pre-arrest bail. No one asks the police why they felt the need to arrest someone. In many cases (such as the recent sedition ones), the police don’t even need the accused for investigation. The accused are trucked right to jail, where they stay pending grant of bail. Alternatively, once the police investigation is complete the accused are sent to jail. Why should an accused start to serve jail time before trial and conviction?

In a recent report on jail conditions submitted to the Islamabad High Court by Dr Shireen Mazari as human rights minister, it was revealed that over 50 percent of jail population comprises those under trial. So we lock folks up for years and years (our courts being extremely stingy in granting bail, let alone inquiring why the police arrested the accused), to find out more often than not that the prosecution has failed to build a case and secure conviction. The accused is then released, in some cases after enduring full punishment without conviction.

Every once in a while, a court will cite good-old case law on how grant of bail is a right and its denial the exception. There is some commentary on abuse of the power to arrest as well. Justice Khosa, wrote for a Lahore High Court full bench (PLD 2005 Lahore 470) that, “it would be preposterous and a mockery of justice if a person may be deprived of his liberty first and later on the allegation against him may be found by the arresting agency itself to be bogus, trumped up or false. Such an approach would amount to putting the cart before the horse.”

The case was citied approvingly most recently by the Supreme Court in ‘Sughran Bibi’ (PLD 2018 SC 595) where it was clarified that registration of FIR doesn’t mean automatic and mindless arrest of the accused. But despite this seven-member bench SC ruling, our shoot-first-ask-later practice remains. The accused are arrested with the onus to establish prima facie innocence at the bail stage to secure their freedom pending trial, failing which they continue to serve jail time until the prosecution fails to secure a conviction.

Our criminal justice practices are a product of part-apathy, part-inertia and part-malice. The system is designed to punish the accused. So pray to God you aren’t caught on the wrong side of the system.

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu