Letter to PA on concerns regarding Tahaffuz-e-Bunyad-e-Islam Bill

LAHORE: Over 200 lawyers, activists, educationists, academics, journalists, doctors, architects, publishers, athletes, artists, philanthropists, community organizers/workers, historians, members of the business community, economists & members of the Punjab Assembly have submitted a letter to the Punjab Assembly, registering concerns regarding the Tahaffuz-e-Bunyad-e-Islam Bill 2020. This letter is now also open for public signatures. The letter’s content is as follows:

“We write to you today to express our grave concern over the passage of the ... Bill which empowers the Directorate General Public Relations (DGPR) to visit and inspect any printing press, publication house or book store and confiscate any book, before or after printing. The vesting of such immense arbitrary, unfettered and unilateral power in a single bureaucrat is in breach of even those reasonable restrictions that can be imposed on the right to freedom of expression under the Constitution of Pakistan, 1973.”

“Additionally, the DGPR does not have the expertise to decide such matters. The function of the DGPR is the publicity of the government and handling of public relations of the government. There is no rational or legal basis for the DGPR to be granted competence by the legislature to make determinations on matters entrusted to the official under this bill. Further, under Section 8(4) of the bill, the books confiscated are to be presented to the Muttahida Ulema Board. The Bill neither defines the board nor does it shed light on its composition. There is also no rationale for assuming that the said board is competent to decide what is prejudicial to national interest and culture.”

“Moreover, due to the ambiguous wording of the bill, there are major problems with respect to its application, specifically relating to discriminatory application of this power, which will inevitably lead to violations of Article 25 of the Constitution. For example, the bill prohibits the printing and publication of ‘objectionable material’ and prevents publishers, editors and translators from printing or publishing the said material, without defining what constitutes ‘objectionable material’. As such, there is no objective legal certainty through which citizens of Pakistan can definitively regulate their conduct in accordance with the provisions of this bill.”

There is a pressing need for this bill to be reviewed in its entirety, as it amounts to excessive delegation of powers to the executive. The courts in Pakistan have repeatedly struck down laws on the basis of the doctrine of excessive delegation. Our constitutional framework is based on trichotomy of powers. Although limited delegation of legislative powers is permissible, such unbridled power to determine what amounts to objectionable content essentially amounts to handing over power of the legislature to an executive official.”

“Under Section 7(b) of the bill, the DGPR has been empowered to ‘investigate’ any acts or omission involved in the matter. The bill additionally empowers the DGPR to refuse permission to import, print or publish a book ‘if it is prejudicial to the national interest, culture, religious and sectarian harmony’. These are not lawful restrictions on the right to freedom of expression under the Constitution. In fact, even if there were listed grounds contained in Article 19, restrictions on the right to expression must comply with the three-part test contained in Article 19 of the International Covenant on Civil and Political Rights (ICCPR), to which Pakistan has been a state party since 23 June, 2010.”

“The onus is on the Punjab Assembly to establish that the interference resulting from the bill is legitimate under the legal standard of assessment provided in the ICCPR. The powers of confiscation provided for in the bill are violative of Article 10-A of the Constitution. The requirement of four gratis copies placed on publishers and printers, under Section 5 of the bill, is an impediment to the exercise of Article 18.”

“This bill is also in breach of Article 19-A of the Constitution, which protects the right to access to information. The concepts of glory of Islam, national interest, culture and religious and sectarian harmony cannot be allowed to be misused and become a tool for whimsical, arbitrary, subjective, unstructured, dictatorial or unreasonable censorship and control of publications.”

“Ultimately, we view the passage of this bill as a blatant attempt by the Punjab Assembly to circumvent the guarantees for fundamental rights contained in the Constitution. What is peculiar is why a democratic forum would behave in such a dictatorial manner, disrespecting the very Constitution that empowers it. The DGPR, as the sole regulator for publications across Punjab, cannot act in an unjust manner. Under the law and Constitution, the DGPR is not granted absolute discretion to act arbitrarily.”

“We also fear that certain provisions of the proposed bill may fuel sectarian tensions in the province, which would have spillover effect(s) throughout the country. The Constitution does not allow legislators to have unbridled power to legislate, they must do so within the defined contours of the Constitution and the fundamental rights enshrined in it. Lastly, as citizens of Pakistan, we cherish the right to freedom of expression as one of the cornerstones of a democratic society. Moreover, the Punjab Assembly has been unable to highlight a pressing social need that required passage of this bill. Therefore, we register our opposition to this ... bill and urge reconsideration of the position adopted by the Punjab Assembly. We would also like to raise our concern with respect to the impact of this bill on domestic industry. Given the digital age we live in, such prohibitory legislation may end up encouraging citizens to get hold of online pirated versions of publications that they wish to read. This would consequently have an adverse impact on local publishers and distributors.”