Over four hundred people have signed a letter to the Punjab Assembly, demanding that the Punjab Tahaffuz-e-Bunyad-e-Islam Bill 2020 be withdrawn in its entirety owing to several legal issues stemming from the Bill. These four hundred people represent a wide cross-section of society, including academics, lawyers, civil society activists/organizations, educationists, students, philanthropists, artists, publishers, journalists, writers, human rights defenders, senators, doctors and even members of the Punjab Assembly itself.
Despite the fact that this Bill has been sent back to the Standing Committee for review and development of consensus, civil society remains concerned at the possibility that this Bill will be re-introduced, after amendments pertaining to religious objections raised thus far have been inserted into the text. The reality is that if the Bill is passed, even with amendments, the objective of the Bill is overreach, in breach of Constitutional safeguards for fundamental rights. Therefore, regardless of the amendments, the premise of the Bill directly contravenes Articles 10A, 18, 19, 19-A and 25 of the constitution.
The former managing director of the Punjab Curriculum and Textbook Board (PCTB), who has now been removed from his post, had given a disturbing statement, which is worth reproducing here to provide an insight into why no single executive functionary can be granted competence to decide what is prejudicial to national interest, culture or Islam. The statement provided: “Books don’t ruin us. Bad books ruin us”. This assertion is the starting point for understanding the flaws within both the Punjab Curriculum and Textbook Board Act 2015 and the 2020 Bill.
Who decides what constitutes a ‘bad’ book? What are the parameters for ascertaining that a book is ‘bad’? And surely, the solution to ‘bad books’ (if such a thing really exists) is the publication of better books, rather than censorship. Under the Bill, the Directorate General Public Relations (DGPR) is given immense arbitrary, unfettered and unilateral power to visit and inspect any printing press, publication house or bookstore and confiscate any book, before or after printing. This is, in any case, outside the scope of functions of the DGPR, which means that this delegation of authority is ultra vires the law and constitution.
Ultimately, access to books falls under Article 19 of the constitution, which safeguards the right to freedom of expression. This right is contained in Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which Pakistan has been a State Party to since June 23, 2010. While the right to expression is not an absolute right, it can only be restricted if the restrictions comply with the three-part test contained in Article 19 of the ICCPR.
The three-part test provides that an interference with the right to expression is only legitimate if: first, it is provided by law; second, if it pursues a legitimate aim; and third, if it is necessary in a democratic society. The Punjab Assembly must establish that these interferences with Article 19 of the constitution and the ICCPR are legitimate under this legal standard of assessment. Thus far, this Bill fails that test.
The ambiguity in the language of the Bill itself reflects the overreaching and unlawful powers the Punjab Assembly has attempted to delegate. For example, while “objectionable material” can be confiscated, there are no intelligible criteria provided within the Bill based on which this confiscation can be ordered. If this Bill becomes law, it will inevitably result in violations of Article 25 of the constitution, as there will be no checks and balances against discriminatory or prejudicial treatment in application of this provision. Similarly, as no criteria has been provided, the Bill does not fulfill the requirements of “law”, which must be foreseeable so that persons can regulate their conduct appropriately.
If I do not know how the law expects me to behave, or what the law deems to be acceptable or unacceptable content, how am I expected to act in accordance with the law?
There are some other very serious problems with the Bill, which have all been addressed at length in the letter, which is available for signature online.
As the Punjab Assembly members had not even read the Bill prior to passing the same, this raises some other very relevant questions that must be answered at the federal level. The most important of these questions is: can any provincial assembly legislate in breach of Pakistan’s international legal obligations? As the responsibility for implementation of international conventions falls on the State of Pakistan as a whole, it becomes crucial for the federation and the provinces to be clear on the scope of their legislative competence where Pakistan’s international obligations are concerned.
Lastly, it has become common practice to say that Islam is under threat in Pakistan, and pass draconian legislation or policies to ‘protect’ it. But it is not enough to simply claim that ‘threat’. These ‘threats’ have to be explained, and the limitations placed on the exercise of fundamental rights need to be justified accordingly.
The writer is founding partner of Mazari-Hazir Advocates & Legal Consultants.
Email: imaanmazarihazir@ gmail.com
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