Safety of journalists and ending the impunity in case of crimes against media and its practitioners has remained a serious issue during the past 20 years in Pakistan. According to Freedom Network, a Pakistani media watch-dog, more than 140 journalists and media practitioners have lost their lives in the line of duty since 2001. Woefully, around 50 percent of them were reportedly targetted and murdered at point blank range. However, except for a few cases – Daniel Pearl, Wali Khan Babar and Ayub Khattak – none completed even the first stage of prosecution. This non-prosecution of crimes against media and journalists is nurturing a culture of impunity in the country.

Pakistan has remained among the most dangerous countries for journalists and for practicing journalism. Nevertheless, the state of journalistic freedom in Pakistan has further deteriorated as the country’s ranking in World Press Freedom Index of the Reporters Without Borders (RSF) has dropped from 139 to 145 over the past four years. Global Impunity Index of the Committee to Protect Journalists (CPJ) ranks Pakistan among top ten countries where more than five murders of journalists have remained unsolved during the past 10 years. Ironically, “[t]he state of Pakistan has emerged as the single largest predator of journalists when it comes to filing legal cases against them for their journalism work”, a recent report of the Freedom Network notes.

The UN Plan of Action on the Safety of Journalists and the Issue of Impunity was launched in 2012 as a global effort to combat growing violence against media and its practitioners around the world. This plan of action seeks to facilitate key stakeholders including the media, state and government authorities, civil society and international organisations to undertake joint and collaborative actions to work on journalists’ safety and fight impunity. This plan of action requires, among other actions, enactment of special legislation and appointment of a special prosecutor to investigate crimes against media and its practitioners. Pakistan endorsed this plan of action in 2013; however, it took almost eight years to make a special federal law on journalists’ protection in the country.

The UN Plan of Action says that, for effectively combating crimes against journalists and media practitioners, a law must provide Prevention, Protection and Prosecution mechanisms. In terms of prevention, the law must provide an institutional mechanism (i) to generate periodic monitoring reports on threats and attacks and (ii) redress complaints by journalists. For protection, the law must facilitate media practitioners at risk or under threat with appropriate safety support – safe houses, relocation, safety funds, etc. Similarly, the law must provide for a special prosecutor to fast-track prosecution of crimes against media practitioners.

The passage of the Protection of Journalists and Media Professionals Act, 2021 (the Act), by the Senate of Pakistan on November 9 as a federal law is undoubtedly a momentous development. A landmark achievement, indeed, as the Act promises “to promote, protect and effectively ensure the independence, impartiality, safety and freedom of expression of journalists and media professionals.”

This subsection in fact threatens that “journalists who fail to fulfil the obligations in sub-section (1) and (2)” will be subject to criminal prosecution. A law to prosecute crimes against journalists speaks about prosecuting journalists. Quite ironic.

The Act provides for the establishment of a body called “the Commission for the Protection of Journalists and Media Professionals (Section 12). This Commission is mandated to, among other functions: (i) produce an annual report on the state of media freedom and safety to be tabled before the Parliament through Ministry of Human Rights; (ii) determine whether an affected journalist is eligible for compensation and recommend the case for compensation to “any provincial compensatory framework already established by the provincial and federal governments”; and (iii) “inquire into complaints of threats and acts of torture, killing, violent attacks, forced disappearance, arbitrary arrests, arbitrary detention and harassment.”

The Act also (Section 3) requires the federal government to ensure protection of right to life and protection against ill treatment. The Act empowers the Commission to report to the federal government and recommend an appropriate course of action against the perpetrator(s) of these violations. Under the Act, media owners are required to provide life and health insurance coverage to each journalist or media professional under Journalists Welfare Scheme.

Nevertheless, the Act seems to cover only a few aspects of the ‘three P’ mechanisms recommended by the UN Plan of Action. In terms of Prevention mechanism, the Act requires production of an annual report on the state of media freedom and safety and provision of complaint redress mechanism (Section 17). As a Protection measure, the Act requires the Commission to “facilitate the provision of legal aid to aggrieved journalists” and ensure implementation of the Journalists’ Welfare Scheme. For Prosecution, the Act does not speak for the appointment of ‘special prosecutor’ for prosecution of crimes against media practitioners. However, it requires that the government “investigate and prosecute acts of abuse, violence or intolerant behaviour” against the journalists, reporters and media professionals.

This shows that despite promises to provide an institutional mechanism to provide protection to journalists and media professionals, the Act falls short of the recommendation under the UN Plan of Action on the Safety of Journalists and the Issue of Impunity. The Act is silent with reference to the appointment of a special prosecutor for “fast-track prosecution of crimes against media practitioners.” Moreover, the Act does not provide any sanction if the government fails to fulfill its obligations under Sections 3, 4 and 5.

On the contrary, Section 6(1) of the Act requires that in order to benefit from this law, “journalists and media professionals must respect the rights and reputations of others and not produce material that advocates national, racial, ethnic, religious, sectarian, linguistic, cultural or gender-based hatred, which may constitute incitement to discrimination, hostility or violence.” Section 6(2) requires that “journalists and media professionals must not engage in the dissemination of material known by such an individual to be false.” The most problematic part of this Act is Sub-section 3 of Section 6. This subsection in fact threatens that “journalists who fail to fulfil the obligations in Sub-section (1) and (2)” will be subject to criminal prosecution. A law to prosecute crimes against journalists speaks about prosecuting journalists. Quite ironic.

One can infer that this section is tantamount to ‘regulation’ of journalism in Pakistan, which otherwise is subject to the voluntary code(s) of ethics of media houses. The positive potential of the Act seems to be compromised by unnecessary insertion of this section as it imposes an unfair burden on journalists and media professionals by requiring them to establish good faith at the pain of criminal liability for failing to do so.

Journalism is not a crime; therefore, a law for the protection of journalists and media professionals must not make this constitutional and legal right conditional to observance of vague and threatening provisions.

The author is an Islamabad-based media law expert and heads an independent research and advocacy institute. He tweets @aftabalam_77