We’ll mind our own language, thank you – Pakistan Telecommunication Authority’s proposed ban on allegedly ‘obscene’ texts has once again brought the country into the news for the wrong reasons. Apart from the fact that the list of ‘obscene’ words has introduced many of us to shades of obscenity we may not have been familiar with, this whole plot carries little redeeming virtue. And if being a Pakistani abroad is not exhausting enough already!
As far as the world media is concerned this was another juicy story that, but of course, is evidence of the creeping Talibanisation of the Pakistani society and the growing power of the Islamists. To be quite honest, I am rather sick of the whole ‘let’s put a Taliban/Islamist spin on every development’ tactic. Like an overwhelming majority of Pakistanis I am anti-Taliban and vocal about it. But my existence and that of my country is not limited to those radicals yet that is what most new stories are interested in. It is intellectually dishonest and an insult to the intelligence of Western journalists and their audiences. But lapping it up, they are.
Apart from the trivialities of the planned ban, there are many issues at play here. First up I think the Pakistani society deserves commendation for the fact that the mere talk of such a ban became big news and multiple fronts have already threatened legal action. We Pakistanis are a loud bunch but we don’t always raise the right amount of noise — in this case we have done that so, as they say in Pakistan, ‘yeh cheez’!
The legal challenges to the planned ban under the Protection from Spam, Unsolicited, Fraudulent and Obnoxious Communication Regulations, 2009 are likely to be successful. The Pakistan Telecommunication (Re-organisation) Act, 1996 carries some fairly broad language which the PTA can rely on to argue that it is acting to protect the interests of consumers of telecom services. However, the list is not just absurd but clearly overbroad and courts generally find it easy to strike down such overbroad exercise of power.
According to some reports, the justification offered by the PTA’s letter makes reference to the ‘glory of Islam’ in Article 19 — glory of Islam being one of the grounds under which freedom of press and speech and can be restricted. The courts will hopefully not uphold an overbroad and absurd list of words under the banner of glory of Islam.
Apart from legalities, even as a matter of policy, the PTA acted clearly in ignorance of its avowed aims. The 2009 regulations in question already lay down how each service provider in the telecom sector must have a complaint handling mechanism to deal with issues of unsolicited calls and texts. Numbers can be blocked and subscribers can take effective action in this regard. The aim of the 2009 regulations is to protect consumers and it is laughable, yet predictable, that the PTA would rely on a desire to protect consumers while putting in place the new ban. That is how freedom is interfered with each time — a paternalistic desire to protect the people.
But by merely concentrating on the list and by making fun of it, we have ignored a deeper issue. And that is the stance of a society on the prior restraint of speech. It is fascinating that this list seems intuitively ‘wrong’ to so many people—both Pakistanis and others. But as a lawyer it is intriguing to think about how societies focus on some issues while ignoring others of the same shade. By focusing on the list alone are we conceding the argument that a less broad list would be okay? What if the list only incorporated some of the dirtiest swear words—with no alternative uses? Would a state agency’s determination to protect people from harassment then justify restraints on what people can or cannot communicate to each other over text messages?
Consider pornography. Some countries ban it altogether while others merely regulate access to it for certain age groups. Europe, otherwise considered more liberal than the USA, is grappling with its own freedom of expression issues. Many European states ban and/or punish Holocaust denial. Such laws would not pass constitutional muster in the United States where the First Amendment jurisprudence sets an extremely high bar before restrictions can be imposed. In Pakistan, we find the PTA issued list of banned words laughable but the debate would be different if the words were lesser or more provocative.
Why should it be that way? Why shouldn’t we as a society take this opportunity to debate the merits of any prior restraint on speech? Is that going too far? Access to pornographic websites has recently been banned in Pakistan — shouldn’t we have rights groups threatening legal action to challenge that too? These are just questions—difficult questions at many levels—which I think we as a society need to discuss. Surely, most of us concede that the state does have authority to step in and regulate speech but at what point is that line crossed?
We already have laws in place that punish use of words that cause sexual harassment and assault. Implicit in such laws is a judgment call that certain results, if and when produced, deserve condemnation. At the same time, many would argue that the state has no business regulating words exchanged between two consenting individuals; that argument sounds fine and yet it captures the problem. There is a temptation for the state to be paternalistic in such matters but for the most part it must be resisted.
Let no one convince you that Pakistan is a messed up country because of this PTA list. The world needs to get over its coverage of Pakistan in make or break terms. No country can claim never having acted out of a protective impulse in enacting repressive laws. This is an ongoing process — a part of our growing up. But we will only truly grow up when we debate the issues at a deeper level and when enough among us rise to raise the most difficult questions.
The writer is a Barrister and an Advocate of the High Courts. He is currently pursuing his LL.M at a law school in the United States. He can be reached at wmir.rma@gmail.com