Silence of the Lambs

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Saving the citizen from falling into error is not the government’s jobs

 

“Those who won our independence, believed that the final end of the state was to make men free to develop their faculties, they believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech, discussion would be futile; that the greatest menace to freedom is an inert people; that public discussion is a political duty and this should be a fundamental principle of the American government”.

The aforesaid opinion was authored by Justice Louis Brandeis whilst ruling on the much celebrated case of Whitney v. California. As per various legal scholars, the said opinion is one of the greatest defences of “freedom of speech” ever written by the judge of a Supreme Court.

Speech is a divine gift to humans as through the same one conveys his thoughts and feelings to others. Freedom of speech is a natural and a basic human right which is conferred in every individual on his/her birth.  In theory, notions of popular sovereignty and rule of law may be useful slogans but in practice still many leaders in the world refrain from tolerating such principles. History is replete with instances wherein the right to free speech was unashamedly and brazenly violated by ruthless monarchical, military, dictatorial and fascist regimes; free thinkers, dissidents, rationalists and advocates of free speech were and are still arbitrarily exiled, unlawfully imprisoned, brutally tortured and executed under the garb of subjective notion of national security.

In Pakistan, the recent ISPR Tweet Controversy (a tweet by ISPR rejecting Prime Minister Office notification on Dawn Leaks Inquiry and the subsequent revocation of the tweet by ISPR) attracted criticism from many quarters. In response to the censure, the Interior Ministry under the legendary and hitlerian leadership of Nisar Ali Khan, with what appeared to have the sole purpose to appease the military establishment, launched an ill-conceived and grand crusade of muzzling dissenting voices on social media. Under the guise of national security, the government is abusing, misapplying and misinterpreting the, already controversial and vague, Prevention of Electronic Crimes Act 2016 (the “PECA”) for settling political vendettas. The Federal Investigation Agency’s (FIA) is persecuting suspects (political activists, dissidents and critics) and questioning them about their tweets/ posts wherein they questioned the institutions of the state.

Freedom of speech is the foundation stone of a democratic setup wherein all individuals are at liberty to participate in the process of policy formulation and decision making. It will not be an exaggeration to assert that freedom of speech is the mother of all other liberties (acts as a shield to other liberties) and enjoys the most favoured position in the ladder of liberties. Political scientists and historians theorise that right to free speech has colossal power to expedite the progress of civilisation; and almost all intellectual and scientific advances are result of free speech and dissent.

Liberty of thought and expression is of paramount significance under our constitutional arrangement; Article 19 of the Constitution of Pakistan states “Every citizen shall have the right to freedom of speech and expression…, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, commission of or incitement to an offence”. A bare reading of Article 19 demonstrates that the right to free speech is not absolute at all times and is subject to certain restrictions; however, such restriction must be imposed by law (legislation by parliament) and ought to be reasonable.

The phrase “reasonable restriction” signifies that the restriction must fulfil the criteria of necessity, proportionality and intelligent care; in addition, such restrictions shall not be arbitrary, excessive, must be in public interest and extremely crucial for achieving a valid state objective. Right to free speech cannot be censored unless the same is hurting or has potential to harm public interest, the predictable threat should not be distant, hypothetical or far-flung; it should rather have proximate and straight nexus with the speech or expression. State can regulate the right to speech when it comes to blows with the rights of other individuals or other public interests; the power to impose restriction is in-essence a power to regulate, the term “regulate” means “to adjust by rule, method, or established mode”, therefore, Benito Nisar Ali Khan Mussolini needs to remember imposing restriction does not mean extinguishment of the right to freedom of expression.

The PECA was passed by the Parliament to target, anti-state actors, proscribed organisations, publishing of sexually explicit materials, breach of privacy, leakage of data, personification, identity theft and offensive messages through communication services etc. The terrorism Wing of FIA is issuing notices to many social media activists; it is still to be discovered under what law the notices are being issued as the PECA does not declare “criticism of state institution” an offence or does not define what “national security” is or has not declared criticism of state institutions against ideology of Pakistan or threat to national security. PECA vests no authority in executive to initiate proceedings against those who point out flaws in policies of state institutions.

The prime object of PECA is to trim down the number crimes committed online, however, it seems like the government has different priorities. We are witnessing duplicitous implementation of PECA, for instance, section 9 criminalises “glorification of an offence”, section 10 criminalises ‘cyber terrorism”, section 11 criminalises “hate speech”, section 12 criminalises “recruitment, funding and planning of terrorism”. Unfortunately, implementation of aforementioned sections is non-existent as social media in Pakistan is abundantly populated with pages/profiles of proscribed organisations e.g. Lashkar e Jhangvi, TTP etc. Moreover, there are many accounts/ pages on Facebook made in honour of criminals like Mumtaz Qadri, Moullana Aziz etc. glorifying terrorism, promoting hatred and instigating violence. It is appalling to notice that such barefacedly unlawful accounts are being ignored by FIA and those logically dissenting from or legitimately criticising state institutions are being apprehended.

There is no cavil with the proposition that military is the honour and prestige of Pakistan, it is the guardian of our geographical boundaries and territorial sovereignty. Our valiant soldiers are willing to and often they lay down their precious lives to protect us. However, it needs to be noted that unconditional submission is useful in the institutional framework of the military but it cannot become norm of a democratic and pluralistic society.

Differing with policy of military shall not be associated with treason or termed as a grievous crime. The military is not fool proof; it can make terrible decisions especially in view of long history of military coups and misadventures of over ambitious Generals. In 2016, General ® Raheel Sharif dismissed numerous army officers over corruption and misuse of power; can we not condemn them? Can’t we criticise Army officers involved in Royal Palm corruption case, NILC graft case, Mehrangate scandal, Hamood-ur-Rehman Commission Report? Can’t we not disapprove of the tweet which was issued in violation of authority? If the Interior minister does not want us to raise voice against corruption, misuse of power and ill thought policies, it simply needs to convince the parliament to pass a constitutional amendment whereby people of Pakistan be declared as “Lambs” who have only one right i.e. right to remain silent no matter what happens.

A personal opinion or observation is just personal and in democracy a state cannot compel its subjects to feel about its institutions in a particular or flattering way. Only impartial criticism of state institutions can reveal the underlying shortcomings and induce the institutions to perform in an efficient and effective manner for meeting public expectations. Civil liberties need to swell not shrink, FIA is unwarrantedly detaining those demanding transparency and accountability. An elected government is doing same what Hitler and Mussolini did to dissidents in Germany and Italy, any effort to asphyxiate the right to free speech would sound death of democracy and would bring forth only tyranny. In this regard, the following opinion of Justice Jackson in case of “American Communications vs Douds” is relevant “Thought control is a copyright of totalitarianism and we have no claim to it. It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error “.