Need an Open Market of Ideas

“If all mankind minus one, were of one opinion, and one, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind”. (John Stuart Mill — On Liberty)

Utility of celebrating various days, whether local or international, to reaffirm commitment to their respective causes cannot be denied undoubtedly. But I have often wondered after hearing long speeches: What next? What is to be done? This point was raised by Justice ® Rashid Razvi last week at the discussion held at Karachi Press Club to celebrate World Press Freedom Day.

In 1993 United Nations General Assembly declared 3rd May as the World Press Freedom Day to celebrate the anniversary of the Declaration of Windhoek. The document calls for free, independent, pluralistic media worldwide characterizing free press as essential to democracy and a fundamental human right.

The Declaration of Windhoek is a statement of free press principles as put together by newspaper journalists in Africa during a UNESCO seminar on “Promoting an Independent and Pluralistic African Press” in Windhoek, Namibia from 29 April to 3 May 1991. In addition to practical problems related to the lack of adequate facilities, equipment and training for journalists, the document also enumerates instances of intimidation, imprisonment, and censorship across Africa.

The issues of press freedom are quite similar across the globe. The Universal Declaration of Human Rights says: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media regardless of frontiers.”

So let’s now look at the law in Pakistan. Article19 of the constitution says “Freedom of speech, etc. – Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or 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, defamation, or incitement of an offence.”

In a polity where we have a quasi-democracy, strong autocratic tendencies and foaming intolerance freedom of expression has been made subject to “reasonable restrictions’ imposed by law in number of areas. While some of the areas like defamation and contempt of court have related laws, many other areas are quite open-ended. And any government can stretch these clauses to gag the freedom of expression. For instance:

  • Glory of Islam – you talk in favour of secularism or evolutionary theory it can be interpreted as an offence to glory of Islam. So all discussion has to be within the parameters of Islam.
  • Integrity – even talking about confederation can be taken as an offence.
  • Security or defence of Pakistan – this can be used against those who criticise the army, etc.
  • Friendly relations with foreign States – Criticism of US and Bush are harming our relations with USA so you cannot write about it.
  • Public order – By reporting about or showing protest rallies you are encouraging the protestors, so again you can be penalised for disturbing the public order and inciting people. So on and so forth.

 

The government can retort that this clause is a part of the 1973 constitution, which was unanimously approved by an elected Assembly. They can also rightly claim that no country gives unbridled freedom and freedom of expression has been put under reasonable restriction. The framers of 1973 had instinctively depended a lot on the Indian constitution. It seems that our Article 19 is also inspired by the same with an addition of “glory of Islam,”   of course.

 

Many of the open-ended restrictions have yet to be defined and interpreted by the judiciary. In recent cases also the government ministers have been invoking the support of these constitutional restrictions in their speeches and TV discussions.

 

The issue is that till the courts define and interpret these restrictions, the government can use them freely to gag the media. The media or an affected person can then go to the court for relief. The onus of proving, for instance, what national interest was compromised by a journalist or an individual would be on the government. However, till the decision the alleged journalist would suffer.

 

Many working journalists know that there are also other ways of intimidation with the government like using the police for twisting cable operators’ arms to drop a “hostile channel,” using advertisement whip, etc.

 

In this backdrop the journalists and media owners should brainstorm on the existing laws with the help of some constitutional experts and work on an amendment in the constitution to clip the unlimited powers of the government. PFUJ should take the lead and produce the bill for amendment with the support of the media owners, civil society and political parties.

 

Perhaps we can take some inspiration from the Danish law, which says, “Anyone is entitled to in print, writing, speech to publish his or her thoughts, yet under responsibility to the courts. Censorship and other preventive measures can never again be introduced.”

 

While most people have talked against the government curbs on media, one important aspect was not highlighted (at least not as much as it should have been) is the suppression of the freedom of expression by some political parties, ethnic and fascist groups and the crime mafia in the country. Four Pakistani journalists who were killed in Pakistan were by such groups.

 

In Pakistan affirmative action is needed to defend the freedom of expression of which freedom of media is just a part. It’s about time. The famous poet John Milton did this in 17th century. His central argument was that the individual is capable of using reason and distinguishing right from wrong, good from bad. In order to be able to exercise this rational right, the individual must have unlimited access to the ideas of his fellow men in “a free and open encounter”. From Milton’s writings developed the concept of “the open market place of ideas.” (ayazbabar@gmail.com)

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