Aitzaz Ahsan, in the preface of his book The Indus Saga, writes: “When a nation chooses to adopt an extraterrestrial identity, it becomes a prisoner of propaganda and myths. This is the Pakistan of today, not of its founders. Identity is at the heart of its problems”.
Over the last five decades at least, Pakistan has struggled with understanding its own identity. We are strongly rooted in the culture of Subcontinent but in our attempt to establish a more “Muslim” (read: Arab) identity, we have adopted practices or interpretations that are not indigenous to Subcontinental Islam. As a result, we have seen the State adopt a particular interpretation of Sunni Islam, to the detriment of other Muslim sects and non-Muslims alike. This interpretation has been imposed upon us through our education curriculum, certain laws, and policy decisions.
There have been two most recent attempts to continue down this path of forced religiosity, despite the clear adverse impact of this that we have experienced over the last seventy years. One such attempt is the Single National Curriculum and the other is the Punjab Assembly’s Tahaffuz-e-Bunyad-e-Islam Bill 2020. Due to limitations of space, we shall only discuss the 2020 Bill here, especially considering that there is still time to ensure this draconian bill does not become law.
The 2020 Bill is a classic example of brazen overreach, censorship, and thought control. In reality, it has nothing to do with “protection” of the “basis” of Islam but more to do with empowering the executive to engage in unchecked and unilateral censorship of publications in the province.
The very delegation of authority from the legislature to the executive here amounts to excessive delegation – a recognized ground for striking down laws under Pakistan’s jurisprudence. Delegation of legislative powers, while generally permissible, cannot be misused to grant unbridled power to determine what amounts to “objectionable content”.
The ambiguity of the 2020 Bill affirms the intention behind this exercise is clamping down on civil liberties, without complying with the legal process for imposing necessary and proportionate restrictions on certain qualified rights. For example, Section 7(b) of the Bill empowers the Directorate General Public Relations (DGPR) to “investigate”, “inquire”, “assess”, or “ascertain” “any acts or omission involved in the matter”. What this “matter” is has not been defined. Yet, power has been delegated to an executive functionary to perform the functions of prosecution and judge to punish any breach under the law: a clear violation of the principles of trichotomy of power and separation of powers.
Similarly, under Section 8(4) of the Bill, certain categories of books confiscated are to be presented to the Muttahida Ulema Board. There is no rationale for assuming that the said Board is competent to decide what is prejudicial to national interest and culture, nor does the Bill provide for any definition of national interest and culture.
Further, the powers of confiscation provided for in the 2020 Bill are violative of Article 10-A of the Constitution, as the Bill does not provide for a right to hearing prior to confiscation, which is violative of the principle of audi alteram partem. The jurisprudence of Pakistani courts is crystal clear on this matter: if it is being contemplated to pass an order against a person, that person should first be provided with an opportunity of hearing. No public office-holder, whether the DGPR or otherwise, can pass an adverse order before granting an opportunity of hearing to the party concerned.
In a growing climate of censorship and thought control in the country, this Bill is another nail in the coffin of freedom and democracy. The damage these sorts of instruments inflict upon our society lies before us in the form of our own history. And relying on the global patterns vis-à-vis censorship and oppression, it is highly unlikely that the status quo will last much longer.
Now, the question is, first, why would a democratic forum behave in such a dictatorial manner, disrespecting the very Constitution that empowers it? And the second question of relevance here is: why would a democratic, representative forum support an instrument that will inevitably fuel sectarian tension and also contribute towards further restricting space for any diverging set of views and/or beliefs from the mainstream.
As citizens of Pakistan, we cannot allow our fundamental human rights to be trampled upon in this manner. The right to expression is one of the cornerstones of any democratic society. Without it, the progress and development of a society cannot take place. Therefore, if this right is to be restricted, limitations on it must be proportionate to the aims purportedly pursued. As per the Punjab Assembly itself, the objective behind this Bill is “protecting” Islam.
Consequently, the onus rests on the Punjab Assembly to first prove or establish the pressing social need that required passage of this Bill. Unless a clear pressing need is established, this Bill can very well be seen as just another attempt from certain opportunistic political quarters to use religion for petty electoral gains that may have catastrophic long-term effects on our society.