Here’s Why Bill Criminalising ‘Defaming The Armed Forces’ Is Unnecessary
A bill moved by Pakistan Tehreek-e-Insaf (PTI) lawmaker Amjad Ali Khan in the National Assembly has sought to criminalise ‘defaming the armed forces or any of its members’. The proposed law that seeks an amendment in the Pakistan Penal Code by the insertion of the Criminal Law Amendment Act 2020 suggests a two-year jail term or Rs500,000 fine in case one if found guilty of ‘ridiculing’ the armed forces of the country.
The bill laid down in the National Assembly proposing criminal punishment for intentionally ridiculing, bringing into disrepute or defaming the armed forces. Under Article 19 (Freedom of speech), every citizen has the right to freedom of speech and expression, subject to any reasonable restrictions imposed by law in the interest of the… security or defence of Pakistan… public order, decency or morality. The proposed bill is unreasonable and not rationally connected with the defence of Pakistan, let alone any tenet of morality.
The bill is redundant as far as it relates to defamation law
Defamation is already a criminal act under the Pakistan Penal Code. Any person who makes a statement knowing or having reason to believe that it would ‘harm the reputation’ of a person is guilty of an offence subject to imprisonment of up to five years. Defamation also supplies a civil cause of action under the Defamation Ordinance, 2002 under the heads of libel and slander.
That means the proposed Bill, in inserting ‘defames’ or ‘intentionally ridicules’, adds nothing substantively new in the defamation space. Members of the armed forces are already as protected as any other citizen under laws of Pakistan. The bill is unnecessary to the extent it wants to re-introduce these elements that are sufficiently covered by Pakistani law.
‘Bring into disrepute’: a problematic inclusion with incredible scope
The problematic restriction that the bill introduces is the criminalisation of intentionally ‘bringing into disrepute’ the institution or its members. This blanket offence is unreasonable for various reasons. It has an incredibly wide-ranging scope, which could cover the publication of a material showing exceptional wealth amassed by current or former military generals or even journalistic analysis of criminal proceedings against them. That means that the mere fact of having worked in the armed forces protects one from criticism, despite wrongdoings that one might have committed. That gives such members special protection under the law and is contrary to the basic principle of equality before the law.
At this point, one might cite former Chief Justice Khosa’s comments in the COAS extension case: “I understand that democratic maturity of our nation has reached a stage where this Court can proclaim that, as declared by Chief Justice Sir Edward Coke of England in the Commendam case in the year 1616 regarding the powers of King James I, “Howsoever high you may be; the law is above you”
In addition, the phrase ‘bring into disrepute’ appears to be imported from the legal context. The term is often used in the law of evidence and criminal procedure when a court assesses whether to admit certain evidence which may give rise to prejudice against a defendant. The term is historically understood in the sense of maintaining the integrity of, and public confidence in, the justice system. It applies to members of that profession to maintain the highest standards of professionalism, and also to judges to ensure that cases are conducted in such a way as to have due regard for the rule of law and human dignity.
To import this language in the criminal context via the Pakistan Penal Code is conceptually inappropriate because the ‘bring into disrepute’ phrase is aimed at self-regulation and upholding professional standards within an organisation. In the proposed Bill, the phrase is flipped on its head as a buffer to give blanket protection to the armed forces and its members – who might now enjoy no meaningful scrutiny for their actions even in their personal capacity.
That scrutiny has little to do with the security or defence of Pakistan, and the fact that it might bring the institution or its members into disrepute is a natural consequence of that engagement. Without such scrutiny, it is hard to conceive of a situation in which parliamentarians can enact laws in the interests of the continuous improvement of the armed forces and ultimately the citizens of Pakistan.
The reality is that the ‘brings into disrepute’ addition can be weaponised by actors to intimidate citizens and prevent them from exercising their fundamental rights. This is where the backdrop to the Bill is crucial. Pakistan is consistently ranked amongst the worst places to exercise freedom of speech, and unsafe for journalists. Reporters without borders ranks Pakistan at 145th (3 places down from 2019) in the World Press Freedom index. In effect, the term brings into disrepute’ could criminalise investigative reporting as we currently understand it, and public debate, on either the military’s role in Pakistan or any of its members’ activities.
The Bill, in its current form, is therefore unconstitutional and should be struck down as void under Article 8 of the Constitution (‘Laws inconsistent with or in derogation of Fundamental Rights to be void’).
Despite Prime Minister Imran Khan’s infamous statement claiming media in Pakistan is freer than the United Kingdom, it appears that government policy and legislative agenda is anathema to Imran Khan’s perception. There has been a downward spiral in democratic freedoms evidenced by Ministers’ calling out to publicly hang and kill ‘corrupt’ individuals.
Similarly, the ruling party’s members have denounced investigative reporting and critical opinions as ‘anti Pakistan’. The bill itself has been tabled by Treasury bench member, Amjad Ali Khan of the Pakistan Tehreek-e-Insaf. The framing of the bill as ‘to prevent hatred and disrespectful behaviour’ is grossly disingenuous because criticism, evaluation and conflicted public discourse on military’s engagements can be misconstrued as ‘disrespectful and hatred’.
It would most certainly pressurise Parliamentarians into voting for the bill because opposition implies supporting ‘hatred’ against the respected forces. The government’s proclivity to regulate and bureaucratise public opinion is well known but the threat of negative sanctions which target freedom of movement was not foreseen.
Moreover, it must be emphasised that the Pakistan armed forces are uniquely placed in Pakistan’s governance architecture and policy framework. This placement has resulted in an active role in politics, governance, electoral democracy and security. Unlike other armed forces, the Pakistan military’s role is not confined to security and defence alone which has made the institution exposed to scrutiny and attacks.
For e.g. the involvement in foreign policy, especially, relations with India and Middle East countries means that the institution has come under political and academic scrutiny over international relations policy. Similarly, the PTI government broke with tradition to make the army chief a member of the Economic Coordination committee (ECC) which has brought the institution within the scope of economic policy.
Lastly, debates on civilian supremacy or lack of it are centred around the military’s increased decision making in political circles via legislative agenda and striking partnership with desired parties. This has meant that most conversation on Pakistan’s domestic and external affairs are dominated by a focus on the military’s role which could potentially be outlawed if this bill becomes an Act of the Parliament.
Perhaps, public accountability and sharpened criticism will eventually breathe its last if the bill is passed.
The writer is an LSE law graduate and tweets at @razanazar1