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“Most Cherished Human Right”; IHC Judgment Endorses Freedom Of Press

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In recent days, there has been an alarming increase in instances of high-handedness against journalists in Pakistan. Journalists have gone missing and FIRs have been registered against some because they posted tweets which were allegedly against national interest.

Even if we are to assume that a mere social media post can cause nation-wide unrest (unlikely to happen), this does not entail that legal recourse relating to fair trial, due process and fairness can be dispensed with. A thorough, fair and impartial investigation into any alleged offence has to be conducted by an investigating officer. After all, a mere suspicion or allegation is not equivalent to conviction.

In this regard, the Constitution of the Islamic Republic of Pakistan guarantees certain freedoms to its citizens. Freedoms such as freedom of speech and expression are enshrined in the Constitution in order to ensure citizens of Pakistan live a life as free thinking individuals who can safeguard their legit socio-economic interests. The Constitution is not mere words and sentences written for joy reading. It is a solemn, social contract between the State and the citizens. Perhaps, it can be said that the Constitution is like any other agreement which two parties create in order to secure their mutual rights and obligations.

In case of breach of such an agreement, either party is at liberty to enforce its rights as per the agreement. Similarly, the Constitution of Pakistan guarantees certain rights and obligations for its citizens. Where those rights of citizens are being violated, citizens are at liberty to pursue their legal remedies in judicial forums. On the other hand, the citizens are also expected to act in accordance with law. However, this does not entail that the State can act in an arbitrary manner and with an iron fist. Even if a citizen is accused of a crime, due process and fair trial has to be strictly adhered to in accordance with Article 10A.

In this context, the Islamabad High Court has recently delivered a remarkable judgment in the case of Rana Muhammad Arshad v. Federation of Pakistan. The judgment has been authored by Honorable Chief Justice Athar Minallah. At the outset, the Honorable Chief Justice stated that a journalist performs the important duty of informing public on matters of public importance. In the case, the Petitioner, a journalist, was summoned by the Federal Investigation Agency (FIA) and was served an undated notice. The notice also did not state the reasons for his summon. The Petitioner alleged that his house was raided with intent of his arrest due to his critical reporting. The Court noted that the raid in his house was in haste and done recklessly especially when the FIA could not satisfy the Court as to what offence the Petitioner had committed. The Court noted that an investigation officer should properly disclose sufficient information in the notice so that a person knows the reasons for being summoned.

The investigation officers are bound to act in accordance with law and fairness. They have authority to exercise coercion but not in an arbitrary and reckless manner. The Honorable Chief Justice recognized the importance which journalists have in a society. It is their job to disseminate information to the public. But, an environment of fear results in undermining the independence of the press. The Honorable Chief Justice with reference to Articles 19 and Article 19A of the Constitution eloquently wrote: “Freedom of speech and expression is the most cherished human right and fortifies the other constitutionally guaranteed rights.” He further wrote that freedom of press entails accountability of the powerful segments of the society and creates a check and balance on the State. The Chief Justice noted that the Prevention of Electronic Crimes Act (PECA), 2016 is being misused by authorities in Pakistan. Finally, the Court gave directions to the FIA that it must formulate guidelines for the investigating officers, that the PECA 2016 should not be used in a coercive manner. The Federal Government may consider legislating a law for protection of journalists and may consult key stakeholders to address the general concerns of journalists and specific concerns with regards to PECA 2016. Indeed this is an important judgment which will advance the concerns of journalists and the press and thereby enable protection of rights of the citizens of Pakistan under Articles 19 and 19A of the Constitution.

I conclude by recalling Oliver Wendell Holmes Jr. and his theorization of the “marketplace of ideas”. It is a market where individuals are granted freedom of speech and expression and from this freedom, truth eventually emerges. If such a marketplace does exist in Pakistan, it seems to be in control and domination of monopolies and cartels. Maybe, it is time to effectively regulate this market place of ideas in order to break the monopolies and ensure that information by the press is disseminated to the public without fear.

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Naya Daur