Decriminalizing Defamation; Freedom Of Expression Under Threat In Pakistan

Decriminalizing Defamation; Freedom Of Expression Under Threat In Pakistan
On 22 January 2021, three United Nations Special Procedures mandate holders sent an Allegation Letter (AL PAK 2/2021) to the State of Pakistan, regarding “a series of alleged meritless charges brought against a number of independent journalists and human rights defenders, which appears to show an alarming pattern of restrictions to the right to freedom of expression of journalists in Pakistan”. Out of the eleven cases flagged in the communication, nine cases highlighted by the UN Special Procedures related to illegal conduct on the part of the Federal Investigation Agency (FIA).

Despite the clear directions of the Honourable Islamabad High Court in the Arshad Sulehri judgment, the FIA has neither framed guidelines for investigating officers, nor have they ceased their blatantly illegal practice of issuing notices, threatening adverse action without even sharing a copy of the complaint with the person they are summoning. Recently, after journalist Asad Ali Toor was attacked in his home in the Federal Capital, another undated and unlawful notice was issued to him via multiple unknown numbers on WhatsApp, along with abuse and threats. After the notice had been shared with Asad - not by the FIA but by persons to whom the FIA evidently leaked the notice - an official from the FIA had the audacity to message Asad asking him if he had received the notice (despite the fact that the official asking had not sent the notice himself).

After this illegal notice was suspended by the Islamabad High Court, another undated and vague notice was sent to another journalist, Bilal Ghauri. The notice stipulated: “Reportedly, you are well aware of the facts/circumstances of the subject matter.” This is a standard and patently illegal phrase that the FIA feels is appropriate to insert in a notice for attendance under Section 160 of the Criminal Procedure Code. Adverse action is threatened but the notice itself does not even disclose what the facts of the case are, or what the substance of the complaint is.

It is baffling how this practice of the FIA is allowed to continue, resulting in journalists running from pillar to post to approach the courts, fearing arrest or criminal action against them. This is the environment in which journalists are expected to perform their duties independently and without fear. This environment has actively been created and fostered by the FIA itself, as a proxy for influential government officials and intelligence agencies. The draconian PECA continues to embolden them in committing these illegalities, in flagrant breach of Constitutionally safeguarded fundamental rights.

In fact, PECA and the FIA are the vehicles through which Strategic Litigation against Public Participation (SLAPP) is ensured. The UN Special Procedures, in their letter to Pakistan, highlighted how “the use of meritless lawsuits against journalists and human rights defenders… appears to be aimed at curtailing publication of information, particularly when such information may be deemed to be critical of public officials and in the public interest”.

Perhaps the clearest indication of the actual purpose for which PECA was brought in can be seen in the FIA’s contrasting practice in the KU professor case and the speed and dedication at which the FIA proceeds in cases against journalists (or cases filed by alleged harassers). In the former, the FIA acted after a fourth complaint was made to them and “lost” the case file. As Farieha Aziz wrote in an article on the issue: “Throughout, the complainant had to rely on pro bono, legal help by private counsels even though this is a cognizable case and the state is a party. This is because the FIA failed to guide and assist her (complainant). To the extent that initially they did not even bother to tell her about hearings in the case knowing full well she had sought help from private counsel. They did not give her or her counsels a copy of the file though both were on the same side and ultimately “lost” it.”

Compare the above with the speed at which notices were issued repeatedly to Bilal Ghauri, Asad Toor and other journalists without conducting any preliminary enquiry into the complaints registered against them. In fact, the mala fide of the FIA can be seen in the notices it sends regularly concerning “defamation of government/state institutions”. Under Section 20, PECA, only a “natural person” can be aggrieved. The fact is that only those willing to turn a blind eye would believe that the authority responsible for investigating and prosecuting the offenses under PECA itself does not even understand the basic language of the law. The reality is a lot more grim: it is not that they do not understand the law but believe they have unfettered discretion to threaten, intimidate and harass people at the behest of the deep State. 

The time has come for Parliament to take stock of the FIA’s illegal, arbitrary and discriminatory practices under PECA, and either amend PECA or repeal Section 20 of the same. Civil and criminal defamation were already part and parcel of our law prior to enactment of PECA; so the question arises: What was the need for Section 20, PECA other than providing the FIA with legal authorization to suppress dissent? This becomes even more evident when one reads the language of Section 20, which is distinct from Section 499 of the Penal Code. The latter contains ten exceptions to the criminal offence of defamation, including imputation of truth which public good requires to be made or published, conduct of any person touching any public question, etc. These safeguards have not been provided in Section 20, PECA.

In any case, more and more countries around the world are recognizing the need to decriminalize defamation in light of the importance of the right to freedom of expression, which is under threat globally. Zimbabwe, Lesotho, Sierra Leone, Kenya, the UK, Ireland, Malta, Romania, Montenegro and several other states have in the recent past either decriminalized defamation or had the same struck down by Constitutional courts. In Pakistan, where journalists and dissidents are routinely silenced, there is an even more pressing need to decriminalize defamation.