The exclusion of the bill from the ambit of the Qanoon-i-Shahadat, or the law of evidence, raises serious concerns about the standards of proof that will be applied in defamation cases under the new law. Section 23 of the new bill, which states that ‘Qanoon-i-Shahadat shall not apply’ needs to be omitted forthwith because it breaches Article 8(2) of the 1973 Constitution of Pakistan.
Not to mention that with a dangerously loose definition of defamation, much higher fines and blanket restrictions on commenting on ongoing proceedings, the law appears to have been written with the sole aim of instilling fear in anyone who might think of criticizing or venting frustration with those currently in power. Although a defamation tribunal has been granted jurisdiction under the new law, cases against the holders of the Constitutional Office are to be filed in the Lahore High Court.
This inequality indicates that the grievances of the state and its citizens do not have equal status before the law. As the former is given priority over the latter. Worse still, the law was passed without seeking the opinion of civil society, journalists’ unions, or even the political opposition.
A May 2024 country report on Pakistan released by the International Federation of Journalists is as telling as it is appalling. It says: “Over 300 journalists and bloggers were affected this year (2023-24) by state coercion and targeted, including dozens of arrested journalists and nearly 60 served with legal notices or summons for their journalism work or personal dissent online. At least eight were charged for alleged sedition, terrorism and incitement to violence; all serious charges carrying lengthy sentences and even the death penalty.”
At present, the situation in Pakistan is alarming which requires collaboration between the government, technology companies, the news and media industry, educational institutions and individuals, adopting a set of standardized practices.
The world is complex and rapidly changing, which creates anger and anxiety among people who have to try to make sense of it. A healthy network of journalists free from external interference serves to alleviate such concerns, offering clarity and fostering trust within society. When journalists face criminal charges, their reputation is damaged, fueling even greater distrust between them and the public they are meant to inform and serve.
Thus, as long as this issue is only discussed in private circles, journalists will be targeted with impunity in the country. A broad understanding of the nature of these risks, the available support – and the gaps in that support – are essential to protecting media freedoms, the cornerstone of democracy in Pakistan.
Additionally, it is pertinent to mention that in today’s day and age, there is a growing need for greater legal expertise to protect media practitioners and combat the increasing array of traditional and non-traditional threats they continuously encounter. Both Articles 4(2)(a) and 14(1) of the Constitution of Pakistan protect the reputation and dignity of individuals, while Article 19 guarantees freedom of expression “subject to any reasonable restriction.”
These restrictions must, however, be interpreted in a manner to avoid infringing the fundamental rights they are intended to protect. In Pakistan, civil defamation laws often exploit this principle, being drafted in overly vague terms that make a wide range of statements actionable for defamation claims.
More importantly, political dissent involves disagreement, criticism, or protests against coercive decisions and unjust laws. By taking risks to criticize repressive governments or the powerful, journalists, poets and writers work towards the freedom of the oppressed. Engaging peacefully with these dissenting voices is constructive and leads to the strengthening of democratic principles, the redress of injustices, and drives social transformation.
Throughout the ages, the pen and the sword have stood as fierce adversaries. The sword demands total obedience; the pen – abducted, tortured and constrained – refuses to oblige, sometimes even to the point of death. The outcome of this duel was, once and for all, immortalized by the esteemed playwright and novelist Edward Lytton, in his political masterpiece “Richelieu.” with the catchphrase: “The pen is mightier than the sword”.
This was the case in times of greatest oppression and make no mistake this will be the case in all future tyrannies. An immutable force of hope and defiance, destined to inspire generations to come.
Therefore, any future attempts to tackle misinformation and hate speech on online platforms should be launched through inclusive consultations at the national level. The Judicial Activism Panel (JAP), a self-proclaimed public interest forum based in Lahore, has also urged the Punjab government to reconsider the recently passed Defamation Bill, 2024, terming it “draconian, illogical and a violation of the judgments of the superior courts.”
Surely, we have seen in the past how the real perpetrators of fake news and hate speech operate unchecked while those who are committed to telling the truth find themselves shackled by the heavy chains of defamation laws. It is therefore entirely justified that civil society organizations describe the new law as “draconian” and a “restriction on free media”. Collectively, we must stop the democratic deficit caused by failing our journalists by threatening their freedom – and in doing so – extinguishing free speech.
However, this does not mean advocating for unfettered freedom of expression. Instead, what matters is that laws regulating it should be inclusive. They should be designed with due regard to constitutional obligations to guarantee freedom of expression in Pakistan in years to come.