IN PLD 2016 SC 692, the Supreme Court held that “the concept of freedom of media is based on the premise that the widest possible dissemination of information from diverse and antagonistic sources is sine qua non to the welfare of the people”. It seems that the federal cabinet has ignored such wisdom when it recently directed Pemra to ban all broadcast interviews of undertrial or convicted politicians. But can such a directive even be issued under the law?

While Section 5 of the Pemra Ordinance gives the federal government the right to issue binding directives to Pemra on issues of policy, a nexus between these directives and the authority’s power to prohibit broadcasts under Section 27(a) is tenuous at best.

In fact, the last caretaker government tried to rectify this problem through the Pemra (Amendment) Ordinance, 2018, amending Section 5 to allow the government to issue directives to Pemra to block content under the restrictions provided by Article 19 of the Constitution. However, this ordinance was never confirmed by the present parliament and has therefore lapsed. Thus, it can be argued that the government’s power to issue directives under Section 5 cannot be used to direct Pemra to block content under Section 27(a) because parliament never intended for the government to have any such power.

Only parliament can legislate the limits of free speech.

Secondly, can Pemra, a federal executive body, form an opinion and restrict content under Section 27(a) if it believes the content “is against the ideology of Pakistan or is likely to create hatred among the people or is prejudicial to the maintenance of law and order or is likely to disturb public peace and tranquillity or endangers national security or is pornographic, obscene or vulgar or is offensive to the commonly accepted standards of decency”? I would argue ‘no’. This is because reasonable restrictions to free speech enumerated under Article 19 are not self-executing provisions. In PLD 1992 SC 595, the Supreme Court defined the test for identifying such provisions:

“Constitutional provisions are not self-executing if they merely indicate a line of policy or principles, without applying the means by which such policy or principles are to be carried into effect, or if the language of the Constitution is directed to the legislature, or it appears from the language used and the circumstances of its adoption that subsequent legislation was contemplated to carry it into effect.”

When one reads the entirety of Article 19, which provides for the right to freedom of speech and expression, it is clear that the constitutional provision is divided into two parts. The first guarantees the right to freedom of speech and expression for every citizen. This part is self-executing as all fundamental rights in our Constitution usually are. The next part, however, lays down that this right is “subject to any reasonable restrictions imposed by law” under seven enumerated subject headings. The use of the words “by law” makes it clear that this part is not self-executing, as parliament is the only institution as per our constitutional scheme empowered to make law.

Thus, for true adherence to our constitutional legal framework, it should be parliament, not the federal government or Pemra, that interprets and legislates what should be reasonable restrictions on our free speech “in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, commission of or incitement to an offence”.

Lastly, can parliament delegate such an important legislative function to the executive? Quite simply, no. In Pakistan Tobacco Company vs Government of NWFP (PLD 2002 SC 460), the apex court held that the legislature cannot delegate essential legislative functions to the executive, especially without providing guiding principles. This is the very essence of a democratic political system; any substantive restrictions by law to limit the exercise of the fundamental rights, especially content-based restrictions on the right to free speech, must necessarily be made by our elected parliament through legislation.

Parliament makes, the executive enforces and the courts interpret law: that is how our Constitution has divided the powers of the state — and it is time we pay heed to its wisdom.

Thus, there is an urgent need for our constitutional courts to interpret Article 19 in a holistic and comprehensive manner that is in line with our constitutional ethos and the constitutional principles that have been established by our courts over the course of our history. One would hope that our courts seize the opportunity with this current illegal decision of the federal cabinet to make a historic ruling so that our speech remains free and protected.

The writer is a human rights lawyer working at the Law and Policy Chambers in Islamabad.

omerimranmalik@gmail.com

Published in Dawn, July 14th, 2019