LAHORE: The Lahore High Court has ruled that loyalty to the state has to be distinguished from loyalty to the government whose offices are being occupied by a political party as not everyone will have doctrinal affinity with a ruling party and, therefore, must be free to express feelings of disaffection towards its policies.

“Why should a citizen or a member of the press be charged with sedition for expressing hatred, contempt or disaffection towards a federal or provincial government?” Justice Shahid Karim poses a query in his 48-page detailed judgement against the offence of sedition under Section 124-A of the Pakistan Penal Code (PPC) 1860.

Through a short order issued on March 30, the judge had allowed a public interest petition and struck down the Section 124-A for being repugnant to the fundamental rights of the citizens protected in the Constitution.

Issues detailed judgement against offence of sedition

Advocate Abuzar Salman Niazi had argued the petition filed by a citizen, Haroon Farooq.

Giving reasons in his detailed verdict, Justice Karim observed: “As human beings we are all susceptible to showing such emotions at some point or the other and to curb them is to make robots out of the citizens of Pakistan.”

The judge maintained that the people of this country are the masters and the holders of offices of the government are the public servants. He said there are three key words used in the Section 124-A — contempt, hatred and disaffection.

The judge explained that at a given time and in a particular case, strong feelings of disapproval may go unnoticed yet in another case and under different circumstances, lesser feelings of disapproval would be enough to attract the offence.

“In the ultimate analysis the decision to prosecute depends on who wields the authority,” he added.

The judge observed that “disinfection” is absence of affection or goodwill and it is inconceivable that such a mild sentiment will attract offence. He said there is virtually no affection amongst the political opponents and so anything they utter will attract Section 124-A in its present form.

Taken in its present form, the Section 124-A demands allegiance and loyalty by all opposition parties, their members, by the citizens and members of the press towards the federal or provincial governments of the day, Justice Karim observed.

He pointed out that disloyalty and feelings of enmity have also been included in the expression of disaffection. This means that any political opponents or a citizen holding loyalty to a different political group will be committing an offence by doing so.

The judge said a citizen will, by necessary implication, be disloyal to the federal or provincial government in power and “this is antithetical to the very concept of democracy and constitutionalism”.

He said at any particular moment, nearly half of the population will be guilty of the offence of seditious libel.

Justice Karim further observed that the offence of sedition could also be used against the press, its editors, etc, as it infringes the right of a free press to publish freely what is necessary to do so in order to inform the public which has a right to know and be informed in order to make a more informed decision regarding political matters.

“The existence of free press therefore is an essential element in a constitutional democracy and rule of law,” he ruled. He said the offence of sedition in Section 124-A travels beyond the limitation placed by Article 19 of the Constitution regarding role of press and its freedom, which must not be abridged on the misplaced notion that the government of the day can suppress political speech at will.

Justice Karim declared that if Section 124-A was allowed to stand in its present form, the media and the press would also be caught by its mischief and contrary to its role of informing the general public regarding issues of a political nature will be shackled by its ability to do so by the provisions of the impugned section, which would pose a constant threat to a free press to write freely and to dispense information without any fear of prosecution.

Published in Dawn, April 7th, 2023