☰
Analysis: The defamation conundrum
• Experts say Punjab Defamation Act 2024, which seeks to ‘protect public office holders’ from fake news and malicious accusations, contains a litany of legal anomalies
• Civil society alliance terms it ‘authoritarian move’
• Joint Action Committee of media stakeholders to challenge the law before LHC
DUPLICATION of laws, vague definitions of terms such as ‘journalist’ and ‘newspaper’, the imposition of preliminary fines without a trial, and the exclusion of the umbrella of the law of evidence: these are just some of the glaring issues pointed out by critics of the Punjab Defamation Act 2024, which was steamrolled through the provincial legislature earlier this week, despite the protestations of media stakeholders, civil society and opposition parties.
Critics of the bill have already pointed out that in the presence of two legal instruments, i.e. the Defamation Ordinance of 2002 and the Punjab Defamation Act of 2012, it would have been better to amend existing laws rather than coming up with a whole new piece of legislation.
However, a closer inspection of the clauses and stipulations of the bill have led the law’s opponents to suspect more nefarious forces, which seek to throttle free speech and a free press, are at work.
“The government doesn’t realise that the chickens will come home to roost one day,” says PTI-backed MPA Ahmer Rasheed Bhatti, who was part of a 15-member select committee that was supposed to review the draft law and share its report with the Punjab Assembly next month.
However, the government did not wait for its feedback and tabled the bill for passage after it was recommended by the assembly’s Special Committee # 1 — formed to take up legislation in the absence of regular standing committees as a stopgap measure.
Mr Bhatti lists a litany of anomalies and flaws that may open the door for those in power to weaponise the law against critics and dissenters.
Private citizens VS public office holders
The bill’s statement of objects and reasons mentions that it “envisages protection from false, misleading and defamatory claims via print, electronic and social media against public officials and private citizens”, but critics say it is heavily tilted in favour of the former category.
“The explicit aim of the bill is to guard constitutional office bearers as well as private citizens against defamation, whereas its implicit objective appears to be to muzzle social media under the garb of protection against defamation,” MPA Bhatti observed.
Referring to the clause of ‘Constitutional Offices’, senior lawyer Asad Jamal said this seemed to have been created to protect public office holders from criticism, which was violative of Articles 19 and 175 of the Constitution.
The bill defines offices such as chairman joint chiefs of staff committee, the chief of the army staff, the chief of the naval staff and the chief of the air staff as “constitutional offices’’, something Mr Bhatti disputes.
He says these are not constitutional posts, but rather fall in the chapter of services in the Constitution.
But Advocate Khurram Chughtai argues that any office whose process of appointment is available in the Constitution can be considered a constitutional office.
Law of evidence
The exclusion of the bill from the umbrella of the Qanoon-i-Shahadat or law of evidence raises concerns about the evidentiary standards that will be applied to defamation cases heard under the new law.
The Qanoon-i-Shahadat prescribes the procedure and methods with regards to the recording of evidence of parties for the purpose of providing facts and documents to prove their claim, which also enable both sides to cross examine each other’s witnesses.
“The new bill suggests a private person can invoke this law without bringing any witnesses. Section 23, which says ‘Qanoon-i-Shahadat not to apply’ needs to be omitted as it breaches Article 8(2) of the Constitution,” MPA Bhatti asserts.
Supreme Court lawyer Safdar Shaheen Pirzada agrees. He believes that removing the latest bill from the umbrella of the law of evidence enables the special tribunal constituted under it to “hold summary trials”.
Mr Pirzada maintained that these would be a clear negation of the right to fair trial, as guaranteed under Article 10-A of the Constitution.
He argues that a trial on the basis of affidavits filed by the litigant parties, as is the practice in family law cases, cannot be seen as a fair trial since the defamation law entails penal consequences.
But Advocate Chughtai maintains that this way, any journalist could defend his/her report by simply submitting an affidavit, without disclosing the source of the news.
Tribunal
The Punjab Defamation Tribunal, which is to be constituted to take up cases instituted under the new law, has also been widely panned.
According to MPA Bhatti, the power to appoint the tribunal, which would hold the same status as a single-member bench of the Lahore High Court in cases where it was moved by a public office holder, lies in the hands of the provincial government.
Mr Jamal pointed out that the procedure of the constitution of tribunal was violative of the principles of independence of judiciary, as the role of appointment of the tribunal member, their removal and resignation have all been assigned to the government.
In addition, the differing procedures for private individuals and public office holders also raise questions over fairness.
Under the law, when dealing with complaints brought before it by private individuals, the tribunal would work normally.
But when it takes up complaints brought by public office holders — including armed forces chiefs and judges of the superior judiciary — it would be ‘interchanged’ with a single member LHC bench.
If the tribunal is supposed to be considered a bench of the LHC, then the member shall also be considered and treated as a judge of LHC, MPA Bhatti reasoned, saying that the current process was too arbitrary.
In addition, since the procedure for the appointment of a high court judge was already given by the Constitution, there was no justification to have a parallel system for picking the tribunal.
Mr Pirzada also opined that the appointment process of the tribunal laid out in the law “makes a mockery of the office of the Lahore High Court chief justice” by giving the government a controlling role.
Preliminary decree
Another unique aspect of the new law is the provision for a ‘preliminary decree’, which can be issued along with a fine of up to Rs3 million, without hearing the accused party.
Mr Jamal points out that this could be dangerous, as the tribunal would be able to impose a decree of Rs3 million in favour of the complainant immediately upon the filing of a complaint. “This seems a criminal defamation law as it imposes a serious punishment to begin with,” he said.
In the words of Mr Pirzada, the power to issue a preliminary decree amounts to the power to punish before a trial is held.
Silver lining?
Among the experts that Dawn spoke to, Advocate Khurram Chughtai was the only one who highlighted some positive aspects of the law, claiming that it would only be a threat to those “who spread lies and fake news in society”.
He argued that the law protects “real journalists and journalism”, adding that it includes mechanisms to address false claims.
“If enforced in true letter and spirit, this law could revolutionise the administration of justice,” he claimed.
Mr Chughtai said that while Punjab had previously adopted the Defamation Ordinance 2002, which was a federal law, and its amendment Act of 2012, it had the right to introduce additional laws alongside defamation to address the common issues faced by litigants following the passage of the 18th amendment.
Stakeholders’ reaction
Although media stakeholders and civil society have repeatedly pointed out flaws in the newly-passed law and urged the government to reconsider it, the demands seem to have fallen on deaf ears.
Consequently, on Tuesday, the Joint Action Committee (JAC) and a coalition of around 70 other media persons, civil society organisations and digital rights activists announced their rejection of the Punjab Defamation Bill 2024, calling it a ‘black law’ that grossly infringes the fundamental rights of freedom of expression and press freedom.
A statement issued jointly by the Pakistan Broadcasters Association, All Pakistan Newspapers Society, Council of Pakistan Newspaper Editors, Pakistan Federal Union of Journalists and the Association of Electronic Media Editors and News Directors announced that the JAC would challenge the law before the Lahore High Court.
It said the committee would establish contact with political parties, human rights organisations and other stakeholders and reserve the right to boycott coverage, stage protests and sit-ins to press for its demands.
The statement said that the JAC had repeatedly called for consultation with stakeholders on the bill, highlighting autocratic provisions in the draft law that were tantamount to placing restrictions on the freedom of the press.
It said that the suggestions shared with the government were ignored and the bill was passed by the Punjab Assembly in haste, reflecting the government’s mala fide intentions and true intentions behind the bill.
Another statement, signed by Bolo Bhi, Digital Rights Foundation, Institute for Research, Advocacy and Development, Media Matters for Democracy, Katalyst Labs, Lok Sujag, the Women’s Action Forum, Pakistan Press Foundation, Freedom Network, Progressive Students Collective, AGHS Legal Aid Cell, Voice.pk, and Centre for Social Justice etc, was also issued on Tuesday.
This statement highlighted how the bill is nothing short of an authoritarian maneuver, designed to shield those in power from accountability and scrutiny.
The bill’s provisions, such as allowing defamation actions to be initiated without proof of actual damage and imposing extortionate fines, amount to nothing less than legal intimidation tactics.
The statement also signed by veteran journalists including Mazhar Abbas and Nasir Zaidi, has highlighted that by replacing district courts with tribunals, the bill opens the door for undue interference.
It said that the bill’s broad definition of “journalists” and “newspapers” to include social media users sets a dangerous precedent for stifling freedom of expression online.
The signatories have requested the Punjab government to heed the voices of civil society and stakeholders and reverse this effort to pass another regressive legislation, akin to the Prevention of Electronic Crimes Act.
Kalbe Ali in Islamabad also contributed to this report
Published in Dawn, May 22nd, 2024
Read Comments