The writer is a lawyer based in Lahore and also teaches Constitutional Law at University College Lahore. He holds an LLM from New York University where he was a Hauser Global Scholar. He tweets @HNiaziii
On October 11, the Government of Pakistan took another step to undermine free speech. By placing one of the country’s leading journalists on the Exit Control List (ECL) it exposed its offhand treatment of a constitutional guarantee. A guarantee provided to the press to speak without fear, write without a trembling hand and to inform without sanction.
Placing a journalist on the ECL is a coercive measure aimed at gagging free speech. The argument by the government, that the speech is false or misinformed, should not matter. The constitutional guarantee of free speech gives an extraordinary amount of leeway to the press. As it should, since the press functions as one of the main voices that provides scrutiny of public figures and brings information to the public. If the government were to make a rule that critics of official conduct must guarantee the truth of all their assertions, this would lead to self-censorship in the press. This is the exact position taken on this issue by the Supreme Court of the US in New York Times vs Sullivan. No country should create a scenario where its journalists live in constant fear of the consequences of the stories they publish regarding official actions.
Public officials, after all, enjoy greater access to the avenues of effective communication, and thus, have a more realistic opportunity to counteract false statements. What then justifies the actions of the Federal Government? They could easily have rebutted the statements made by Mr Almeida by releasing an official statement to the media. One can safely assume that having the credibility of your publication challenged would be sanction enough for any journalist. The ECL was an unnecessary draconian step.
The Federal Government is no doubt hell-bent on discerning the source of Mr Almeida’s information. Journalism, however, has as its core the protection of confidential sources of information. No journalist would ever freely disclose this. In any case, as long as the information was obtained through lawful means, a journalist cannot be punished. This was the stance taken by the Supreme Court of the US in Florida Star vs BJF.
The entire crux of these mechanisms for the protection of speech is to curb the press from having to act as a censor of itself. To prevent a constant second-guessing of journalists regarding what to write. Our country can learn much from the expansive protection of speech given to journalists in the US and the rest of the world.
Yet, instead of learning, we constantly fail. Every institution fails. Our Parliament recently failed the constitutional guarantee of free speech through the enactment of the Prevention of Electronic Crimes Act, 2016. The Act makes numerous instances of speech penal offences without distinguishing public and private figures. This attacks the very essence of free speech: the ability to criticise public officials. It makes no exceptions for journalists. A wealth of journalism, from satire to investigative, will erode in the face of such enactments.
Our failure doesn’t just end with Parliament. Our courts have never been good at protecting journalists. The spectre of contempt of court hangs like a noose over the head of journalists. Like Medusa’s glare it petrifies speech that attempts to stare into the eyes of the judiciary and criticise it.
Mr Almeida’s case shows the failure of the executive branch. The Federal Government may perhaps feel it is justified in its actions, but the long term implications of what it has done have not been thought through. What effect will this have on journalism in the country? Prior to this, we could at the very least, take pride in an independent and courageous media. Now, however, if journalists are made to believe that they must guarantee the truth of each and every assertion they might think twice before putting ink on paper.
The concept of the ‘marketplace of ideas’ asks us to believe that the truth will emerge through the proliferation of ideas, not through repressing them or sanctioning individuals-especially journalists. Every institution of government needs to start appreciating that repression of speech has a cost. Why should the people value the constitution if the government discards it at the slightest provocation?
As Alexander Meiklejohn said, “to be afraid of ideas, any idea, is to be unfit for self-government.” If any of our public officers fear the press, they are essentially unfit for government, because they are afraid of the essence of democracy. That essence lies in free speech. It lies with people like Cyril Almeida.
Published in The Express Tribune, October 27th, 2016.
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