Though politicians and journalists are the main victims of sedition charges, the federal government has defended Section 124-A of the Pakistan Penal Code-1860 by saying that ‘the section imposed a valid restriction to free speech as long as any spoken or written words have the intention or tendency to create disorder or disturb public peace by resorting to violence against the respective governments”.
Abuzar Salman Niazi advocate is arguing the case on behalf of the petitioner. Interestingly, a similar provision was suspended by the Supreme Court of India.
According to Niazi, Section 124-A is opposed to the preamble of the Constitution, which commands that sovereignty over Pakistan on behalf of Allah belongs to the people of Pakistan.
“This notion asserts the paramountcy of the people’s will over everything. The elected representatives are nothing but the mediums through which the collective will of the people is expressed, asserted and executed. The people possess the authority not only to change the existing government but to alter the Constitution itself.”
“Interestingly, the Supreme Court of India in the Vombatkere case (2022) granted a status quo order with respect to the enforcement of Section 124-A of the Indian Penal Code,” he adds.
The ministries of law as well as human rights have submitted their replies in the Lahore High Court which is hearing a petition challenging the vires of Section 124-A of the Pakistan Penal Code, 1860 being inconsistent with and in derogation of fundamental rights provided under articles, 9,14,15,16,17, 19 and 19-A of Constitution.
The law ministry states that it is a well-established fact that the right of freedom of speech under Article 19 of the Constitution is not an absolute and unfettered right but is subject to reasonable restriction imposed by law 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 offeņce.
The ministry further states that Section 124-A of the Pakistan Penal Code, 1860, imposed a valid restriction to free speech as long as when any spoken or written words have the intention or tendency to create The subject matter falls within the domain of Ministry of Interior which has been impleaded as necessary party in the petition. existing law and Article 268(1) of the Constitution of Pakistan, 1973 empowers the legislature only, to adopt, alter, repeal or amend all existing laws.
"Under Article 142(b) of the Constitution of Pakistan, 1973, only the parliament and a provincial assembly have power to make legislation with respect to criminal law, criminal procedure and evidence.”
It is further submitted that the law ministry performs its functions strictly in accordance with the Rules of Business, 1973, by vetting the draft of proposed law on the reference received from the concerned ministry/division.
The law ministry also submitted that the political parties/MNAS have a remedy and may raise the matter in the Parliament for amendment in law. "By entertaining the titled petition, this Court would be transgressing upon the power and jurisdiction of the Parliament." The Islamabad High Court, Islamabad has already dismissed an identical case filed by Shireen Mazari with the direction that the petitioner may raise the matter in the Majlis-e-Shoora (parliament) through the chosen representatives belonging to Pakistan Tehreek-e- Insaf.
It is further submitted that parliament is competent to make a law and impose reasonable restrictions on freedom of speech and expression especially when it intends to incite violence and the same can be regulated through law by parliament.
"Thus, the criminal provision of sedition is constitutionally valid and is not in conflict with the right of freedom of speech under Article 19 of the Constitution or any other fundamental rights, as the State may restrict speech in the interest of protecting public order, says the reply.
Meanwhile, the Ministry of Human Rights in its reply states that Article 19 of the Constitution guarantees the right to free speech and expression subject to reasonable restrictions imposed by law in the interest of the integrity, security or defence of the country, public order, decency or morality, etc.
"The International Covenant on Civil and Political Rights (ICCPR) also bars the freedom of speech if it infringes the public morality and order. Article 19 (3) of the ICCPR also permits states for imposition of restrictions under the law and necessity. Such necessities include, respect and reputation of others, protection of national security or of public order or of public health or morals.
"Section 124-A of PPC only restricts the element of hatred, contempt or disaffection towards the governments and is in accordance with the restrictions provided for in Article 19 of the Constitution of Pakistan and international conventions."
Meanwhile, PPP Senator Mian Raza Rabbani has said that the arrest of Fawad Chaudhry under allegation of Section 124A, PPC, 1860, for sedition was ‘unwarranted’.
"My Private Members Bill for deletion of section 124A, PPC, 1860, was passed by the Senate of Pakistan on 9th of July, 2021, but the said Bill has deliberately been lost in the National Assembly.”
“It is a matter of history that charges of treason and sedition are only leveled levied against politicians and civilians. It is a matter of fact that the Lahore High Court quashed the proceedings of the Special Court in the matter of high treason charges under Article 6 of the Constitution against former military ruler Pervez Musharraf," says the statement issued by PPP senator.
"The government will be better advised to refrain from prosecuting under such sections,” he said and added, “The government should also, on its own motion, give Notice of my private member Bill for the deletion of section 124A, PPC which is lying dormant in the National Assembly."
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