LHC puts provisions of Defamation Act on hold

LAHORE:

The Lahore High Court (LHC) on Tuesday temporarily suspended the enforcement of three sections of the recently enacted Defamation Act 2024 until a final verdict is reached on a petition challenging the constitutionality of the law.

Justice Amjad Rafiq ordered the suspension of Sections 3, 5, and 8 of the Defamation Act 2024.

The court also sought responses from the provincial government and other relevant parties, issuing notices to the attorney general and advocate general offices for assistance in the case.

The Punjab Assembly passed the Defamation Bill 2024 on May 20, rejecting all amendments proposed by the opposition amid protests by the PTI-backed Sunni Ittehad Council and journalists covering the parliamentary proceedings.

The law, criticised by journalists, civil
society organisations, and the opposition, quickly faced legal challenges when two journalists filed a joint petition contesting its legality.

The petitioners’ counsel requested that the LHC suspend the “operation” of the defamation bill.

Section 3 of the Defamation Act 2024 states, “subject to the provisions of this Act and any other law for the time being in force, defamation shall be a civil wrong and the person defamed may initiate an action under this Act without proof of actual damage or loss and, where defamation is proved, General Damages shall be presumed to have been suffered by the person defamed.”

Section 5 declares, “any publication of statement made in the federal or provincial Legislatures, reports, papers, notes and proceedings ordered to be published by either House of the Parliament or by the Provincial Assemblies, or is part of judicial proceedings or record or any report, note or matter written or published by or under the authority of the Government, shall have the protection of absolute privilege.”

Section 8 states, “the Government may, by notification in the official Gazette, establish as many Tribunals as it considers necessary to exercise jurisdiction under this Act and appoint a Member for each of such Tribunals and, where it establishes more Tribunals than one, it shall specify in the notification the territorial limits within which each of such Tribunals shall exercise its respective jurisdiction under this Act.”

Proceedings

During Tuesday’s proceedings, the petitioner’s counsel argued that the act infringes on freedom of speech and judicial independence.

He claimed that under this act, the chief justice could propose three judges for a tribunal, and the government could reject them and seek more names, challenging the notion that the chief justice’s proposal could not be overruled.

At one point, Justice Rafiq inquired how the act violates basic human rights. The petitioners’ counsel responded that the law allows proceedings to be initiated without any proof.

‘Draconian law’

Petitioners Jaffar Ahmad Yar and Riaz Ahamad Raja filed this petition through advocates Shahbaz Akmal Jandran and Nadeem Sarwar requesting the court to suspend the operation of this Ordinance till the final decision of this petition.

They contended that the defamation bill 2024 was signed by the acting governor Malik Muhammad Ahmad Khan in unusual haste, despite significant concerns from the journalist fraternity, human rights organisations and opposition legislators.

The petition implored that a bill awaiting the governor’s assent and finally being signed by the acting governor could be termed a “draconian law and an authoritarian move”.

The definition terms such as ‘journalist’ and ‘newspaper’ as provided under the law are vague, irrational and ambiguous. Section 3 of the Act which provides for the initiation of defamation claims without any proof is violative of Article 10-A and the principle of law of evidence.

The petition further stated that it was “ridiculous, unconstitutional and unlawful to allow a person to bring a claim of defamation without any proof”.

“That section 4 which provide absolute privilege to any publication of statement made in federal and provincial legislature, reports, papers and ordered to be published by the either house of the parliament or by the provincial assemblies, or matter written or published by or under the authority of the government, shall have the protection of absolute privilege. The protection and privilege granted under section 4 are violative of equality clause (Article 25),” it read.

It further stated that the Punjab defamation tribunal created under section 8 of the act, which is to be constituted to take up cases instituted under the new law, has also been widely panned and rightly so.

The power to appoint the tribunal, which would hold the same status as a single-member bench of the LHC in cases where it was moved by a public office holder, lies in the hands of the provincial government.

The procedure of the constitution of the 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, impartiality, transparency, and the equality clause of the constitution which guarantees equality before the law.

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 it would be ‘interchanged’ with a single member LHC bench, the petition stated.

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 the LHC. 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.

The petition further stated that conferring original jurisdiction upon the high court for the purpose of defamation claims is violative of the Constitution.

Section 11 of the Act which exempts the appearance of a holder of constitutional office “is violative of Article 10-A, 25 of the Constitution of the Islamic Republic of Pakistan and Qanun Shahadat Order,” it stated.

The petition went on to argue that section 12 which restricts the parties to the proceeding to make any statement during the pending proceeding is ultra vires to Articles 19 and 19-A of the Constitution of the Islamic Republic of Pakistan 1973. Further, the prohibition of fair comments even made in good faith and in the public interest also falls afoul of constitutional provisions and rights guaranteed thereunder.

The petition stated that another unique aspect of the new law is the provision for a ‘preliminary decree’ provided under section 13 which can be issued along with a fine without hearing the accused party. “This seems a criminal defamation law as it imposes a serious punishment to begin with. In other words, the power to issue a preliminary decree amounts to the power to punish before a trial is held.”

“Section 15 which restricts the high court to stay the execution of a preliminary decree amounts to taking away the judicial power of a court which is set up within the constitutional framework.”

“That section 17 offends the settled principle Qanun Shahadat Order which makes reputation a fact relevant to the case. That section 21 of the Act which provides for penalty blocking social media accounts or any other media or platform covered under this Act is against Article 18 of the constitution since social media is a source of earning for many people and absolute blockage is unconstitutional. Further, it violates the principle of reasonableness and proportionality.”

The exclusion of the Act under section 23 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 regard to the recording of evidence of parties for the purpose of providing facts and documents to prove their claim, which also enables both sides to cross-examine each other’s witnesses.

The new Act 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), 10-A, and 25 of the Constitution.