April 7, 2023
By Rehan Piracha
The Lahore High Court has held that loyalty to the state has to be distinguished from loyalty to the federal or provincial government whose offices are occupied by a political party and observed that nearly half of the population could be deemed guilty of seditious libel at any particular time.
In his detailed order of the March 30 judgment striking down the colonial-era Section 124-A of the Pakistan Penal Code relating to sedition, Justice Shahid Karim said not everyone will have a doctrinal affinity with a political party and must be free to express feelings of disaffection and estrangement towards its policies and programmes. 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 on March 30. Advocate Abuzar Salman Niazi had argued the petition filed by a citizen, Haroon Farooq.
“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,”
Justice Shahid wrote in his 48-page order.
The court 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 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, 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.
Section 124-A limits free press
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 the 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.
Sedition law repealed in colonies, Britain
The court observed that the sedition law was repealed in Britain and former colonies Australia and New Zealand as it limited the right of freedom of expression. “Thus, the courts in the United Kingdom did not limit free speech and in particular political speech relating to matters of public interest and did not suppress the candid, full and free discussion and criticism in relation to all political or party questions and all public acts of the servants of the Crown and limited the offence to an intention to incite the people to take the power into their own hands and to provoke them to tumult and disorder which was held to constitute seditious intention.”
The court also observed that a person could challenge a law if there is a potential for abuse of a provision mentioned in the criminal laws. “For, a person cannot be compelled to wait for his right to be infringed in order to bring a challenge to a particular provision in the law which in his opinion disregards a clear constitutional mandate,” reads the order.
Colonial law meant to suppress people’s voices
Justice Shahid Karim observed that section 124A is quintessentially a colonial law and has its genesis in colonial rule. The sedition law was enacted to perpetrate and entrench British rule in the subcontinent. “Sedition belongs to the species of offences which had no other purpose but suppression of people‟s voices by the colonial masters,” he said.
Parliament slow in repeal of sedition law
Unlike in modern democracies that have scrapped sedition laws, the court noted that the Parliament has not yet realised the urgency of repealing the colonial law. “Our Parliament has been slow in realizing the urgency of repealing the law of sedition and so it is for the courts to step up and protect constitutional rights of the citizens.”
Need to strengthen defamation laws
Reiterating that it was high time that the sedition law is repealed, the court called on the government to strengthen defamation laws to counter malicious speech and slander. “This will serve as a deterrence and help vindicate a person‟s sullied reputation if the speech or writing does not pursue a legitimate aim,” Justice Shahid Karim wrote in his order.