7 April 2023 11:04 AM GMT
Finding SEDITION LAW to be in significant tension with constitutionalism and constitutional democracy, Pakistan's Lahore High Court last week invalidated Section 124A of the Pakistan Penal Code which pertains to the crime of sedition or inciting “disaffection” against the government. While holding so, Justice Shahid Karim underscored that Loyalty to the state has to be distinguished...
Finding SEDITION LAW to be in significant tension with constitutionalism and constitutional democracy, Pakistan's Lahore High Court last week invalidated Section 124A of the Pakistan Penal Code which pertains to the crime of sedition or inciting “disaffection” against the government.
While holding so, Justice Shahid Karim underscored that Loyalty to the state has to be distinguished from loyalty to the Federal Government whose offices are being occupied by a political party.
"We cannot define freedom of speech as freedom to say what is welcome by authority...Section 124-A, at first blush, stitches together loose language to support the offence of sedition or seditious libel. It seems that the provision is intended to wreak revenge on a political dissenter so widely worded is the tenor of Section 124-A."
In categorical terms, the High Court observed that since Pakistan's Parliament had been slow in realizing the urgency of repealing the law of sedition, and so, it is for the courts to step up and protect the constitutional rights of the citizens. In this regard, the Court also took note of the May 2022 decision of the Supreme Court of India putting in abeyance India's sedition law.
The Court made these observations while dealing with a batch of petitions seeking to annul Section 124A of the PPC on the ground that the law was being by the Governments in powers against their rivals.
In its 46-page order, the Court stressed the need for the press, media, and the common man in a democratic polity to be free in communicating their belief, thoughts, and emotions at large. The Court also opined that the duty of the press and media, which an essential element in a constitutional democracy and rule of law, regarding the dissemination of information is thrown into jeopardy by the provisions of section 124-A.
"...why should a citizen or a member of press be charged with sedition for expressing hatred, contempt or disaffection towards a Federal or Provincial Government? 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"
Referring to the Pakistani Constitution's preamble, that makes a clarion call to the people of Pakistan regarding their dedication to the preservation of democracy. the HC said that the same can only be achieved by raising voices against oppression and tyranny and such voices, the Court added, cannot be suppressed or stifled by the provisions of section 124-A.
Tracing Sedition law's history to the colonial time, the HC noted that the law belongs to the species of offences which had no other purpose but suppression of people‟s voices by the colonial masters and the provision is intended to wreak revenge on a political dissenter.
In High Court's order, much emphasis has been laid upon the need to achieve the objectives of the Right to Freedom of Speech & Expression as guaranteed under Article 19 of the Constitution of Pakistan.
The order states that in Pakistan's constitutional democracy, the right to freedom of speech and expression is the most cherished right and there cannot be an abridgement of speech unless it falls within the strict confines of the exceptions to Article 19 of the Constitution.
However, the Court goes on note that the Sedition offence makes serious inroads into the right of freedom of speech and of the press as Section 124A PPC gives wide leeway to a Government, the offence restricts spoken and written words both by the people and the press.
"This impacts the people in a number of ways. On the one hand they are placed under threat of the unstructured discretion of a police officer and on the other, they are enjoined to receive restrictive information at the whims of the Government. Thereby, the right granted by Article 19-A is also infringed," the Court held
The Court also observed that the provision seriously dents the right to publish freely by the press and to impart information through different platforms used by media as any writings on political issues or discourse on matters of public importance may be caught by the mischief of S.124-A and would have the unpalatable effect of inhibiting free press.
The Court observed that if section 124-A were 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, it will be shackled by its ability to do so by the provisions of section 124-A which would pose a constant threat to a free press to write freely and to dispense information without any fear of prosecution.
Significantly, while taking into account three key words used in Section 124-A — contempt, hatred and disaffection, the Court observed that the word 'disinfection' is the absence of affection or goodwill and it is inconceivable that such a mild sentiment will attract offence.
The Court added that is virtually no affection amongst the political opponents and so anything they utter will attract Section 124-A in its present form. Interestingly, the Court opined that any political opponent or a citizen holding loyalty to a different political group (other than the one in power) will be committing the offence of Sedition.
"Taken in its present form, S. 124-A demands allegiance and loyalty by all opposition parties and their members by the citizens and members of the press towards the Federal or Provincial Governments of the day. By Explanation 1, disloyalty and feelings of enmity have also been included in the expression 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. He will, by necessary implication, be disloyal to the Federal or Provincial Government in power. This is antithetical to the very concept of democracy and constitutionalism. This also implies that at any particular moment, nearly half of the population will be guilty of the offence of seditious libel, en banc"
Further, underscoring that the people of this country are the masters and the holders of offices of the Government are the public servants, the HC observed that this situation cannot be rendered topsy-turvy by arming the public servants with the power to stifle the masters.
"Section 124-A connotes a stark regression in the protection of right guaranteed by Article 19 and must yield in its favour. Section 124-A is incompatible with the foundational principles of constitutional democracy and as a relic of past, must be consigned to oblivion. It has no place in a society which relishes new ideas and critical analysis to advance itself. The prohibition of mere criticism of Government that does not invite violence reflects an antiquated view of the relationship between the state and society," the Court added.
Consequently, the Court held that section 124-A abridges and limits political speech which cannot be countenanced in a free constitutional democracy with freedom of speech and press as the core values and therefore, it was struck down by the High Court.