Limits of freedom of speech and expression | By Raza Muhammad Khan


Limits of freedom of speech and expression

I may not agree with what you have to say, but I will defend to death your right to say it.

I admire this quintessential pronouncement by Voltaire, in support of the rights of freedom of speech and expression, but he was exiled in 1717 by the French government for slanderous poetry; verifying that this autonomy carries with it onerous consequences.

The International Covenant on Civil and Political Rights also recognizes that this liberty may be restricted for respect of the rights or reputations of others; protection of national security; public order; health or morals.

But there are aberrations. For instance, the French, Swedish and Dutch laws prohibit hate speech and defamation but their governments condoned the libellous and xenophobic ‘Charlie Hebdo’, ‘Jyllands-Posten’ publications and the actions of a legislator, named Geert Wilder, respectively.

In these cases, gaining low-cost popularity or profits through Islamophobia were openly displayed, behind the shield of freedom of expression that had very costly local and international repercussions.

In the US, according to Wikipedia, the ‘University of California Berkeley and the Council on American–Islamic Relations estimated that $206 million was funded to 33 groups by the “Islamophobia industry”, whose purpose was “to promote prejudice against, or hatred of, Islam and Muslims’ between 2008 and 2013.

It is easy for such groups to take refuge behind the ‘First Amendment’ of the US Constitution, that overlooks hate speech and expression, though the US founding father, Benjamin Franklin, had wisely cautioned to “Remember not only to say the right thing in the right place, but — to leave unsaid the wrong thing at the tempting moment.

But here too, we witness state intervention, as recently revealed by the US media that the Justice Department, during Trump’s tenure, had secretly acquired the communication records of NYT, WP and CNN reporters, to hinder the FBI investigations in 2016 elections.

Inside India, Muslims are branded as unpatriotic and harassed through exclamations like “Deshkegaddaronko, golimaarosaalonko” (shoot the traitors) and ‘Musalman key liyeaik hi stan, Pakistan yaqabristan’ (Muslims should go to Pakistan or graveyard).

The Indian government, its pliant media and judiciary are often complicit in such blatant misuse of freedom of speech and even the spread of fake news (‘Indian Chronicles’).

These cases demonstrate that not all free speech is good and that unrestricted expression is not always a sound principle.

More so, when every medium is virtually present in one’s hand in the form of smartphones, which brings forth, unparalleled challenges and opportunities for the state and the media.

Acting as an autonomous power centre in reciprocal competition with others, the media wields immense powers as it determines the fate of politicians, their electorates and governments.

If used indiscriminately, to leverage ideological, political or economic power for itself, it can trample the fundamental rights of the people and challenge; even erode the authority of the state. So what can be done to prevent this?

Media owners will say self-censorship but this may be impractical to enforce, owing to their distinct viewpoint and self-interest in the matter and their inability to easily or fully align their views, with public and national interests or divergent political domains.

Thus, it is the state alone, which has the locus standi and resources to maintain the balance between freedom of speech and expression and the essential vigilance on the information sector, for protection of the rights of others and for public interest.

In Pakistan, Article 19 of the Constitution guarantees ‘the right to freedom of speech and expression — ‘subject to , restrictions, in the interest of — glory of Islam or — integrity, security or defence of Pakistan — friendly relations with foreign states, public order, decency or morality, or — contempt of court, commission of or incitement to an offence’.

The media owners and the government can collaborate on the implementation of this vital clause as follows: First; Enforcing the recommendations of the Media Review Commission (MRC), (established in 2013, through a Supreme Court order), particularly the voluntary Code of Ethics of the Council of Pakistan Newspaper Editors (CPNE), that (a) forbids ‘biased reporting or publication of unverified material and — expression of —conjecture as — fact and generalization based on the behaviour of a single or small number of individuals—‘(b) prohibits financial or other inducements that can mask the truth.

(c) Endorses, prompt rectification of harmful inaccuracies, through apologies that receive due prominence or afford the right of reply to persons criticized on significant issues.

Second; Work out appropriate criteria and rules for grant of media licenses, to obviate the risks of private money lenders, illiterate rich people or outlaws, to obtain permission for the purpose.

License approval benchmarks must include education, training, experience and welfare of journalists working for the media.

Third; Since the MRC did not suggest a remedy for violation of journalistic ethos, the government must do this now, with inputs from established media houses, to curb sensationalism, yellow journalism or negativity that could scare investors, hurt the economy, religious harmony, societal cohesion or discredit state institutions.

Alongside oversight of the registered media, the fast proliferating, YouTube channels and internet media in Pakistan must also be regulated and our digital domain protected through a separate regulator, in accordance with the ‘Citizens Protection (Against Online Harm) Rules, 2020’.

Finally, broadcasting of mandatory programmes in public interest, specified in PEMRA Ordinance must be ensured and the state must hold accountable, those who violate any law on the matter. This will indeed be the most daunting but imperative undertaking.

Perhaps these matters could set off a broader reckoning through the forthcoming Pakistan Media Development Authority, after due diligence and consultation with all stakeholders.

However, sans these limits, public interest, law and order, transparency, accountability, the justice system, governance and even national security, will remain imperilled, inside Pakistan and abroad.

— The writer, a retired Lt Gen, is former President of National Defence University, Islamabad.

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