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An ill-advised call

Strategy behind framing of an argument matters immensely

An ill-advised call

Speech has always had an inseparable bond with technology. A government or private actor would feel little worry because of speech if there were no effective way of spreading ideas. Hence, censorship and chilling speech/ideas has always been about exerting control over technology that limits ideas. This started (and continues) with the printing and publishing industry — and now extends to the internet.

People claiming to support free speech often, rather unfortunately, forget that the love affair with free speech does not promise to be pleasant: you are bound to encounter speech that makes you deeply uncomfortable — and indeed often targets you. In the recent past in Pakistan we saw a disturbing development. Once so-called free speech activists realised how much discomfort speech can actually cause, they abandoned ship and started carving out (what they thought were) ‘limited exceptions’. Worse, a whole segment of activists called on the government to bring out new legislation to counter ‘hate speech’. Now every country in the world has exceptions to the general guarantee of free speech. But the state should have to work really hard to craft exceptions to this most precious human right — instead of being handed powers on a platter. But the unfortunate happened in Pakistan.

The state, of course, said “thank you very much” to these activists and went about drafting new legislation regarding ‘cyber crimes’. Now, I am not saying that recognising exceptions to free speech is wrong.There are few ‘absolutists’ in the world when it comes to speech — and the great Justice Black of the Supreme Court of the US was one. But, as I said before, the least that you can do as rights activists is to not encourage the state to exert more control and power in this area. Instead of tweaking (where necessary) the existing provisions in the Pakistan Penal Code to cover harassment or intimidation online, we saw people by the hundreds falling prey to this national obsession with new legislation. Somehow, even though people always talk about the lack of enforcement of laws in this country, it never stops them from gathering in fancy five-star hotels’ conference rooms and demanding new laws — more state power. That’s an odd way to get a party started.

So now we have it — the initially highly draconian and now the slightly tweaked draconian version of the Prevention of Electronic Crimes legislation. This proposed legislation, among other things, makes it a crime to ‘glorify an offence or the person accused’ of a crime. It also criminalises ‘advancing religious, ethnic or sectarian hatred’. For good measure, it also gives PTA the power (without having to resort to any court) to remove or block access to any information through any information system — this covers images, sounds, visuals, websites of course etc.

The reason you should be worried about this proposed legislation is directly linked to Pakistan being a weak state and the regular abuse of state power. Also a cause for worry is the near helplessness of the state when religious bigotry dictates actions. Imagine this: a person is accused of an offence under the Pakistan Penal code and you/your friends find evidence that the process of law is being abused. This new proposed law allows the state to charge you with a crime for ‘glorifying’ the cause of an otherwise innocent person — just because he is charged with an offence and is an ‘accused’. Just let that sink in and think about what it means for your activism.

And here is a prediction for everyone who advocated for hate speech laws: they will be abused just like the blasphemy legislation and the Ahmadi related laws to target unpopular minorities (Shias, Ahmadis, Hindus, Christians etc.). What a bigoted cleric belonging to the majority sect will find to be ‘hate speech’ from a Shia may have no bearing on your imagination right now — but remember that in a country where religion is the most potent weapon, it will be used against the vulnerable. And every person who has called for punishing ‘hate speech’ should chastise himself for forgetting that the solution to ‘hate speech’ is more speech. When the answer to speech is criminal punishment instead of the option (and freedom) of countering it with more speech, there will only be gross miscarriages of justice and abuse of human rights. If you keep expanding the ambit of punishable speech, you keep digging a deeper hole — for yourself and worse, for society.

Also remember that support for terrorism and any proscribed organisation is now a crime. This can be any support — even if you provide advocacy related training or an avenue for voicing of views (of an organisation banned by the state) you can be held liable. Ironically enough, a particularly sad example of how similar laws can be used to gag speech comes from the United States — for those interested, read the 2010 SCOTUS opinion in a case titled Holder v. Humanitarian Law Project (130 S.Ct. 2705).

The PTA is no champion of free speech and now will have the authority to unilaterally block any content on the internet. And it will of course do the bidding of the state, as well as the government of the day, therefore potentially any kind of dissent is fair game for blocking purposes. There is a lot else that is wrong with the proposed new ‘cybercrime’ legislation and I will write more about that soon.

But remember that this legislation was not born out of the blue. It was pushed for and aided by educated, well-meaning Pakistanis who forgot that speech that they find disgusting or repulsive is not the only speech that will be controlled by the state under a new law. It is still not too late to push back. We may lose this round but we must not forget our duty of ‘eternal vigilance’ to preserve liberty.

For future purposes, we would do well to remember that the strategy behind framing of an argument matters immensely. Your principled stance will often come to naught if you do not have a strategy.Making an argument is the easy part — figuring out how to ‘sell’ it and the ways in which it can be used to do damage to your ‘cause’ is the real battle. I do not disagree that terrorists and hate mongers have been using the guarantee of free speech to target our vulnerable. Terrorists have also used the internet to target our state, its armed forces, police etc. But less restrictive solutions were and are possible.

You always have a choice between having everybody’s speech gagged (including your own), versus countering hate speech with more speech or choosing to ignore speech you find repulsive. Asking the state to assume broad and vague new powers to gag all kinds of speech, at its discretion, was a horribly ill-advised call. Nothing can convince me otherwise.

Waqqas Mir

waqqas
The writer is a practicing lawyer. He can be reached at [email protected]

One comment

  • Waqqas if you are a pure believer in freedom of speech, what will be your view on this:
    I hate a person. I call out for his death to anyone who would listen. Whenever I see that person, I keep my distance but tell people around me that he should be killed for etc. etc. reasons.

    Is this incitement to violence / hate speech or freedom of speech?

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