Freedom of Express and the Law of Sedition

Freedom of Expression and the Law of Sedition

Institutional intolerance has a trickle-down effect in the society, writes Arshia Shoaib Khawaja 

We often come across incidents which revolve around student protests and arrests occurring because of numerous reasons. The most recent incident of large student protests was in India over the government’s enactment of repressive and discriminatory citizenship laws. Indian authorities have conducted waves of arrests of student activists who were involved in various political movements. Similarly, in Pakistan, a number of students of Karachi University were arrested for arranging a peaceful protest demanding access to clean water. Such acts are a manifestation of a horrific denial of citizens’ right to freedom of expression.

Freedom of expression is a fundamental civil and political right enshrined within the Constitution of Pakistan, as stated under Article 19 in the chapter of fundamental rights. This right also demands state protection emanating from the country’s international human rights’ responsibilities as per an obligation assumed under the International Covenant on Civil and Political Rights (ICCPR) 1966 to which Pakistan is a signatory state, and has ratified a significant amount of its provisions in its domestic law. This right is guaranteed under Article 19(2) of the ICCPR. Despite this, there are a number of offences under the Pakistan Penal Code which exorbitantly deny its citizens the right to freely express their opinions. One such offence is the offence of sedition.

In the colonial era, sedition laws were introduced in the Indian subcontinent in order to manufacture disciplined, docile and absolutely submissive subjects, completely alien to dissent. The European “white man’s burden” approach was reminisced behind such laws; laws which carried no legitimacy and were brutally fascist and dictatorial in nature. A landmark figure in leftist politics and colonial revolutionary history, student leader Bhagat Singh and his comrades were charged and subsequently murdered by the state under this law. Similarly, there are countless other examples of revolutionaries, pro-independence and student leaders being imprisoned, hanged and silenced under the garb of this draconian law.

It is unfortunate that such oppressive rules are still reflected in post-colonial states such as ours, and India.

Section 124-A of the Pakistan Penal Code (PPC) defines the law of sedition. This law was first ostensibly created under the British Raj in the Indian subcontinent which was made an integral part of state governance laws post partition. Similar offences can also be found in various colonial states such as India. The law of sedition traces its roots to the infamous historic Rowlatt Act or the Black Act as it was referred to by the English rulers. With regards to this Act, Mr Jinnah, the founder of Pakistan expressed deep regret in his resignation letter addressed to Viscount Chelmsford in which he stated: “In my opinion, a government that passes or sanctions such laws in times of peace forfeits its claim to be called a civilised government. The fundamental principles of justice have been uprooted and the constitutional rights of the people have been violated by an over fretful and incompetent bureaucracy which is neither responsible to the people nor in touch with real public opinion.”

For the purposes of Section 124 A, any person who either orally or “by signs” or by “visible representation” or by any other means incites feelings of hatred and discontent or attempts to excite such feelings amongst individuals against the federal and provincial governments of Pakistan which are lawfully elected must face either a term of life time imprisonment to which fine may be added, or a term of three years to which fine may be added. This is a non-bailable offence and the government of Pakistan can only constitute a claim against the accused. Private complainants cannot do so.

This law has far-reaching consequences and places unchecked power in the hands of the state apparatus to arrest, unlawfully detain and charge all such individuals whom it feels threatened by, even those who are just voicing their thoughts against repressive state policies or fighting for the determination and fulfilment of their fundamental rights.

Another significant flaw with this sanction is that the charge is not amenable to judicial review which, in essence, denies individuals falsely charged under this offence a right to legal recourse. The charge cannot be reviewed by the courts, giving way to unlawful or enforced disappearances and arrests, indefinite detention, denial of freedom of expression and more.

The factors contributing to our state’s repressive ideology and environment are many and unfortunately extremely difficult to tackle. Having a decrepit and poor human rights record with regards to the provision of this right, it makes it difficult for the state to fight international actors against ensuring rights for indigenous communities the state is supportive of in particular the Kashmiris.

The situation is worsened by the fact that issues of freedom of expression are horrendously manifest and rampant in Pakistan-administered Kashmir, where dissent is cruelly punished by state and non-state actors. A far more barbaric picture is illustrated by the Indian authorities in Indian-occupied Kashmir, where crimes against humanity are committed on a daily basis. Many student leaders and “militants” have been murdered and annihilated by despotic Indian authorities, prominent examples being the assassination of Maqbool Bhat, who was booked for sedition charges as well and Burhan Wani. Countless such examples of student activists being tortured, extra-judicially killed and unlawfully detained exist in the valley of Kashmir on both sides.

Institutional intolerance has a trickle-down effect in the society and in the daily conduct and public dealings of individuals leading to issues such as racial, ethnic, religious and gender oriented intolerance. Most importantly, remaining silent about issues does not fix them magically nor does brushing things under the rug and turning a blind eye towards them serve as solution. As much as this is true and pertinent for socioeconomic issues, it is equally applicable to civil and political issues. Dissent on state policies is a necessary pre-requisite for effective and progressive governance of the state.

By charging students and academics with terrorism offences and sedition, the state is creating an environment of intolerance and hostility. Differing opinions is seen as a crime against the state. In a country which is already tragically divided along religious, ethnic other socio-political lines, such a regressive atmosphere will only give birth to further problems, the most glaring one being denying their fundamental freedoms as nobody will be willing to partake rights’ emancipation. The state must be restrained from expounding upon the historic “divide and rule policy” to rule its subjects. The foremost solution to this is to allow individuals with variant opinions to express them and to entitle individuals to exercise their right to freedom of expression. If unity and rights emancipation are crimes against the state, then such crimes should be legalised as they go to the baser essence of humanity and social and intellectual progression. By harrowingly violating and denying individuals their fundamental rights, the state, by its repressive regimes, is potentially pushing the nation towards anarchy and civil disobedience, a devastating but necessary alternative. Laws violative of the right of freedom of expression – such as the law of sedition – must be instantly repealed and reformed for a more humane and tolerant nation and society.

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