We write to you today to express our grave concern over the passage of the draconian Tahaffuz-e-Bunyad-e-Islam Bill 2020 (“the Bill”), which empowers the Directorate General Public Relations (“DGPR”) to visit and inspect any printing press, publication house or book store and confiscate any book, before or after printing. The vesting of such immense arbitrary and unilateral power in a single bureaucrat is in breach of even those reasonable restrictions that can be imposed on the right to freedom of expression under the Constitution of Pakistan, 1973 (“the Constitution”).
Moreover, due to the ambiguous wording of the Bill, there are bound to be major problems with respect to its application, specifically relating to discriminatory application of this power, which will inevitably lead to violations of Article 25 of the Constitution. For example, the Bill prohibits the printing and publication of “objectionable material” and prevents publishers, editors and translators from printing or publishing said material, without defining what constitutes “objectionable material”. As such, there is no legal certainty through which citizens of Pakistan can definitively regulate their conduct in accordance with the provisions of this Bill.
As there are no intelligible criteria provided within the Bill on the basis of which confiscation can be ordered, the application of the Bill will almost certainly result in Article 25 violations. If the DGPR is allowed to arbitrarily confiscate publications, there are no checks and balances against discriminatory or prejudicial treatment, nor is there any criteria by which the same can be prevented.
The Bill additionally empowers the DGPR to refuse permission to import, print or publish a book “if it is prejudicial to the national interest, culture, religious and sectarian harmony”. These are not lawful restrictions on the right to freedom of expression under the Constitution. In fact, even if they were listed grounds contained in Article 19, restrictions on the right to expression must comply with the three-part test contained in Article 19 of the International Covenant on Civil and Political Rights (“ICCPR”), to which Pakistan has been a State Party since 23 June 2010. Accordingly, an interference with the right to freedom of expression is only legitimate if:
- it is provided by law;
- it pursues a legitimate aim; and
- it is necessary in a democratic society.
The onus is on the Punjab Assembly to establish that the interference resulting from the Bill is legitimate under the legal standard of assessment provided in the ICCPR.
The powers of confiscation provided for in the Bill are violative of Article 10-A of the Constitution. The Bill does not provide for a right to hearing prior to confiscation, which is violative of the principle of audi alteram partem. It is a well-settled principle of our jurisprudence that if it is being contemplated to pass an order against a person, he/she should first be provided with an opportunity of hearing. Public office-holders, including the DGPR, exercise powers only under the law and as such it is incumbent upon them to grant an opportunity of hearing before passing an adverse order.
The requirement of four gratis copies placed on publishers and printers, under Section 5 of the Bill, is an impediment to the exercise of their Article 18 right safeguarding freedom of trade, business or profession. Public entities cannot take any measures or decisions that impair the exercise of this right.
This Bill is also in breach of Article 19A of the Constitution, which protects the right to access to information. The concepts of glory of Islam, national interest, culture and religious and sectarian harmony cannot be allowed to be misused and become a tool for whimsical, arbitrary, subjective, unstructured, dictatorial or unreasonable censorship and control of publications.
Ultimately, we view the passage of this Bill as a blatant attempt by the Punjab Assembly to circumvent the guarantees for fundamental rights contained in the Constitution. What is peculiar is why a democratic forum would behave in such a dictatorial manner, disrespecting the Constitution that empowers it to begin with. The DGPR, as the sole regulator for publications across Punjab, cannot act in an arbitrary, capricious or unjust manner. Under the law and Constitution, the DGPR is not granted absolute, unfettered discretion to act arbitrarily.
Lastly, as citizens of Pakistan, we cherish the right to freedom of expression as one of the cornerstones of a democratic society. It is an integral requirement for progress and development of human beings. Every condition or restriction imposed on our right to expression and our right to information must be proportionate to the aim purportedly pursued. The necessity for this bill must be established by the Punjab Assembly, which has not yet been done. Moreover, the Punjab Assembly has been unable to highlight a pressing social need that required passage of this Bill. Therefore, we register our strong opposition to this draconian Bill and strongly urge reconsideration of the position adopted by the Punjab Assembly.
Signed by:
- Imaan Zainab Mazari-Hazir, Lawyer
- Mohammad Raza Goraya, Lawyer
- Usama Khilji, Activist
- Barrister Syeda Jugnoo Kazmi, Lawyer
- Nighat Dad, Advocate High Court
- Dania Mukhtar, Advocate High Court
- Shmyla Khan, Lawyer
- Muhammad Usman, Lawyer
- Saqib Jillani, Lawyer
- Nabiha Sheikh, Philosophy for Children, Pakistan
- Salima Hashmi, WAF Lahore, Artist, Educator
- Women’s Action Forum Lahore
