Monday, November 28, 2011

My Arguments before His Lordship Umar Ata Bandial in PTA-Blackberry Case 28.11.11

          In the Honourable Lahore High Court at Lahore

                             Yasser Latif Hamdani v. PTA and one other
Writ Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973



  1. Article 19 of the Constitution of the Islamic Republic of Pakistan, 1973, reads :
Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, commission of or incitement to an offence.
  1. Possible restrictions on freedom of speech, constitutional or unconstitutional, may be divided into two categories : 
a.       Restraints on freedom of speech and expression prior to an exercise of the same.
b.      Restraints on freedom of speech and expression after the exercise of the same.
The narrowest view of freedom of speech and expression is that of William Blackstone. In his commentaries on freedom of expression, Sir William Blackstone took the view that the terms freedom of speech, expression and press were aimed at liberating the individual from fetters of the first kind. In chapter XI of his famed Commentaries on laws of England, Sir William lays down his view:
In this and the other instances which ore have lately considered, where blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are punished by the English law, some with a greater, other with a less, degree of severity; the liberty of the press, properly understood, is by no means infringed or violated. The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. But to punish (as the law does at present any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus the will of individuals is still left free; the abuse only that free-will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or enquiry: liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive of the ends of society, is the crime which society corrects. A man (says a fine writer on this subject) may be allowed to keep poisons in his closet, but not publicly to vend them as cordials. And to this we may add, that the only plausible argument heretofore used for the restraining the just freedom of the press, "that it was necessary to prevent the daily abuse of it," will entirely lose its force, when it is shown (by a seasonable exertion of the laws) that the press cannot be abused to any bad purpose without incurring a suitable punishment: whereas it never can be used to any good one, when under the control of an inspector. So true it will be found, that to censure the licentiousness, is to maintain the liberty, of the press.

This it is submitted is the irreducible minimum for free speech in English legal tradition which we also follow. My first submission is therefore this:  Any law that provides fetters prior to exercise of free speech is itself in violation of the very notion of the freedom of speech and expression and that the reasonable restrictions that have been allowed by Article 19 of the Constitution of the Islamic Republic of Pakistan, 1973 are fetters that exist in criminal exercise of free speech and for that the basic element would be the mens rea for committing a crime under Pakistani law i.e. such as uttering or recording blasphemous or seditious speech. A blanket ban on the usage of a device or a tool therefore is patently unconstitutional as it falls under category a defined above.

  1. Without prejudice to my first submission, even if we were to argue that the Constitution envisages fetters on free speech prior to the act of free speech or expression, though it would defeat the very essence of the fundamental right contained in Article 19 and impute redundancy to it,  it may well be stated that any such fetter has to be a. positive law which is b. legislated by the legislature competent under the constitution. To this end the burden is on Pakistan Telecommunications Authority to show how or why it was empowered to ban blackberry internet browsing services, after the Honourable Lahore High Court’s ban on Facebook expired on 31 May 2010. My second submission is that there is nothing in positive law that empowers the Pakistan Telecommunications Authority to block or ban blackberry internet browsing services in Pakistan and any such ban militates against Article 19 of the Constitution.

  1. Article 19-A of the Constitution supra reads:
“Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law.”
Article 19-A makes the right to access of information pertaining to a public authority a fundamental right. Justice Syed Mansoor Ali Shah in his landmark judgment Ataullah Malik v. Federation of Pakistan[1] laid down the following:
“Right to information is another corrective tool which allows public access to the working and decision making of the public authorities. It opens the working of public administration to public scrutiny. This necessitates transparent and structured exercise of discretion by the public functionaries. Article 19-A empowers the civil society of this country to seek information from public institutions and hold them answerable.[2]

I rely on the aforementioned judgment to seek the notification, order or some such circular by which Pakistan Telecommunications Authority has blocked blackberry internet browsing services.

The petitioner therefore prays
  • That this Hon’able Court may be pleased to direct the respondents to produce the order under which the Blackberry internet browsing services are currently inoperative.

  • That this Hon'able Court may be pleased to issue an order or direction under Article 199 of the Constitution of Pakistan against the respondents instructing them to resume blackberry services with immediate effect and to pay the petitioner costs of the petition.
                                                                                 Petitioner in Person

[1] PLD 2010 Lahore 605
[2] Ibid Page 617

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