Wednesday, August 14, 2013

Internet Freedom - Real Independence

By Yasser Latif Hamdani

Newspapers reported that the IT Minister, Ms. Anusha Rahman, is working with experts to create software to block all objectionable material which would then allow the YouTube ban to be lifted. After 11 months, this is where we are at and we still have it all wrong.
I am the petitioner’s counsel in Bytes for all v. Federation of Pakistan etc before the Lahore High Court where the petitioner argues for unfettered net freedom and an unqualified end to censorship, filtering and regulation on the internet. As petitioner’s counsel I would like to re-state for the people the case we have made before the Honourable High Court in simple English language. It has been necessitated by a malicious defamatory campaign that has been undertaken by certain quarters within the power pro-censorship lobby in our government.  

The ostensible argument favouring the YouTube ban has been that as an Islamic Republic, the state has certain obligations towards Islam. Let us concede this view i.e. obligations towards Islam. After all Pakistan is a federal republic to be known as an Islamic Republic. The preamble to the Constitution which appears against as Article 2-A vests sovereignty over the universe in Allah, Article 2 makes Islam the state religion and the Constitution contains in it the repugnancy clause i.e. the parliament shall not make any law that is repugnant to Quran and Sunnah. Could this mean then that regulating what we see or do not see is a policy decision for the Islamic Republic? From a constitutional angle, the answer has to be no, despite state’s obligations towards Islam.
Consider: Pakistan’s Constitution also guarantees the right to life, right to fair trial, right to inviolable privacy, freedom of expression, freedom of association, access to information and freedom of religion. For freedom of expression the provisos contain a reference to “glory of Islam”, “morality” and “law and order” as possible reasonable restrictions through law. Let us first take the issue of the glory of Islam.  The onus is on the pro-censorship section within our government to prove legally that their actions indeed serve the glory of Islam.  How does depriving 30 million Pakistanis, mostly Muslims, of access to YouTube serve this cause? It undermines it. Presumably a significant section of these Muslims would be in a position to answer some of the scurrilous abuse against Islam, had YouTube not been banned. Therefore the glory of Islam argument makes no sense when you begin to dissect it. 
Law and order argument would hold more water than glory of Islam in this case. The argument here is that if YouTube is re-opened, it will provoke unthinking mobs to burn things and kill people. Again this may or may not be the case.  The responsibility for a reasoned national discourse is that of the political leadership. The Government can and should announce that it would prepare a scholarly documentary to counter the patent untruths of the offending materials on YouTube. There are many steps that the Government can take, short of censorship, to both counter misrepresentation of Islam and ameliorate the feelings of millions of Muslims in the country who have been outraged as a result of one video. Blanket ban on a website as important and useful like YouTube cannot be justified given Pakistan’s obligations under Article 19 of the International Covenant on Civil and Political Rights (ICCPR). My colleague, Nani Jansen, the General Counsel for Media Legal Defence Initiative in London, put it succinctly when she wrote (with reference to the YouTube Ban) that under sub-clause 3 of the aforesaid Article 19 the right to freedom of expression may be restricted only when the following three conditions have been met:
a) The restriction must pursue a legitimate aim, such as protecting public order or the rights of others;
b) The restriction must be provided for by law; and
c) The restriction must be necessary.
The unconstitutional and illegal ban on YouTube is an arbitrary exercise of executive authority through a shadowy body called the Inter Ministerial Committee that oversees such internet related banning. There is no legislative sanction for this block nor should there be one because simply put there is nothing in Islamic law or jurisprudence that requires regulation of what a person can or cannot see.  It is a question of personal freedom and not public conduct. Simply put “seeing evil” alone has never been offence under Islamic law. Therefore as much as it may be distasteful, what a person sees or doesn’t see on his computer screen cannot under any circumstances be punishable by law.  Let us look at it from another angle – if the crime is publishing a blasphemous video on YouTube, is the state not concealing the crime by filtering it?
The bottom line is that all internet censorship is irrational, counterproductive and predatory. This is our case before the Lahore High Court- nothing more, nothing less.

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