Should the judicial hammer protect personal freedoms or religious sensitivities?

The government of Pakistan, in September 2012, banned the popular video-sharing website, Youtube, in response to widespread public unrest on the broadcasting of clips of a low-budget film titled ‘Innocence of Muslims’, which (reportedly) portrays Muslims as violent and immoral, and specifically makes blasphemous slants against the Prophet (PBUH). Soon thereafter, a petition was filed before the honourable Lahore High Court, by an NGO called Bytes for All, to restore access to Youtube, and a debate about the virtues and vices of censorship started in the legal and religious stratas of Pakistan.

The case, which has now been heard for over six months, is still pending adjudication. And despite an urging by the Petitioner’s counsel, the access to Youtube has not been restored in Pakistan as yet.

The issue throws up a number of legal and social propositions: what should be the contours of censorship in our legal paradigm, specifically as it relates to material that undermines religious sensitivities and the ‘glory of Islam’? Who defines what the glory of Islam is, and what exactly constitutes a threat to such glory? In the age of widespread information and the internet, can we really have an enforceable standard to block all access to religiously objectionable material? Can such blockade by justified, legally, through a legitimate state interest? Does such blockade infringe on the personal freedoms of our citizens? And if so, which side should the judicial hammer fall? On the side of personal freedoms, or on the side of protecting religious sensitivities? How can we undertake this balancing exercise between competing rights? And in so doing, must we not be cognizant of the larger impact that it would have on the society in terms of allowing access to objectionable material, or banning information in general? Also, is there a different between objectionable or blasphemous material that is thrust upon us, as compared to that which exists somewhere on the world-wide-web, but can only be accessed by someone who is actively searching for it? Is there a difference between objectionable material available of active forms, as compared to passive forums? In other words, should censorship standards be different for protecting against blasphemy in the form of graffiti on our city walls, as opposed to blasphemous content available in some obscure corner of the internet?

Let’s start with a brief account of the Pakistani laws, under which the blockade of Youtube (for containing blasphemous material) is being defended. The Preamble, as well as Article 2A of the Constitution of Pakistan, upholds the sovereignty of the teachings of Islam. Similarly, Article 19 limits the right to freedom of speech from venturing into an area that compromises the glory of Islam. And Part IX of the Constitution (Islamic Provisions) mandates that all laws of Pakistan must be in conformity with the ‘injunctions of Islam’. Pursuant to these Constitutional provisions, Pakistan has enacted PEMRA Ordinance and censorship laws, which incorporate the same ideas. Similarly, section 295-C of the Pakistan Penal Code makes blasphemy a criminal offence (publishable by death). And thus, in light of these laws, an argument can be constructed in favour of banning every possible outlet of information (even on the internet), which has the ‘potential’ of ‘directly of indirectly’ being construed as blasphemous.

On the other hand, restoration of Youtube and unrestricted access to the internet, can be supported through international jurisprudence and through expounding on the trajectory of human rights and personal freedoms. In the famous case of Reno v. ACLU (521 U.S. 844), for example, Justice Stevens wrote a nuanced decision, which declared the Internet as “the most participatory forum of mass speech yet developed”, a forum which invites views from all the different religions, cultures and social biases of the world, and thus deserves a greater degree of free-speech protection that all the other mediums. Similarly, in 2012, the Human Rights Council of the United Nations adopted a Resolution, which “recognizes… Internet as a driving force in accelerating progress towards development” and protects the views published on the Internet as an integral part of the freedoms under the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights.

The issue at hand, before the honourable Lahore High Court, is larger, however than any of the laws discussed above. It is not merely a question of following domestic or international precedents. It is not a matter concerning legal objections in terms of jurisdiction and locus standi. It is not even an issue relating to a ‘threat’ to the glory or integrity of Islam. (It is awfully presumptuous of us to even imagine that the ‘glory’ of Islam can be undone by some bigoted California movie-maker, or, for that matter, that it can be ‘saved’, by a verdict from the High Court). At the heart of the matter, the issue relates to what kind of society and people do we want to be. It is not simply a question of whether Youtube should be unblocked because it serves an academic or social purpose. It is a question of whether we preserve individual freedoms, and discourse, even at the cost of being offended by the words of the speaker, from time to time. Or will we descend into becoming a society where subjective morality and religious sensitivities become a sword to silence tongues and stamp out all debate. Is it really possible to ban everything on the World Wide Web, which offends us? And even if we were to undertake such an exercise, can we do so continuously, each day, to monitor and stop some kid in some dark corner of the world from writing a blog or posting a comment that offends us? Should we shun away from such things, or instead take it upon ourselves to reply to such things with intellectual rigor and prowess? Should we really ascribe to a national philosophy that creates an invisible shield around our geographic boundaries, through which no new information, no controversial idea, no notorious debate could ever reach our shores?

The story of intellectual progress, in the great span of human history, is a story about the gradual breaking away from shackles of censorship and taboo. Were it not so, then the Shikwa of Iqbal or the dance of Bulleh Shah would forever be shunned from our debates. But the court of human history has vindicated the contention that more information, even useless information, is better than less. That more knowledge, even controversial knowledge, is superior to ignorance. That notorious debate is better than silence.

The moral arc of our society might be long and often indiscernible, but in the final analysis, it must bend towards freedom. And this, I hope, will also be our judicial philosophy in deciding the Youtube case.

Originally published in Pakistan Today. The writer Saad Rasool, is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be reached at: saad@post.harvard.edu

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