IT is a testament to the rapid progress of information technology that lectures and courses by well-known educational institutes, analyses of political and social discourse, and historical accounts of relatively unknown events can be accessed through video-sharing websites such as YouTube.
However, in Pakistan, because of certain sacrilegious videos purportedly threatening public order, a whole spectrum of information, including the political, social and human rights discourse, has been denied to those living here.
Few would argue with the logic of blocking content deemed blasphemous in a society where religious sentiments run deep.
But the question is whether in an effort to block or censor material that can potentially disrupt public order or is derogatory of a religious worldview (and therefore against the law), the government can also curb access to information protected under Article 19(a) of the Constitution.
To answer this question, we would first need to consider those constitutional provisions that relate to the right to information. Article 19 of the Constitution guarantees the freedom of expression to every citizen, including the freedom of the 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”.
This constitutional right has historically included the right to information, which was considered to be part and parcel of Article 19.
However, the legislature, through the 18th Amendment, carved out Article 19(a) from the fundamental right of freedom of expression and created a new and independent right guaranteeing information of public importance to the public “subject to any regulation or restrictions imposed by law”.
It is noteworthy that the explicit restrictions and limitations placed on the freedom of expression in Article 19 were intentionally omitted in carving out Article 19(a). This broadens the scope of information that a citizen can by right retrieve on a matter of public importance.
Justice Jawwad Khawaja, in a separate note in a recent Supreme Court case, more famously known as the Memogate case, has held that Article 19(a) is a broad-based right whereby the citizens have a right to the truth and any and all information which allows them to make an informed decision about their future.
The Supreme Court also reaffirmed and expanded on this is in the Malik Riaz suo motu case, holding that the citizens not only have the right to ‘correct’ information in matters of public importance, but also the right to reach an ‘informed opinion’ on such matters.
It must be noted that a ‘matter of public importance’ has been delineated by the superior courts as pertaining to a purpose or aim in which the general public has an interest.
This would clearly include political, social and human rights discourse, educational information and lectures, as well as other data and material available on YouTube. It would allow a citizen to form an informed opinion on a multitude of matters including those concerning the growth and development of the nation itself.
Therefore, it is clear that Article 19(a) intends to protect material not subject to any restrictions of the law, such as educational material and information.
Certainly, in the YouTube case, it appears that the dictates of the Constitution in protecting certain information have been flagrantly disregarded in order to adhere to an ordinary statute limiting specific unscrupulous content. But to what extent is this impression correct?
The superior courts do tend to jealously guard the rights of citizens against possible infringements by the state. The counter argument, however, is that the government’s lack of capacity to block offensive material carried by a certain website would require the judiciary to balance the right to information with other fundamental rights, such as the right to life and liberty and the right to property.
The Constitution must be read as an organic document in which guaranteeing of fundamental rights to one person does not result in the infringement of the fundamental rights of another. In effect, the need is for the courts to interpret these rights of the citizens to ensure that the various constitutional protections complement each other rather than compete with one another.
Looked at from a broad legal point of view, it would appear that the blocking of a whole spectrum of information because of the inability or lack of capacity to specifically limit access to prohibited material appears justifiable in the short term.
However, it must be kept in mind that such a controversial measure, if allowed without any preconditions, shall set a dangerous precedent for the curtailment of constitutional rights on the touchstone of ‘perceived incapacity’.
Hence, such a conception of the law should not only be discouraged, but only temporarily allowed in a situation where despite the best and earnest efforts of the government to obtain such technology, it is unable to do so due to no fault or negligence of its own.
In any other scenario, the limiting of constitutional protections on the ground of balancing fundamental rights appears to be inapplicable. In fact, in such a situation, one fundamental right would not be threatening to infringe upon another, but rather, it would be the state’s unwillingness to act that would result in the infringement of fundamental rights.
In essence, the state would effectively be resiling from its obligations to protect the fundamental rights of its citizens.
In complying with the aforementioned, the state would be able to truly adhere to the mandate of the ordinary law whilst maintaining and observing the constitutional protections afforded to the citizens in various constitutional provisions.
Anything less would be to sacrifice the directives of the Constitution at the altar of the state’s convenience and ineptitude.
The writer is a lawyer. firstname.lastname@example.org