Freedom of speech

ARTICLE: 'If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter,' said George Washington. Normative (liberal and religious) and empirical sciences agree that freedom of speech is essential for human accomplishment. After a long human suffering at the hands of the powerful, this cherished right of 'freedom of speech' is now part of the UN declaration of Human rights, the European Declaration of Human rights and incorporated in almost every constitution framed in the twentieth century. Americans quickly realized the omission and incorporated the charter of rights through first ten amendmentsto their constitution.

Freedom is the residue ability to act without any interference, both external and internal (force and fear), after a voluntary surrender of a portion of freedoms for the common good. This common good refers to the collective good of the society, an individual lives in, as a bargain to acquire safety and protection. Of late, fictionally, this surrender was to the state. These freedoms of an individual are continuously adjusted against this common good. This adjustment and placement of limitations on individual actionsmust be based on consent. Not force. This adjustment, sometimes called balancing power, is either given to the judiciary as under the American constitution or to the legislature like England, Pakistan, India, the European Union and South Africa. Moreover, a flexible measure for these restrictions on freedoms'reasonableness' is prefixed before permitting that adjustments. Additionally, depending on a freedom involved,the scope of the protected areas is also prescribed with varying degrees, depending upon the ideologies and people. In liberal societies, generally this area of restrictions is limited but in religious and ideological states these limitations are fluid.

Speech has multiple forms and several means of expression. With the technological advancement the range of speech and its expressions and their communication has taken multiple forms. Nowadays, speech travels at the speed of light. Speech finds its expression in many forms. Speech can be in the form of views, opinions, ideas, dogmas, beliefs and faith which are expressed in different mediums. Humans are equipped with senses and mind which create different forms of expressions based on the sensory data. With the advancement of sciences and research, this sensory data can now possibly be manipulated in different ways to control almost all forms of expressions. Faith(s) uphold and insist on the value of verified truths. A study of human history shows that societies which undermined truth, declined and ultimately vanished. On the other hand,free enjoyment of freedoms led to human progress, advancement and well-being of the people.

The Constitution of Pakistan recognizes the freedom of expression and press under Article 19 which guarantees freedom of speech and expression to every citizen and also freedom of the press subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security and defence of Pakistan or any part thereof of, friendly relations with foreign states, public order, decency, or in relation to contempt of court [commission of] or incitement to an offence. This and its sister Article 8 in 1956 Constitution and Article 9 of 1962 Constitution are almost identical with Article 19(1) and (a) (2) of the Indian Constitution with the addition of glory of Islam and 'commission' of an offence. The Indian provisions, as originally adopted in 1949, has been amended subsequently many times that mutilated the original right. In other jurisdictions, freedom of speech and expression is balanced against the right to privacy. The right to privacy of an individual is not expressly recognized under the Constitution but the privacy of home is under Article 14(1) in the context of house searches without a warrant by the Court. It is uncertain if restrictions contained horizontally can be read together to protect a particular right, but this difficulty can be overcome by alleging separate violations of guaranteed rights. The Constitution also separately confers a power of contempt upon the Courts under Article 204. Additionally, restrictions on speech in the form of qualifications and disqualifications have been placed on persons for becoming a member of Parliament under Articles 62 & 63 of the Constitution.

From a trend of authorities, it appears that Courts in Pakistan have frequently exercised their contempt power. The Supreme Court in the Masroor Ahsan v. Ardeshir Cowasjee (1998) after surveying almost the entire case law on contempt from Pakistan and the Commonwealth came to the conclusion that contempt power of the Court is meant to enforce its orders and protect justice system. The late. S.S. Pirzada traced the history of use of contempt powers by the Courts in Pakistan in a couple of articles published in 2013.

The Courts have been entrusted with the enforcement of fundamental rights. Judiciary is the only institution which brings hope and remedies against injustices of other branches of the Government. This unusual power of contempt conferred by the people on Courts is meant to create awe and not fear. It is a shield not a sword. The Court commands respect through its independent decisions that protects the honour and dignity of the Court and its judges.A judge leaves a mark on society when he holds the scales of justice in balance over stand of the Constitution and law. Wise men sitting in the temples of justice remain calm and ignore petty noises.

An idea, a form of speech, carries the embryo of action. Ideas need expression and when transformed into actions, they cause a change. An idea is born from the womb of freedom shielded from fears of every kind. The history of mankind is the history of ideas. An idea has the ability to test a truth and bring out the reality. Ideas challenge the monopoly of state groups over truths and resources. Discouragement of truths and ideas breeds suspicion. And, unreasonable and forced restrictions on freedoms strain the state functioning.

Copyright Business Recorder, 2020