This is apropos a letter to the Editor by Jahan Ara Syed carried by the newspaper yesterday. In my view, however, the analysts seem to have also purported again without any conclusive evidence that within the coalition, there could be power struggles and disagreements that have led the PML (N) to act unilaterally. The exclusion of the PPP’s consent indicates possible rifts and a desire by PML (N) to assert its dominance over the coalition and provincial governance. There might be underlying economic interests, such as investment projects, land reforms, or industrial policies that the PML (N) government aims to push through with minimal opposition.
The reply to the other question about jurisdictional limitations and enforceability of the Act within Pakistan raised by Ms Syed, in my view, is quite trickier, to say the least. If alleged defamation occurs outside the province of Punjab, it would face challenges in bringing the alleged defamer to task. It would require coordination with federal authorities or the respective provincial government, through complex legal processes. However, when alleged defamation occurs outside Pakistan, the complexities increase further. The Punjab government lacks the authority to unilaterally enforce its defamation laws internationally. Thus, prosecuting or penalizing individuals residing outside the province and outside Pakistan becomes highly impractical.
Having said this, let us dive deep into the most controversial provisions of the said Act, which are making headlines in print, electronic, and digital media. Let us start with Section 3 of the said Act, which provides a speedy remedy to the person defamed by empowering them to initiate an action under this Act without proof of actual damage or loss. Where defamation is proved, general damages shall be presumed to have been suffered by the person defamed.
The onus to prove that defamation has occurred also does not rest with the claimant, as the Act does not require the claimant to establish their reputation. It shall be sufficient if they prove any damage, over and above the general damages to their reputation, against the defendant.
The general damages, as defined under Section 2, are damages to be granted by the Tribunal at the time of granting a preliminary decree if the defendant fails to obtain leave to defend in terms of Section 13 of this Act, with a minimum of Rs 3,000,000/- (Rupees three million).
In this definition, the phrase “obtain the leave to defend” is key to understanding the full implication of this law. This means that the defendant cannot automatically defend against the claim but must apply to the tribunal to get permission to present their defense. In case of their failure to obtain leave to defend, the allegations in the claim are deemed to be admitted.
The tribunal will then pass a preliminary decree of general damages in favor of the person defamed, which, according to Section 2 of the said Act, is a minimum of Rs 3,000,000/-. The story does not end here; there is another layer of deterrent to protect the defamed person. The preliminary decree passed under Section 15(1) cannot be stayed either by the Tribunal or the Lahore High Court. I would be adding to my argument through these columns very soon.
Qamar Bashir
Copyright Business Recorder, 2024
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