June Issue 2010

“When things are simmering, nobody wants to take a position”
– Babar Sattar, Lawyer

Babar Sattar is an Islamabad-based lawyer and columnist. In an interview with Newsline, he discusses the powers of the judiciary and the executive in the context of the recent ban on Facebook.

Q: In terms of the Facebook ban, can partial censorship be exercised by the government and court to uphold the constitution and the laws of the country — and by laws here I am referring to the blasphemy laws?

A: This is not your regular trial, so it is not the Pakistan Penal Code being implemented here. As a constitutional matter, a group of citizens have gone to the High Court and said — through a constitutional petition — uphold the constitution, uphold Article 2A.

In this particular case, I don’t even think it is a question of section 295 of the penal code; 295 talks about blasphemy as a crime in Pakistan. The laws of Pakistan don’t apply to the rest of the world. So you cannot possibly make out an offence extra territorially.

And even if that were true [that the crime had been committed in Pakistan], it wasn’t for the High Court to intervene. It would have been the ordinary sessions court. You would file an FIR with the police, they would register a case, there would be a trial in the sessions court and the sessions court would pass a sentence which would then go to the High Court in appeal.

Q: Since the constitution safeguards Islam, the Quran and the Prophet (PBUH), then blasphemous content would be illegal in the country. But can the courts decide to ban a website completely on the pretext that because its management failed to take action they are thus party to the blasphemy?

A: No, I don’t think it can do that. A court has, in my opinion — and most reasonable people would agree — no authority to strike down things it thinks are wrong. It has the authority to strike down things it thinks are illegal. There is a distinction between the two.

Illegal has to be determined in accordance with specific provisions of the law. Wrong are many things which might not be illegal but they are still wrong because there are ethical and moral standards that overshoot legal provisions.

So, a page with blashphemous content would be illegal but the website’s policy would be wrong.

Q: The court can ban a webpage because it is illegal, but if the website is to be banned, then is that the mandate of the government?

A: The government, as a policy matter, can take that view.

You know, every once a year you will get an email saying let’s not give any business to Starbucks because it gives a lot of money to Israel. Those are personal positions people take, but that cannot be a legal position.

The court has to set some kind of a measure. It cannot dictate what the law should be. That is a discretion that the parliament has.

There is a big debate around the world as to what judges can do in courts. And the argument is that they have soft discretion and hard discretion, meaning thereby that they can interpret words and that they have slight discretion in interpreting words in a certain way.

There are rules of construction and rules of textual interpretation, rules of statutory interpretation that they have to follow, but they still have some discretion in determining what the law is.

Q: Again, in terms of the Facebook ban, what if the court decides to impose a permanent ban on June 15? Could it be challenged with the argument that since every decision is subject to law, the ban infringes Article 4 and 19, basically your fundamental rights?

A: Yes, that is the argument someone would take up in an appeal before the Supreme Court.

But the ban, it can just be struck down in judicial review because it is an executive action and if it is overbroad, or against Article 19.

Q: But that would mean that a precedent would be set.

A: By the High Court, yes. But there is a precedent even by the Supreme Court. It is a 2006 decision by Justice Iftikhar Chaudhry where he said all such pages that have sacrilegious material should be banned.

An interim order is not a precedent, it is the final order and the reasoning of the judge that is going to be binding on the lower courts and the PTA, and it is going to be a precedent for the High Court.

In this case there was an interim order saying the website needs to be shut down. And so to the extent that the final order says you’ve got to shut down the site, the long-term damage of this interim order is not going to be there.

Q: Who decides what is wrong and what is right, what is sacrilegious and what is not? Is it the executive?

A: The executive can decide and it is subject to review by the court and eventually it lies with the court to determine. Every legal question goes to the court.

The problem is, some judges aren’t even conscious that they are allowing their personal morality and ethics to interfere with or inform their judicial decisions. So that recognition, that debate is simply not there.

Some judges think, “If I think something is wrong, it is clearly my job to shut it down.” If that is the way you are thinking, you are not thinking that there has to be some legal basis, some constitutional basis [for that decision]; that there has to be continuity in the kind of textual interpretation I am undertaking to do some of these things.

Q: Self-regulation is not a policy that is applied or allowed here? But constitutionally and legally, is that a valid point?

A: I think that could be an argument, but the bigger problem against that argument would not be its reasonableness, it would be collective public opinion that is so incensed by something like this that somebody won’t even try and make that argument in that court.

Q: The parliamentarians make the laws, but the courts interpret the laws, so basically it comes down to the language of the law itself.

A: The parliament can always go back and say that we didn’t say this and so we are amending that language because it has been interpreted in a certain way. They can override a judgment of the court.

The problem in this particular case is that eventually, whether or not it is in conformity with the provisions of the constitution, it is for the court to decide. They have the power of judicial review and judicial review simply means you’ve got to decide whether the provisions of a law are in conformity with the constitution.

Q: This is just like a back and forth ball game.

A: Yes, that is what we call separation of powers.

Q: There is an overlap obviously.

A: Yes, the problem in this situation is — and we have seen it in the past — that there is a coercive social consensus which evolves in favour of anything that is done in the name of Islam.

Once a court gives a judgment, in my opinion, it will not be possible or at least it will be extremely hard for the legislature to come out and say otherwise because that will be political suicide. Even for the Supreme Court it would become hard because everyone’s faith is under question, and anyone who steps on the other side is seen as being sacrilegious and hence liable to be killed.

Q: Until a few days ago, even the government had been very tight-lipped. It was not until the PM directed to open up YouTube that any official statement came from its side.

A: This is a trend we have seen before, that when things are simmering, nobody wants to take a position. They know they can do things when they cool down, when it is not front-page news. And that is the hypocrisy which we’ve dealt with, with religion in this country for the longest time, and it seems like we are going to continue to deal with it.