June Issue 2010

It’s been over a month since Facebook, YouTube and other sites were temporarily blocked in Pakistan. But the controversy is far from over. Early in June, the government expressed it’s desire to try Facebook founder Mark Zuckerberg for blasphemy here in Pakistan while on June 23 the Bahawalpur bench of the Lahore High Court directed the Pakistan Telecommunication Authority (PTA) to immediately block nine websites for publishing sacrilegious material; the websites included Yahoo, MSN, Hotmail, YouTube and Google. As of June 30, the PTA had not taken action.

Below is an article from the June issue of Newsline that asks the question, “Was the blanket ban on Facebook and subsequently other websites within the ambit of Pakistan’s Constitution?”

On May 19, Facebook.com was blocked across Pakistan. But the directive to ban the website wasn’t initiated by any federal ministry. The temporary ban was the result of a stay order passed by the Lahore High Court in writ petition filed by Zulfiqar Ali of the Islamic Lawyers’ Movement (ILM) under Article 199 of the Constitution of Pakistan.

The aggrieved party’s position was that the government did not take any action against the “Everybody Draw Mohammed Day!” page on the popular social networking website and that it was negligent of its duty, which is to uphold the constitution and enforce the law. The government’s direct failure to act and address the issue, especially since it is responsible for “monitor[ing] and check[ing] the websites and … ensur[ing] that the emotions and belie[f]s of the Muslims of Pakistan [are] not disturbed,” left the petitioner “with no other alternate … except to invoke the extraordinary constitutional jurisdiction of th[e] … Court.”

And while the petitioner doesn’t specifically mention Article 2A of the Constitution, it is likely that under this clause the court took action. Article 2A states that it is the constitutional duty of the government to enable Muslims to live their lives in accordance with Islamic injunctions and thus take action against anything that prevents them from doing so. Further, while Article 19 guarantees “every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press,” it also clearly stipulates that this freedom is “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 … or incitement to an offence.”

As such, under the constitution and the law, the ILM’s claim that the government should have taken notice and taken down the page is legitimate and easily defendable. But while going to court to hold the government accountable for not doing so is within the constitutional sphere, was the ILM’s prayer to place a blanket ban on Facebook and the LHC’s Stay Order of the May 19, 2010, within the ambit of the constitution?

After hearing the matter on May 31, another interim order was passed by the court, lifting the ban on Facebook. This was welcomed by many lawyers and citizens as no law should be applied in a manner that infringes other fundamental rights and/or contradicts other articles of the constitution. Just blocking the impugned account and/or page would have constituted reasonable compliance with the constitution and law, thus safeguarding the emotions and beliefs of Muslims. By imposing a blanket ban, some legal experts argue the concerned authorities transgressed the constitutional limitation on the fundamental right of expression.

A blanket ban ostensibly violates several articles of the constitution, infringing the fundamental rights that are guaranteed to the citizens of Pakistan. Article 4 of the constitution states “no action detrimental to the … liberty … of any person shall be taken except in accordance to law,” 4(b) “no person shall be hindered in doing that which is not prohibited by law,” and that 4(c) “no person shall be compelled to do that which the law does not require him to do.”

The blanket ban on Facebook and numerous other websites according to some lawyers not only infringed upon the rights given to citizens under Article 19, denying them the freedom of expression, but also violated their right to information restored to them under new Article 19A of the 18th Amendment.

The application of the ban by the Pakistan Telecommunications Authority (PTA), the regulatory body responsible for censoring and filtering Internet traffic, also came into question. Many wondered if the PTA is free to block other sites entirely at its discretion?

The PTA falls directly under the federal government and both parties were taken to court for not upholding the constitution. It is the mandate of the High Court and Supreme Court to ensure that the federation and other concerned authorities comply with the law of the land. Therefore, the court in directing the PTA to take action was also complying with its constitutional duty, even though, as established above, the complete ban was seen as an overbroad interpretation and application of it.

But the PTA went beyond the court’s directives. The authority went on to block approximately 800 websites on the grounds that they contained anti-Islamic content. Citizens were part of the process as they kept a PTA hotline busy as they called in to register complaints against “offensive” websites. Was this an example of the PTA overstepping its authority?

In this particular case, the PTA was following the explicit orders of the LHC and the federal government. The May 19 court order cites the reply of the federal government to the LHC: “The federal ministry on the directions issued by this court has already directed the Pakistan Telecommunications Authority (PTA), which is the Agency responsible for the enforcement of GoP decisions regarding the blockade of websites, etc., to immediately block the website URL:http://facebook.com and any of its affiliate or proxy websites.”

A report submitted by the PTA to the LHC, explained the course of action the PTA had taken after the court’s orders and the “government’s directions on blocking anti-Islamic content on Facebook and other websites.” In the report is also mentioned that the ICT directorate “search[ed] for anti-Islamic content over the Internet on its own,” and reported it to the enforcement division to impose the ban. Had any of its licensees not complied with the PTA’s directives to shut down certain websites, the PTA could have taken unilateral action against them. Such a situation did not arise.

Each went a step ahead of the other. When the language of the petition, and government’s orders and the laws themselves are so weak and ambiguous that they leave several loopholes, misuse of power and overbroad applications are only to be expected. In this case, it seems that each authority has been granted absolute discretion in carrying out its functions. While it is agreed that the mandate of the organs of the state is to uphold the constitution and enforce the law, it must be done within reasonable and legal parameters. However, when they themselves decide the reasonable parameters, fair application and enforcement of the law cannot be guaranteed.

It is important to note that while the ban has been lifted, it is perhaps only temporarily until the next hearing on June 15. What could the sudden entry of Joe Sullivan, a nominated official of Facebook mean? Will he be asked to defend the company’s policy? And could Facebook actually be tried under Pakistani law?

There are blasphemy laws that exist in Pakistan. Section 15 of the Pakistan Penal Code deals with offences, relating to religion. The offences are punishable under Pakistani law. The main offences are as follows:

– Article 295-A: “Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs”;

– Article 295-C: “Words, either spoken or written, or by visible representation or by any imputation, innuendo, or insinuation, directly or indirectly, [that] defile[s] the sacred name of the Holy Prophet Muhammad (peace be upon him)”;

– Article 298: “Uttering words, etc., with deliberate intent to wound religious feelings” and 298-A. “Use of derogatory remarks, etc. in respect of holy personages.”

The “Everybody Draw Mohammed Day!” page undoubtedly violates all of the above. The argument that Facebook “administrators” (read: the company) are party to the blasphemy, as it was within their means to control it and block the page but they didn’t do so, was used by the ILM to secure the May 19 stay order, under which the entire domain was banned.

However, the Pakistan Penal Code and more specifically the blasphemy laws apply to any person who commits blasphemy as well as to any one who aids or abets the crime. But no one within the jurisdiction of Pakistan committed the alleged crime. In this case, if criminal proceedings are initiated, the administrators of Facebook, who are residents of the US, cannot be arrested or punished, as they are not within the jurisdiction of Pakistan’s courts.

Those who initiated the impugned Facebook group and committed blasphemy live outside of Pakistan and what they have done may or may not be a crime in their country. If it is, they can only be tried under the laws of their countries. The situation would have been different if a subsidiary of Facebook had been incorporated under Pakistani Law. Such incorporation could have opened the door to the possibility of local administrators of Facebook being tried under Pakistani Law.

In ex parte hearings, the courts normally, by way of abundant caution, pass ad interim orders granting relief requested by the petitioner. Thereafter, the matter is investigated further before the next date of hearing. But as has been evident in this case, the phraseology of the laws themselves leaves room for various interpretations, which further complicates matters. The relevant laws need to be redefined in such a manner that their interpretation by the courts and the various authorities is fair in letter and spirit.