The writer is a lawyer based in Islamabad.
The “Everybody Draw Mohammed Day” competition hosted on Facebook, our society’s response to the offensive competition and the banning of the entire website along with hundreds of other websites by Pakistan Telecommunication Authority on Lahore High Court’s orders highlights the dangerous entanglement of law and religion in Pakistan. The competition was crass and malicious for it was initiated with the intent to offend Muslims by mocking their belief that creating depictions of the Prophet (PBUH) are explicitly forbidden. It not only anguished Muslims, but also most fair-minded people around the world who agree that liberty and freedom don’t vest in anyone the right to hurt others through their speech.
Let us understand that while free speech is a fundamental human right, it doesn’t trump all other fundamental rights. For example, the law of defamation is a fetter on free speech and is a sensible effort of civilized societies to strike a balance between the competing rights to free speech and privacy. Also, the law doesn’t regard hate speech – that disparages a person or a group on the basis of some identity or characteristic such as religion, nationality, sex, ethnicity etc. and incites disorder or violence – as a permissible category of protected speech. But let us also acknowledge that hate speech, no matter how abhorrent and contemptible, doesn’t justify violence as a retaliatory measure.
The Facebook competition is indefensible by any ethical or moral yardstick. The Facebook policy allowing individual users to create hate pages under the garb of individual autonomy and free speech is not just misconceived but also discriminatory. For example Facebook doesn’t allow pejorative speech against the Jews, and rightly so. But if anti-Semitism is forbidden, how can bigotry against Muslim and their revered beliefs be protected in the name of fundamental rights and free speech? Thus, the relevant question, especially for Pakistanis, was not whether what Facebook did was right or wrong, but how to respond to such insensitivity and hypocrisy. But unfortunately this is not how public debate over the issue has come to be structured in Pakistan.
Notwithstanding the fact that almost everyone in this country has been outraged by the Facebook competition, (i) the demand of the religious-right that anyone proposing a response to the offensive Facebook page other than complete ban of the website is also an apostate liable to be maimed, (ii) the Lahore High Court’s decision adhering to the rightist logic and banning Facebook altogether, and (iii) the response of the state as a silent bystander in face of the religious right coercing and intimidating opponents of overbroad internet censorship in Pakistan, has highlighted the vulnerability of our fundamental right to free speech, our right to freedom of information and as well as our right to practice our religion freely.
The Facebook ban has raised some disturbing questions that must be addressed to take measure of the kind of state and society we are becoming. On what basis do courts exercise their jurisdiction, who determines the limits of judicial intervention and can judges allow personal morality to influence their interpretation of the law? What is the role of the state in upholding fundamental rights and striking a balance between competing rights? And how do we recover from being a society where whoever speaks most virulently against acts or words deemed sacrilegious and threatens indiscriminate violence against all dissenters comes to be seen as speaking in the name of God?
Reasonable people can disagree about the efficacy of a strategy or action. But when did we become complacent about the current state of our collective life wherein there is no public space for anyone to offer strategies to protect and defend our religious beliefs if they are different from those dictated by the most radical elements within our religious thought? People taking offense to others scandalizing their religious beliefs is acceptable. But when did we become a community that came to accept violence as a legitimate manifestation and response to offensive words or actions of another?
If members of the civil society opposed to an outright ban of Facebook cannot propose alternative measures, that they perceive as more effective, to counter the Facebook caricature competition and the company policy and larger social and legal context that allows such hate speech and sites, during a press conference at the Karachi Press Club without being exposed to physical violence, why do we get surprised when the Taliban of Swat decide to impose their deformed view of Islam through the barrel of the gun, or Faisal Shehzad attempts to blow up a car and ordinary civilians in Times Square because he might be opposed to US foreign policy. Is the common strand of intolerance coupled with violence – in varying degrees of course – underlying all these situations too hard to discern?
And what role must the state play? Should it stand aside and watch baton-dangling fanatics claim a monopoly over the understanding of God’s divine message and bully fellow citizens into silence. Should it intervene when maulvis manhandle a technology-savvy Pakistani who proposes a forceful Internet campaign to convince the world that the Facebook caricature competition is wrong, as a preferred alternative to banning Facebook altogether? Should it intervene when maulvis decide to function as moral brigades, patrol neighborhoods, and shut down or burn CD shops? Or should it wait till a group of maulvis organizes itself into a militia, flog women and slaughter men publicly, and declare that anyone who is not a Taliban is an infidel?
And finally, what is the legal basis of the orders passed by the Lahore High Court? Under Article 2A of the Constitution the state is obliged to enable Muslim citizens of Pakistan to order their lives in accordance with the teachings and requirements of Islam. Article 20 guarantees the right to profess, propagate and practice religion. Has Justice Ijaz Ahmad Chaudhry then found that the ability of anyone within the territory of Pakistan to voluntarily access hate sites hosted outside the country contravene the State’s obligation to enable Muslims to order their lives in accordance with the teachings of Islam. And even if so, how is access to non-hate pages of Facebook disabling Muslims from living their lives in accordance with Islamic teachings?
What about the right to free speech protected under Article 19 and the newly founded Constitutional guarantee of freedom of information? Even if one disagrees with its efficacy, the demand for shutting down Facebook entirely as a mark of protest in an effort to get the Facebook to change its policy can be a valid political position. The government can take such position as a matter of policy. But how can the court dictate such an order and justify it in law? Aren’t all fundamental rights guaranteed by our Constitution on an even keel? Is the order of the Lahore High Court not overbroad then?
While giving a strained construction to the right to practice one’s religion freely, was the court not under an obligation to ensure that this right is upheld in such manner that it imposes minimum fetters on other fundamental rights such as the right to information and free speech? Further, there is near jurisprudential consensus that foreign affairs fall outside the domain of the judicature. On what legal basis did the Lahore High Court order the Federal Government to lodge “an official and sovereign protest” with the US government over the Facebook issue? If the judicature finds itself more qualified to manage all aspects of national life, should it not start instead by imposing a ban on drone attacks in an effort to protect right to life?
We urgently need a dispassionate debate over the role of religion in our state and society. Without acknowledging the elephant in the room, we will fail to avert our slide into the morass of intolerance and violence.