Freedom of expression in conflict situations: Pakistan
A tradition of information control

By I. A. Rehman

Pakistan came into being in August 1947 in circumstances that made its founding fathers acutely conscious of its security needs. To an extent this was understandable as the State had no history of its own, it had been born in a climate of tension and hostility with a bigger neighbour (India), and with a quite a few questions marks on its ability to survive.

The high priority attached to matters of survival and security made the State’s managers extra-sensitive to dissent and criticism. They were easily persuaded to justify and retain the measures the erstwhile colonial authority had devised to control and manipulate the media and they were not wanting in efforts to make governance more secret than before.

The state of media at the time of independence, too, was not wholly conducive to the growth of a strong, independent and transparent media. There were only a few newspapers that catered to a small minority of readership in a country where literacy was around 12 percent. The newspapers were divided into a small English press and a larger press in indigenous languages. In one part of the country (East Bengal) Bengali language newspapers commanded much greater audience than newspapers in English. Similarly in West Pakistan newspapers in Urdu quickly acquired larger leadership than newspapers in English. The radio in public sector covered a small area and was strictly controlled by the government.

Relations between government and the press started becoming bitter soon after independence as a result of the conflict between the central leadership, that wished to concentrate powers in its hands, and the units of the federation, that demanded respect for pre-independence pledges that the constituent units of the federation would be autonomous. With the passage of time these conflicts grew more and more serious until the country was dismembered in 1971 and its more populous part (East Bengal) broke away to establish the Republic of Bangladesh.

The State used a number of instruments to control the flow of information and to punish dissent.

First, the British period enactment, the Press and Registration of Books Act, was narrowly interpreted to curtail the right to publish newspapers. The Act only required the printer and publisher of a newspaper to file a declaration with a District Magistrate so that the authorities could determine who was responsible for publishing the newspaper. The District Magistrate could refuse authentication of the declaration only if the proposed name of the newspaper was already being used by an existing publication. Over the years the declaration was turned into a licence that could be refused to a publisher on a number of grounds. The Act was replaced with the West Pakistan Press and Publication Ordinance 1960, which made authentication of declaration much more difficult than before.

A district magistrate could refuse authentication if the government was satisfied , on the basis of information in its possession, that the printer or publisher was likely to act in a manner prejudicial to the defence or the external affairs or security of Pakistan. Or if the publisher did not have adequate financial resources or if the editor lacked educational qualifications or training or experience in journalism. These conditions were retained when the Ordinance was revised in 1963 and remained in force till 1988, when some of the clauses of the ordinance were struck down by the judiciary. The law that replaced the Ordinance was called Registration of Printing Presses and Publications Ordinance. This Ordinance held the field intermittently till a new law, Press, Newspapers, News Agencies and Book Registration Ordinance, was issued in October 2002. The only significant development has been that though since 1988 it has been difficult for the authorities to withhold authentication of a declaration, the right to publish is not yet wholly recognized.

During 1947-1960 the government also relied on the Press (Emergency) Powers Act 1931 which had been enforced in British India in order to control nationalist activity. The enactment was meant to be a short-term law but the Government of Pakistan retained it on the statute book till 1960 when it was merged with the Registration of Books Act into the Press and Publications Ordinance. Under the Act action could be taken against publications on a number of grounds and it was frequently used to suppress dissent, especially the demands by federating units for adequate share in power.

The State equipped itself with several other laws that increased its power to control and punish the press. An Official Secrets Act had been adopted in 1926 and it was used against journalists by holding their disclosures to be contrary to the security interests of the State.

In 1952 came the Security of Pakistan Act. This law, which is still in force, gives the Federal Government the power to require an editor, publisher, or printer to disclose the source and to prohibit the publication, sale or distribution of a document and to forfeit the same if it is of the opinion that the document contains matter likely to endanger the defence, external affairs or security of Pakistan. Under it any police officer may be authorized to carry out a search and seizure operation. The law also empowers the federal and provincial governments to impose pre-censorship

The Maintenance of Public Order Ordinance, issued in 1960, includes the many harsh provisions of the Security Act and quite a few fresh ones. Authorities can prohibit the publication of any material, require a publisher to publish material supplied by government within the time and in the manner prescribed by it, impose pre-censorship, close down a publication or a press for a specified period and force a journalist to disclose his confidential sources. It also empowers the government to detain people including journalists.

In addition the Penal Code contains several provisions that have often been used to restrict freedom of expression and flow of information.

A novel provision, Section 123 A, describes as an offence anything which is prejudicial to the safety or the ideology of Pakistan or which amounts to “abuse” of Pakistan. Since the ideology of Pakistan has never been defined, the authorities are free to apply this provision to anything that displeases them. It is difficult to imagine a clear interpretation of the term “abusing Pakistan”. The provision is a product of the mind that has been branding realistic portrayal of life in Pakistan in the information media or in theatre and cinema as a criminal attempt to malign the country.

The provision that covers sedition (Section 124 A) also is extremely broadly worded. It has been invoked to punish criticism of government and has been applied to journalists on many occasions. In most cases however the section has been invoked to frighten journalists and harass them by keeping cases pending for long periods. Thus the law is used to achieve the objective of ensuring a docile media.

Section 153 B deals with incitement of students or others to take part in political activity that disturbs or is likely to disturb public order. This section is an unnecessary insertion since incitement to disorder is already covered under other provisions of the Penal Code.

Section 295 C, known as the principal blasphemy provision, also threatens the right to freedom of expression. This section reads as follows:
Use of derogatory remarks etc. in respect of the Holy Prophet: Whoever by words either spoken or written or visible representation, or any imputation, innuendo, or insinuation directly or indirectly defiles the sacred name of the Holy Prophet Muhammad (Peace be upon him) shall be punished with death.

The provision has been assailed vigorously by many leading jurists and human rights advocates as being much too vague and contrary to the principles of modern lawmaking. It was sued to prosecute, among others the late Akhter Hameed Khan, foremost pioneer in alternative social and economic development, for having written a poem that a conservative cleric considered blasphemous. A Peshawar journalist was tried under this section. He was sentenced to life imprisonment and remained in jail till he was acquitted in appeal. Several provisions of the Penal Code impose restrictions only on Ahmedis who were declared by the State to be outside the pale of Islam while they claimed themselves to be Muslims. They are being hauled up for using Muslim expressions in letters or on invitation cards.

Section 99 A of the Criminal Procedure Code also allows the executive extraordinary powers to proscribe publications. It authorizes provincial governments to seize any publication which appears to contain “any treasonable or seditious matter or any matter which is prejudicial to national integration or any matter that promotes or is intended to promote feelings of enmity or hatred between different classes of the citizens of Pakistan or which is deliberately and maliciously intended to outrage the religious feelings of any such class, or insulting the religions or religious beliefs of that class”.

The Anti-terrorism Act of 1997, which was made to prevent terrorism and sectarian violence and to provide for speedy trial of heinous offences, also has been used to punish and harass journalists, especially those who venture into conflict zones.

The Act defines terrorism in extremely broad terms under Section 6: ‘ terrorism’ means the use or threat of action which involves the doing of anything that causes death, grievous violence against a person or grievous bodily injury or harm, grievous damage to property, kidnapping for ransom, hostage-taking or hijacking, stoning, brick-batting or any mischief to spread panic, firing on places of worship or congregations or random firing to spread panic, burning of vehicles or any serious form of arson, and extortion of money or property. Terrorism also means action or threat designed to threaten and intimidate the government or public/ community or create a sense of fear or insecurity in society, or when the use of threat is made for advancing a religions, sectarian or ethnic cause.

One of the offences under this law is use of words, display/publication/ distribution, or possession of written or audio - visual material that threatens, abuses or insults a sect/ group and is intended to stir up sectarian conflict or sectarian hatred is likely to be stirred up. The possibility of journalists’ falling under the mischief of this provision is obvious. More specific is section 11-W of the Act and it says:

II-W. Printing, publishing, disscminating any material to insite hatred or giving projection to any person convicted for a terrorist act or any proscribed organization or an organization placed under observation or anyone concerned in terrorism . (1)A person commits an offence if he prints, publishes or disseminate any material whether by audio or video cassette or by written photographic, electronic, digital, wall-chalking or any other material which incites religion sectarian or ethnic hatred or gives protection to any person convicted for a terrorist act, or any person or organization concerned in terrorism or proscribed organization or any organization placed under observations.

Some recent cases
That these legal provisions have often been used to control the functioning of the media can be gauged from some of the incidents reported in 2004.

Five eveningers published from Karachi were banned for 30 days and the printing presses sealed on the ground that they had been publishing obscene photographs. Action was purported to have been taken under Section 292 of the Penal Code which incidentally does not provide for banning of publications.
One of the most bizarre instances of suppression of newspapers in Pakistan involved the banning of Islamabad Times before the first issue of the daily was published. On August 31, 2004, a week before the Urdu daily was scheduled to be launched, officials in plain clothes entered the printing press in Rawalpindi where the paper was being put together and ordered stoppage of all work on the job. When Abdul Aziz, the printer, asked for a reason the officials left, only to return with a police party that arrested the printer, his son and two employees, closed the press and seized the equipment. The editor, Masood Malik, said he had completed all legal formalities for bringing out the daily. Taking note of the matter, Reporters Sans Frontiers suspected that the editor had invited administration’s wrath for having put General Musharraf an unwelcome question at his press conference in 2001 after the aborted summit with Indian Prime Minister Attal Bihari Vajpaee.

‘Kargil International’, a monthly published from Skardu, Northern Areas, was banned by the home department and all copies of the magazine confiscated on September 8, 2004. According to the Chief Editor, Engineer Manzoor Husain Parwana, no notice was served on the paper nor was any ground for action against it communicated to him. About two months later, the magazine’s publisher and Managing Editor, Ghulam Shehzad Agha, was arrested and thrown in prison, apparently on the basis of the FIR registered by the Skardu Police Station House Officer on November 3, 2004, on orders from higher authorities. The FIR stated that “Ghulam Shehzad Agha, aided by Manzoor Husain Parwana, Editor, had published in the July-August 2000 issue of Kargil International material designed to instigate the public against Pakistan President, General Pervez Musharraf. Besides maligning the President of Pakistan, General Pervez Musharraf, they have committed libel on him, and both of them are liable to action…… Therefore, as ordered by higher authorities, this case against the two persons / accused is instituted for throwing mud on President of Pakistan, General Pervez Musharraf, committing libel and instigating the people. Both persons / accused have committed offences under Sec. 501 and 505-B PPC.”

Till the time of writing Engineer Manzoor Husain Parwana, Chief Editor of the magazine, has not been arrested as he has stayed out of Northern Areas. On November 9, 2004 he issued a statement denying all charges against him. He said he had been fighting for the rights of the two million people of Gilgit Baltistan for 10 years, that he had been publishing stories of the bravery of the real heroes of the Kargil war (the soldiers belonging to the Northern Light Infantry) and the problems faced by their widows and families, and had demanded the formation of a commission to inquire into the Kargil conflict.
The mere accusation of terrorism has sometimes been sufficient to cause serious harassment and agony to any person, especially in the post- 9/11 environment.
A former head of the Inter- services intelligence (ISI) filed a complaint with an anti-terrorism court to the effect that by publishing a story that defamed him the reporter and the chief editor of an English daily (The News) had committed an act of terrorism. The respondents had to suffer harassment and hardship caused by the allegation and the obligation to appear in court for many months before the court decided that publication of a report against an individual could not be considered an act of terrorism, something that should have been obvious to it at the outset.

Journalist and film - maker Khawar Mehdi, who had criss- crossed Afghanistan a number of times during the resistance to the Soviet forces and made many films, was arrested, along with two French journalists, in December 2003. The Frenchmen were accused of traveling to Quetta without permission. They were soon afterwards put on trial and each was sentenced to imprisonment for a year and to pay Rs. 100,000 in fine. On appeal their sentence was changed to payment of Rs. 200,000 each as fine and they were allowed to return home. Khawar Mehdi was treated differently. For quite some time the administration denied arresting him, even while newspapers claimed that he had been caught for making untrue films and defaming Pakistan and the head of the state himself had attested to his “treachery” for a pittance. Eventually he was produced before an anti-terrorism court which charged him, along with two other accused ( and four absconders), with making a “fake video CD documentary film where in showing a fake training camp of Taliban while giving training to the Taliban in the art of warfare.”
Khawar Mehdi was released on bail. Eventually he decided to jump bail and ran away from the country.
Sarwar Mujahid, a correspondent working for a leading Urdu daily. Nawa-i-Waqt, was arrested and ordered to be detained for three months. He was punished for reporting excesses committed by a paramilitary force called Rangers on tenants settled on military farms in District Okara, about 80 miles from the provincial capital Lahore. The detention order alleged that the reporter had been involved in anti-state activities. He remained in prison for nearly two months before the Lahore High Court accepted his habeas corpus petition and ordered his release. The court observed that the grounds of detention were not supported by evidence.

Much longer period in prison was served by Rasheed Azam, a journalist based at Khuzdar, in Balochistan province. He was arrested on charges of sedition on the ground that he had been distributing posters in which the army had been maligned. For several months his bail applications were spurned arbitrarily. Incidentally, nothing was done against the political leaders who accepted responsibility for publishing and circulating the posters for which the journalist had been thrown in prison. After his case had been taken up by national and international human rights organizations (Human Rights Watch, New York, alleged that the detainee had been tortured in prison), Rasheed Azam was admitted to bail.

Apart from banning of publications and attacks on the freedom of journalists the government of Pakistan has been known to coerce newspapers into docility by withholding government publicity from publications it suspects of independence. The most recent case involved the Nawa-i-Waqt group of newspapers, one of the largest in the country. The matter was raised by the associations of newspaper proprietors and editors at various forums. They were supported by journalist organizations and human rights activists. It was only after several months that the government relented partially although the threat to the publications was never withdrawn.

The press freedom report for South Asia issued by International Federation of Journalists in May 2004 observed that there had been a marked deterioration in the state of the print media during the preceding 12 months. The organization noted that journalists had been charged with some of the most serious crimes possible, including blasphemy and sedition, and that torture, arrest, murder, and imprisonment were some of the measures used against journalists.

The Council of Pakistan Newspapers Editors (CPNE) complained last year that the government had threatened action against some newspapers after accusing them of publishing material that projected terrorists in a favourable light. The government’s explanation was that it had no intention of interfering with the free functioning of the press but that it would not hesitate to take action against anyone who did not realize the national duty to fight terrorism.

Early in 2005 the CPNE was constrained to condemn government efforts to control media through the practice of issuing press advice. The organization expressed concern over tragic incidents in Gilgit and Sui (Balochistan) and referred to government efforts to prevent reporting of events through press advice. The CPNE alleged that release of government advertisements to newspapers that did not abide by the press advice had been suspended. The Council called upon the authorities to discontinue its vengeful actions against newspapers, particularly suspension of advertisements to publications identified as unfriendly to the regime.

Sometimes action against journalists is not taken under media-related laws but other regulations. A recent incident was the manoeuvre to disrupt the functioning of FM radio 103 which among other things used to broadcast BBC news bulletins. It was said that the key staffers of the unit had caused public nuisance at a hospital and had been taken into custody. They were kept in prison for a couple of days before being allowed bail. Subsequently attempts were made to close down the service on the ground that it had not received permission to telecast BBC news.

Legal action under various pretexts apart, there are persistent reports to the effect that the establishment is not above using underhand methods to browbeat journalists and force them to mend their ways. It is not always easy to prove the allegations that are made by victims of violence who have attributed their ordeal to officialdom’s prescribed punishment for their attempts to expose wrongdoers in the administration. The victims include journalists working for newspapers as well as in the electronic media.

The experience of a popular non-official TV channel can be cited in evidence. Within hours of the telecasting of a somewhat irreverent programme the office of the organization was ransacked and considerable damage was caused under the nose of a police post. The suddenness of the assault, the efficient manner in which it was conducted, the immunity enjoyed by the raiders and the freedom and ease with which they managed to escape invited comments that no non-official agency had the means or the expertise to carry out this kind of raid. The management of the TV channel accordingly invited the most notorious intelligence agency for an exchange of ideas in the course of which the television producers were given advice on the do’s and don’ts of their business. Further, the programme that has caused offence to the establishment was discontinued. Suspended, the organization said, but till the time of writing there was no sign of assumption of the programme.
Secrecy as a rule

Authority in Pakistan as a rule wishes to operate largely in secrecy, allowing the public information only about its decisions or orders. The citizens are not supposed to be entitled to know reasons and the process leading to a particular decision. This obsession with secrecy assumes extraordinary proportions whenever the country faces a conflict, be it internal or with an external party. Glaring instances can be cited from Pakistan’s history.

Soon after independence an armed conflict with India broke out in Kashmir. The government did not deem it necessary, while the fighting was going on nor when the ceasefire was accepted, to take the people into confidence and explain to them the rationale behind its actions.

In Septmeber 1965 when India moved its troops across the international frontier and targeted Lahore, the second largest city in the country, the propaganda machinery repeatedly emphasized the Indian perfidy in starting a war in the darkness of night and without notice. The fact however is that the Indian action, which was in response to Pakistan’s push into Indian part of Kashmir, had been expected for quite some time in many quarters including the government. A representative of the Central Government visited Lahore on the eve of outbreak of hostilities to appeal to media persons to support the government in the crisis that was brewing. It was suggested to him that the people should be taken into confidence so that they could prepare themselves for the consequences of war. The plea was turned down on the ground that disclosure of the possibility of an India-Pakistan war would cause panic and this the government did not want.

In 1971 the people of West Pakistan were never given an authentic account of what was happening in the eastern wing. Not only truthful stories of Bengali people’s resistance to military operations or the atrocities inflicted on the civilian population, especially women, were not made available to the people, they were nourished on falsehood and concoctions. When everything was nearly over in East Bengal and surrender to Indian forces was imminent the people in West Pakistan were prevented from learning even a part of the truth.

A large-scale military operation was launched in Balochistan in the middle of seventies; the people were never taken into confidence about the details of the operation and the cost borne by the civilians.

In the recent past, conflict with India broke out in the Kargil area of Kashmir. Media persons were denied access not only to the place of conflict but also the territory around it. Only selected journalists were taken to see what the military authorities were prepared to show them and reports of casualties to local community were suppressed. Those who wanted to demonstrate for the rights of the affected families were subjected to violence and detention.

During the better part of 2004 military operations were carried out in South Waziristan, a part of the tribal area, ostensibly to flush out terrorists, many of them believed to be foreigners, who had entrenched themselves in the area. Again access was denied to all those who wanted to assess the situation. Media persons were barred from entering the area and so were lawyers belonging to Frontier organizations.

More recently the military appeared in and around Dera Bugti and Sui in Balochistan ostensibly to guard gas fields and frustrate the attempts of armed militants to spread panic and damage precious installations. The same regime of denial of access to the affected area and the people concerned has been in evidence.

The policy of withholding information from the public makes no exception for their elected representatives either. In July 2004, an opposition member of the Senate (upper house of parliament), Farhatullah Babar, a former managing editor of the daily Frontier Post, compiled for circulation some questions / motions / resolutions “that were disallowed from being raised in the Senate.” Some of the questions and the grounds, advanced for disallowing them were:

Question 1: Will the honourable minister for defence be pleased to state whether any inquiry was held into the Kargil incident and if so whether and when its report will be made public?
Reply (by a section officer, on behalf of the Senate Chairman): “…… the information asked for through this question is of secret and sensitive nature. The Chairman, Senate, has, therefore, been pleased to hold the question to be inadmissible under rule 47 (xvii)(d) of the Rules of Procedure and Conduct of Business in the Senate 1988.”
The reply makes little sense. The answer to the first part of the question could only be ‘yes’ or ‘no’, and it is impossible to imagine how that answer could be considered ‘of secret and sensitive nature’. In case the answer to the first part was ‘no’, there was no need to answer the second part. In the event of the answer to the first part being ‘yes’, it is possible that the answer could be that “the report of the inquiry cannot be made public as it deals with a matter of sensitive nature”. The reply given by the Senate office clearly betrays the practice of denying disclosure of facts that can never be considered secret.

Question 2: Will the honourable minister for defence be pleased to state whether there is any law on the statute, and if so, to state the law, under which the ISI is authorized to conduct raids and detain and interrogate suspects?

Reply by Senate office: “ ….the subject matter of this question is of secret and sensitive nature. It asks for information on a matter prejudicial to the integrity and security of the country. The Chairman, Senate, has therefore, been pleased to hold the question to be inadmissible under rule 47(xviii)(d) and (xxi) of the Rules of Procedure and Conduct of Business in the Senate, 1988.”
If raids to arrest suspects, their detention and interrogation by the ISI could be denied, the matter would have ended there. Otherwise, how could disclosure of the law under which the ISI carries out the functions alluded to in the question be considered prejudicial to the integrity of the country? Incidentally, in accordance with the British legacy the first thing that the state is required to do after a law is made is to publish it for general information.

Question 3: Will the minister for interior be pleased to inform :
Names, nationalities and details of such persons who have been handed over by the tribe to the administration in South Waziristan.
Whether relationships and contacts of such persons with Taliban and / or Al-Qaeda have been established as a result of investigation from them?
Whether persons taken into custody would be produced before a court of law in due course of time?

Reply by Senate office: “ ….the subject matter of this question is of secret and sensitive nature. The Chairman, Senate, has therefore, been pleased to hold the question to be inadmissible under rule 47(xvii)(d) of the Rules of Procedure and Conduct of Business in the Senate, 1988.”

Question 4: Will the honourable minister for defence be pleased to provide a list of camping grounds specified as such by the government and state which of these camping grounds have been converted into commercial, industrial, housing and agricultural use and under which statutory authority?
Reply by Senate office: “….the question asks for information on matters of past history. The Chairman, Senate, has therefore, been pleased to hold the question to be inadmissible under rule 47(xix) of the Rules of Procedure and Conduct of Business in the Senate, 1988.”

Question 5: Will the honourable minister-in-charge of National Accountability Bureau (NAB) be pleased to state as to whether a judicial inquiry was held into the death in custody of a PTCL officer on March 19, 2001, at Lahore, and if not, why not?

Reply by Senate office: “….the notice of similar question D No. 95 (5th group) was received for the 11th session which was disallowed under rule 45(i) as the same was not of public importance (Annexure II). The Chairman, Senate, has, therefore, been pleased to hold the question to be inadmissible under rule 45(i) and 47(x) of the Rules of Procedure and Conduct of Business in the Senate, 1988.”

The deep-rooted tradition of denying access to information sometimes results in official spokespersons’ ignoring the need for equipping themselves with knowledge of matters under their control, knowledge that is expected to help them answer questions without bothering their record-keepers. The Foreign Office was asked vide a question in the National Assembly about the number of international human rights instruments signed / ratified by Pakistan. The answer was that more time was needed to gather the information asked for. Any good candidate for entry into civil service would have promptly rattled out a correct and complete answer. In any case the instruments recognized are too few to unduly strain one’s memory.
Dear Mr. Chacko,

Reference the piece on censorship, the following may be added, if you agree, before the paragraph (towards the end of the piece) beginning with the words “The successor to General Zia”

The extended haggle South Asian governments are having with advocates of the people’s right to know also betrays a tendency to retain censorship in one form or another. The first attempt in Pakistan to have a right to information law was made many years ago when a member of the Senate moved a private members bill. The attempt was quashed unceremoniously. The caretaker regime formed after the dismissal of Benazir government in November 1996 had in its Law Minister, Mr. Fakhruddin G. Ebrahim, a passionate champion of the right to access information. He drafted a freedom of information bill which expressly affirmed right to information as a basic right. His view was not accepted although his colleagues in the cabinet did adopt a Freedom of Information Ordinance after he had quit. The reference to the law being rooted in a right was dropped. The measure was never enforced. The regime that took over in October 1999 made two attempts at legislation on the subject and eventually issued Freedom of Information Ordinance in 2002. The law is yet to come into full operation. The issues in contention during the debate on the subject have been: a reluctance to concede right to information as a fundamental right; attempts to make the area of operation of the law as small as possible by providing for substantial exclusions and exemptions; reluctance to curtail Executive’s privilege to decline disclosure of public information or record; and resistance to conceding an appeal structure within the legislation. All these reservations in fact amount to thinly veiled efforts at secret government which is the prime objective of censorship.