FREEDOM OF EXPRESSION AND SPEECH – LOCAL AND INTERNATIONAL PERSPECTIVE

Shabbir Akbar, Advocate[i]

Freedom of expression is regarded as a fundamental component of development and finds a significant place in the constitutions of the countries of the world. Nevertheless, the constitutional guarantee as to freedom of expression is subject to reasonable legal and constitutional restraints in view of the national interests of the country granting it in particular and the global interests in general.

International Guarantees as to Freedom of Expression

  1. Universal Declaration of Human Rights (UNDHR)

Article 19 of the Universal Declaration on Human Rights (UDHR),[UN General Assembly Resolution 217A(III), adopted 10 December 1948]  a United Nations General Assembly resolution, guarantees the right to freedom of expression in the following terms:

“Everyone has the right to freedom of opinion and expression; this right includes the right to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” https://www.un.org/en/about-us/universal-declaration-of-human-rights

The UDHR is not directly binding on States but parts of it, including Article 19, are widely regarded as having acquired legal force as customary international law since its adoption in 1948 [See, for example, Filartiga v. Pena-Irala, 630 F. 2d 876 (1980) (US Circuit Court of Appeals, 2nd Circuit]

ii)        The International Covenant on Civil and Political Rights (ICCPR)     

The International Covenant on Civil and Political Rights (ICCPR)[1], a formally binding legal treaty ratified by over 145 States, guarantees the right to freedom of opinion and expression at Article 19, in terms very similar to the UDHR. Although Pakistan has neither signed nor ratified the ICCPR, it is an authoritative elaboration of the rights set out in the UDHR and hence relevant here.

Freedom of information is an important component of the international guarantee of freedom of expression, which includes the right to seek and receive, as well as to impart, information and ideas. There can be little doubt as to the importance of freedom of information and numerous authoritative statements have been made by the official bodies to this effect.

During its first session in 1946, the United Nations General Assembly adopted Resolution 59(1) which stated:

“Freedom of information is a fundamental human right and… the touchstone of all the freedoms to which the UN is consecrated.”

Its importance has also been stressed in a number of reports by the UN Special Rapporteur on Freedom of Opinion and Expression, as the following excerpt from his 1999 Report illustrates:

“[T]he Special Rapporteur expresses again his view, and emphasizes, that everyone has the right to seek, receive and impart information and that this imposes a positive obligation on States to ensure access to information, particularly with regard to information held by the Government in all types of storage and retrieval systems – including film, microfiche, electronic capacities, video and photographs – subject only to such restrictions as referred to in the article 19, paragraph 3, of the International Covenant on Civil and Political Rights.”

iii)       European Convention on Human Rights, Article 10

1. “Everyone has the right to freedom of expression. This right shall include the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television, or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions, or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.

  • Constitutional Guarantee as to Freedom of Speech/Expression
  1. The Constitution of Pakistan upholds the fundamentals for a vibrant democracy and guarantees freedom of expression and the basic premise for media freedom.

Constitution of Pakistan also provides Freedom of Speech/Expression under Article 19 as provided in the UDHR under its Article 19 which reads as follows: 

“Article: 19 Freedom of speech, etc.

Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, 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, [2][commission of] or incitement to an offence.”

[3][Article: 19-A. Right to Information.-

Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law.]”

  • Leading Judgments of Pakistan Courts

The issue of freedom of speech/expression came under consideration in the superior courts of Pakistan and dealt with delicate elaboration thereon in the judgments delivered. In order to understand the extent, scope, and object of this very right and the obligation as to freedom of expression cast upon the media/press thereby, relevant excerpts from the leading judgments are given below:

Supreme Court of Pakistan on “Freedom of Expression”

“Right to freedom of speech and expression guaranteed under Art. 19 of the Constitution was subject to reasonable restrictions imposed by law, inter alia, in relation to contempt of court—Citizen while exercising his Fundamental Right of speech and expression was obliged to ensure that his comment with regard to the conduct of a Judge or the court did not violate the law.” [at pp. 996, 999] PLD 2012 SC 923

  • “…Weight attached to electronic media stems out of the fundamental rights of freedom of speech, expression and of press as guaranteed by Art.19 of the Constitution…Equally important, if not more, the right of every citizen to have access to information in all matters of public importance as guaranteed by provisions of Art.19-A of the Constitution.” 2010 SCMR 1849 (at p:1857]
  • “In a democratic setup, freedom of speech/expression and freedom of press are the essential requirements of democracy and without them, the concept of democracy cannot survive. From perusal of Article 19, it is, however, absolutely clear that above right is not absolute but reasonable restrictions on reasonable grounds can always be imposed— reasonable classification is always permissible and law permits so.” PLJ 2004 SC 108 (at p:119)
  • “… Press is not free to publish anything it desired, but its freedom is subject to such responsible restrictions as may be legitimately imposed under law in the public interest and glory of Islam—Press must take due care and caution before publishing any material in the Press, verify its correctness from the concerned quarters and keep themselves within the bounds and ambit of the provisions of Art. 19 of the Constitution.” [pp.524, 525] PLD 2002 SC 514
  • Liberty of speech or expression and freedom claimed by citizens shall always be subject to restrictions, Constitutional sanctions and law…”

“…while invoking concepts of freedom one cannot, by any means, ignore Islamic Polity, social order, and unwritten moral restrictions which are embodied in the national character. While borrowing legal theories and precedent case-law; a citizen has to be mindful about paramount religious, cultural, or social textures and basic features by avoiding perversity of thought suggestive of violence, aggressiveness expressions tending to promote anarchy, writing affecting solidarity of the country, provoking towards contravention of existing laws or prejudicing glory of Islam in the garb of freedom or liberty whether for the speech of press.”

“Bare perusal of Article 19 of the Constitution postulates reasonable restraints whereby citizen while exercising his right of freedom of speech or expression and freedom of the press is prohibited to conduct himself in any manner which may violate security or defense of Pakistan or a part thereof, or could affect friendly relations with the Foreign States.” PLD 1998 SC 823

  • “Article 19 of the Constitution guarantees right of freedom and speech and expression. It ordains that there shall be a freedom of press subject to reasonable restrictions imposed by law elucidated therein. The freedom of expression includes the right to receive information through organs of public opinion and the freedom of press on its turn rests on the assumption that there is a wide dissemination of information. Such dissemination inevitably contemplates absence of restraints. Thus any measure which directly or indirectly puts restraint on or curtails the circulation of newspaper, due to any factor, including cost of production and resultant increase in the price thereof should, in so far as possible, be avoided.” [p. 1544] 1993 SCMR 1533

High Courts of Pakistan on Freedom of Speech and Expression

  1. Baluchistan High Court in its judgment reported as PLD 2013 Quetta 75 held:

“… Extremist hate literature, wall chalking, and threatening and spiteful press releases were not permissible because they were contrary to the injunctions (of Islam), undermined the integrity, security and defense of Pakistan, public order, decency, and morality… Same were also crimes under the law of Pakistan, and they incited others to commit the crime.” [p.125]

“…Freedom of speech and expression guaranteed under Art.19 of the Constitution did not entitle print or electronic media to launch a campaign against any person which was defamatory or was directed to harm and damage his political life on baseless grounds—There could not be any justification for doing so as the right of speech was not absolute, nor was exercisable in all circumstances—Constitutional protection was not given under Art. 19 of the Constitution to a defamatory utterance nor right to exercise freedom of speech and expression was exempted from liability of libel and slander [p. 548]  2010 CLC 546

  • “… Freedoms envisaged in Arts 15, 16, 17 and 19 of the Constitution are not absolute, but subject to reasonable restrictions—Fundamental duty of every propagator, printer and publisher would be to establish that whatever they published was based upon truth.” [p. 467, 468] PLD 2008 Karachi 458

Karachi High Court in its judgment in Benazir Bhutto’s case reported as 2000 CLC 904 held:

“Freedom of press is treated as one of the most essential part of the democratic system— such freedom works as a check and balance on the other organ of the Government— if any Authority exceeds its powers, it is the duty of the Press to bring such excess to the knowledge of people at large—Press has been regarded as the mother of all liberties in a democratic society.”

  • It was held in judgment reported as 2006 MLD 1462 (Karachi) that:

“In spite of the freedom of the press guaranteed in Art.19 of the Constitution, the press is not free to publish material without proper verification— While publishing any news item, it is not necessary for the press to violate principles of decency and established norms of morality. [p.1466]

  • “…Freedom of expression would not give license to damage honor and prestige of individual or of country and nation.” 1990 CLC 1500
  • “All instrumentalities of State are, therefore, supposed to act in a manner which may be conducive to promotion of the object of the Constitution.”  PLD 1989 Lahore 12
  • “…Article 19 had not guaranteed unrestricted freedom of speech or expression but had contemplated reasonable restrictions which could not be construed in manner which instead of suppressing mischief encouraged or accelerated mischief.” [pp. 418, 424] PLD 1988 Karachi 414

“Art. 19 of the Constitution of 1973 lays down that “every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law. . . ” Thus the freedom of the Press has been guaranteed by the Constitution subject to any reasonable restrictions imposed by law.

According to Blackstone “the liberty of the press is indeed essential to the nature of a free state, but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every free man has an undoubted right to lay, what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity”. (4 Blackstone’s Commentary, 151-152) PLD 1975 Lahore 1198

FREEDOM OF EXPRESSION & SPEECH AND COUNTRIES OF THE WORLD

United States of America

Freedom of speech is protected by the First Amendment to the U.S. Constitution, written in 1791, as well as many state constitutions and federal laws. The First Amendment reads:  Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

United Kingdom

Freedom of speech came out of the European Enlightenment. England’s Bill of Rights in 1689 granted “freedom of speech in Parliament” and the Declaration of the Rights of Man and of the Citizen, adopted during the French Revolution in 1789, specifically affirmed freedom of speech as an inalienable right. The colonies originally had different views on the protection of free speech. During English colonialism in America, there were fewer prosecutions for seditious libel than England, but other controls over dissident speech existed.

  • South Africa

Freedom of speech and expression are both protected and limited by a section in the South African Bill of Rights, chapter 2 of the Constitution. Section 16 makes the following provisions:

§ 16 Freedom of expression

(1) Everyone has the right to freedom of expression, which includes-

(a) freedom of the press and other media;

(b) freedom to receive or impart information or ideas;

(c) freedom of artistic creativity; and

(d) academic freedom and freedom of scientific research.

(2) The right in subsection (1) does not extend to-

(a) propaganda for war;

(b) incitement of imminent violence; or

(c) any advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

India

Article 19 of the Indian constitution states that:

“All citizens shall have the right —

  1. to freedom of speech and expression;
  2. to assemble peaceably and without arms;
  3. to form associations or unions;
  4. to move freely throughout the territory of India;
  5. to reside and settle in any part of the territory of India; and
  6. to practise any profession, or to carry on any occupation, trade or business.”

These rights are limited so as not to affect:

  • The integrity of India
  • The security of the State
  • Friendly relations with foreign States
  • Public order
  • Decency or morality
  • Contempt of court
  • Defamation or incitement to an offence

Peoples Republic of China

Article 35 of the Constitution of the People’s Republic of China claims that:

“Citizens of the People’s Republic of China enjoy the freedom of speech, of the press, of assembly, of association, of the procession and of demonstration.”

Undoubtedly, freedom of expression and speech is the cornerstone of fundamental rights bestowed by the constitutional provisions, however, to put reasonable restraints in the exercise of this right keeping in view national interests in particular and international interests, in general, doesn’t go against the spirit of freedom of expression and infringes upon this valuable right. Neither the State nor the individuals ought to be allowed to transgress this freedom by way of its unbridled exercise as well as curtailment tending to shackle it. This liberty, nevertheless, may be enjoyed by maintaining an equilibrium between exercising and controlling this right. 


[1] [UN General Assembly Resolution 2200A(XXI) of 16 December 1966, in force 23 March 1976]

[2] Substituted for the word “defamation” by the Constitution (Fourth Amendment) Act, 1975 (Act No. LXXXI of 1975), s.4 (w.e.f. 21st November, 1975).

[3] New Article 19A inserted by the Constitution (Eighteenth Amendment) Act, 2010 (Act No. X of 2010), s.7.


[i] Author is Managing Partner at Law Serves, a civil and corporate law firm in Pakistan (www.lawserves.com).