The controversial legislation about defamation which imposes curbs on press freedom became a provincial law (Punjab Defamation Act, 2024) on 20th May 2024. Is this a strategic move to punish those as per law who misuse social media platforms such as XTwitter, TikTok, etc, or to punish those who have been fairly and squarely using these platforms as their bread and butter, or an aim to muzzle free speech and inhibit dissenting voices? Critics believe that these questions are based on a much more nefarious agenda. However, whoever’s purpose or interest behind this law is a different ball game and is not something under consideration here. 

In Pakistan very sadly the state often uses the pretext of curbing fake news or online abuse to weaponize defamation laws against critics to intimidate, harass, and silence them. There is no doubt that the new law in place also adopts this same backsliding approach and that is why it can be said as a draconian law. However, if this new law stays in the field, it will have serious constitutional fundamental rights adverse effects. Article 4 (2) (a) and 14 (2) of the Constitution of the Islamic Republic of Pakistan 1973 clearly guards the reputation and dignity of individuals. While Article 19 of the Constitution guarantees freedom of speech subject to any reasonable restrictions. There has been a plethora of case laws on the interpretation of the Constitution to be done as per literal rule. Even Justice Marshall famously quoted in McCulloch v. Maryland [1819] that “We must never forget that it is a constitution we are expounding”. However, the civil Defamation Laws in Pakistan often abuse these concepts, being drafted in overly expansive terms that make a wide range of statements actionable as defamation.  

The way the new Punjab Defamation Act, 2024 has been drafted makes it clear that it tends to target dissent and free speech. It is also unambiguous from the statement of object and reasons of it which states ‘legal protection from false, misleading and defamatory claims made via print, electronic, and social media against ‘public officials. Furthermore, if we look deeply into this law there are various other inadequacies that need to be addressed. 

1.     As per the case laws it is evident that three essential ingredients are required to prove defamation such as 1) imputation must be defamatory 2) it must identify or refer to the claimant 3) it must be published or communicated to at least one person other than the claimant. However, if we look into Section 11 (1) of the new Defamation Law the tribunal is to adopt the summary procedure provided in Order XXXVII of the CPC hence, not desirable to prove malicious intent. 

2.     Under Section 23 of the new Defamation Law, they have excluded the Qanoon-e-Shahadat (law of evidence). How can a trial be executed in a fair manner if the evidence law is not in place subject to Defamation Law? This is just to conclude cases in a favorable manner for the powerful people at the expense of fundamental rights. 

3.     Section 13 (1) of the new Defamation Law a leave to defend has to be obtained from the Court subject to the Court’s opinion to grant or not. If the Court refuses to grant leave, then a preliminary decree will be passed under Section 15 (1) up to Rs. 3 million. 

4.     Section 2 (m) and (o) of the new Defamation Law have defined ‘Journalist’ and ‘Newspaper’ very broadly which looks like there are ulterior motives to it. 

These are momentous concerns that require redressal otherwise it is completely against the fundamental rights enshrined in the Constitution. However, this Law has been challenged before the Honourable High Court by two journalists; Mr. Riaz Ahmad Raja and Mr. Jaffar Ahmad Yar with a plea to strike it down due to its severity and negative outcome. What they have prayed before the Honourable Court is to rather amend the existing law in place which is the Defamation Ordinance, 2002. However, the matter is still sub-judice before this the Honourable Court and the people of the country are with fingers crossed as to what will be the outcome. 

Possible Solutions

 1.     If the aim behind the enforcement of the new Defamation Law is genuine and without wicked intent then there needs to be further amendments to be done within this New Law such as the law of evidence needs to be applicable mutatis mutandis to Defamation law. Otherwise, it is a serious compromise over the fundamental rights of citizens of the country enshrined under the Constitution. On one hand, it is consistently voiced that it is the Constitution that needs to be respected, and violation of it would result in serious consequences. However, on the other hand, it is the new Defamation law that is compromising the Constitution hence, this is a very serious concern. 

2.     The independence of professional journalism needs to be respected. However, this doesn’t mean that there should be a misuse of media powers if that is so then strict actions should be taken. 

3.     The damages of 3 million on preliminary decree I believe is an enormous amount. I do not say to massively reduce the damages amount but to cut it at a reasonable level for example may be 1.5 million. 

4.     If the remedy of appeal against the final decree is before the Honourable High Court within 30 days then it should not be necessary to deposit the amount of decree in order to further process the appeal. If someone is not able to deposit the decree amount of general/punitive damages within 30 days for whatever reason then his right of appeal gets time barred hence, it will be a miscarriage of justice. 

5.     The political leaders (of any political party) need to stop their consistent movement over the concept of fake news. This actually spreads hate and introduces to anti-speech legislation. 

I would conclude by simply stating that the new Defamation Law is an alarm for the country which can cause serious violations of fundamental rights and if these concerns are not addressed appropriately then it is fate that is taking this country to a very dangerous position. However, people are hopeful that the new Defamation Law will be struck down, or if not then changes will be made to this Law. 

Pakistan Paindabad!