Freedom of speech and Superior Judiciary:

"I regard freedom of expression as the primary right without which one cannot have a proper
functioning democracy.”

Lord Hailsham

John Wilkes, a radical and popular politician of London, a journalist and pioneer of freedom of
press in Britain during the eighteen century writing in the first issue of his weekly newspaper
“The North Britain” in 1762 said, “Freedom of expression is the bulwark of all other liberties in
Britain.” This quotation almost has a biblical sanctity for all the nations who value human rights
and liberties and their significance in the nation building. Freedom of expression is globally
recognized as the foundation of human rights, which are protected by a multitude of regional and
international treaties, charters, and frameworks.1 In today’s world, democratic governments face
some challenges related to freedom of expression. Globally, it is not recognized as an
unconditional right, as every democracy has developed some system of limitations in connection
with the freedom of expression. According to an article published by Stanford Encyclopedia of
Philosophy, limitations on the freedom of speech are imposed particularly when freedom of
speech conflicts with other values or rights and may be subject to legal sanction or social
condemnation, or both.2Like other democracies, Pakistan ensures the freedom of expression
under certain limitations in terms of religion and national security.

The Article 19 of the Constitution of Pakistan 1973, provides the concept of freedom of speech.
However, these rights cannot be used to denigrate or undermine 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 commission of or
incitement to an offence.3The rationale of imposition of conditions on freedom of speech and
expression as underlined by the Constitution itself is that the citizens while exercising such right
have to maintain decency and decorum and not in a manner, which will infringe upon the rights
1
The European Convention on Human Rights, Article 10; The American Convention on Human Rights, Article 9; The
African Charter on Human and Peoples’ Rights, Article 13; The Arab Charter on Human Rights, Article 32
2
Van, M D 2015, ‘Freedom of Speech’, The Stanford Encyclopedia of Philosophy (Spring Edition), Edward N. Zalta
(ed.), viewed 25 Oct 2015 http://plato.stanford.edu/archives/spr2015/entries/freedom-speech/
3
Artile 19 of the constitution of Pakistan.
of other citizens or transgress the mandate of law in relation to the working of State Institutions. 4
There are eight restrictions stated on the freedom of speech and expression within Article 19 of
the Constitution of Pakistan, 1973. But here I will focus on two limitations which always lead
our system to chaos and disturbance that required the clear interpretation from the superior
judiciary.

Firstly, the term 'glory of Islam' has been included in Article 19 in the 1973 Constitution. It was
not a part of the restrictions enumerated on the freedom of expression in the 1956 5 or the 19626
Constitutions. One can assume that this restriction means that no one, in exercising their freedom
of speech and expression, can make derogatory remarks or raise propaganda against Islamic
principles.7 In the case of Qazalbash Waqf v. Chief Land Commissioner the supreme court held
that "This expression 'glory of Islam' should not cause raising of so called modernists' eye-brows
nor should it treated as a mere cliché. It is considered as one of the laudable objects of a Muslim
State and thus has been safeguarded by our constitution, which is no less modern, than any
other.8 Similarly in Zaheeruddin v State the Supreme Court it was also argued that the phrase
glory of Islam as used in Article 19 of the 1973 Constitution cannot be availed with regard to the
rights conferred in Article 20. Article 19 which guarantees freedom of speech, expression and
press makes it subject to reasonable restrictions imposed by law in the interest of glory of Islam
etc., and decency or morality. The restrictions given therein cannot, undoubtedly, be imported
into any other fundamental right.9

But in the dissenting note in the case of Zaheeruddin v State Justice Shafiur Rahman stated
inter alia that the wearing of badges by members of the Ahmadiyya community carrying
religious messages pertaining to Islam would not constitute a criminal offence since "for
ascertaining its peculiar meaning and effect one has to reach the inner recesses of the mind of the
man wearing or using it and to his belief for making it an offence." This would be beyond the
scope of the law and "in any case it will infringe directly the religious freedom guaranteed and
4
Criminal Original Petition No.09 of 2018 {Suo Moto Contempt Proceedings initiated against Mr. Talal Chaudhry,
State Minster on account of derogatory and contemptuous speeches/statements at public gathering in respect of
this Hon’ble Court telecasted by different T.V. Channels. P .6
5
Article 8 of 1956 constitution.
6
Article 6 of1962 constitution
7
REPORTED CASE LAW TRENDS ON THE FREEDOM OF SPEECH AND EXPRESSION IN THE ISLAMIC REPUBLIC OF
PAKISTAN, page,17.
8
PLD 1990 SC 99, Pg.108
9
1993 SCMR 1718
enjoyed by the citizens under the Constitution, where mere belief unattended by objectionable
conduct cannot be objected to".10

Similarly, Justice Tassadduq Hussain Jillani authored a landmark judgment, concerning the
rights of religious minorities. Writing about this judgment, Reema Omer 11states: “The judgment
of June 19 clarifies and expands the scope of Article 20 of the Constitution, which guarantees the
right to freedom of religion. The court explains that religion cannot be defined in rigid terms, and
holds that freedom of religion must also include freedom of conscience, thought, expression,
belief and faith.

These are very powerful pronouncements, which could be used to challenge previous rulings on
the rights of minorities such as the Supreme Court’s judgment in the Zaheerudin v. State case
and Qazalbash Waqf v. Chief Land Commissioner case which is difficult to reconcile with the
Court’s current rulings. Because, every religion is as much sacred as other and only protecting
the glory of Islam under Article 19 is unreasonable. Therefore, to expand the freedom of speech
and to make it reasonable we have two option firstly, to include and protect the glory of every
religious minority under Article 19 because if the religion of minority demands constitutional
protection the same is required and necessary for the protection of religion of minority so that a
majority of religious denomination cannot impose its religious will on minority groups.
Secondly, if we cannot add the other religion in the ambit of Article 19 then we shall remove the
word glory of Islam from the Article 19 of the 1973, constitution of Pakistan.

Secondly, interpretation of the term, 'integrity, security and defense of Pakistan' is limited in light
of Article 19 of the Constitution of Pakistan, 1973.12

Security of the state:

Security of the State‟ means „the absence of serious and aggravated forms of public disorder‟, as
distinguished from ordinary breach of „public safety‟ or „public order‟ which may not involve any
danger to the State itself. Thus, security of the State is endangered by crimes of violence intended to
overthrow the Government.13

10
Ibid , para 1749.
11
Reema Omer (2014). A welcome judgement (Dawn). https://www.dawn.com/news/1118991
12
Supra note 5 at 19.
13
Santosh Singh v. Delhi Administration, AIR 1973 SC 1093.
 In the case of Hussain Bakhsh Kausar v. The State the supreme court stated inter alia that the
police and the people in authority must change their outlook now and stop the unnecessary
harassment of the people by censoring the letters of the citizens of Pakistan, tapping their
telephones, and keeping a watch on their activities except in the case of the known traitors and
treason-mongers because that amounts to the negation of the fundamental right guaranteed to the
people by the Constitution. Further stated that it is high time that the people in power realized
that they have no absolute power over the lives and conduct of the persons who reside within
their jurisdiction. A man is entitled to his opinion and is within his right to express it.” 14 In the
Suo Moto action regarding Islamabad-Rawalpindi Sit-in the Justice Faiz Isa directed all
intelligence agencies that they must not exceed their respective mandates. They cannot curtail the
freedom of speech and expression and do not have the authority to interfere with broadcasts and
publications, in the management of broadcasters/publishers and in the distribution of
newspapers.15 But unfortunately we also hear the statement of ex-Chief Justice of Pakistan Mian
Saqib Nisar hinted at invoking Article 6 of the Constitution against  those opposing the
construction of dams  in the country. He further said “I am examining the scope of Article 6 to
see whether it could be invoked against opponents of this national cause”.16

To conclude in my opinion the fundamental rights of every citizen shall be protected without any
discrimination. The idea of Pakistan refers to the fact that Pakistan will be a welfare state rather
than a security state. So that the every citizens lead a happy life and all his fundamental rights are
fully protected particularly his freedom of speech which is the essence of democracy.

14
Hussain Bakhsh Kausar v. The State (PLD 1958 Pesh. 15)
15
Suo Moto Case No. 7/2017 (Suo Moto action regarding Islamabad-Rawalpindi Sit-in / Dharna) page 40-41.para
12.
16
September 16 ,2018 Dawn newspaper). https://www.dawn.com/news/1118991