LAHORE:
The Punjab Defamation Law 2024 has been challenged in the Lahore High Court (LHC), highlighting several sections as ultra vires to different articles of the Constitution, and questioning the need for a whole new law given the existence of already available laws.
Petitioners, Jaffar Ahmad Yar and Riaz Ahmad Raja, who are journalists, filed a plea through advocates Shahbaz Akmal Jandran and Nadeem Sarwar, requesting the court to suspend the operation of the ordinance until a final decision is made on the petition.
They contended that Punjab Defamation Bill 2024 was signed by acting governor Malik Muhammad Ahmad Khan in unusual haste, despite significant concerns from the journalist fraternity, human rights organizations, and opposition legislators.
They implored in the petition that a bill awaiting the governor’s assent and ultimately signed by the acting governor could be termed a draconian law and an authoritarian move.
Last month, the Punjab Assembly bulldozed the controversial defamation bill into law, triggering a storm of protest from the opposition and journalists outside the assembly and at press club.
The bill was denounced as a “draconian law” with the opposition suspecting it was aimed squarely at them.
The bill extended its reach across print, electronic, and social media platforms. It paved the way for defamation cases to be brought against the dissemination of false and fabricated news.
Furthermore, the bill encompassed fake news circulated through various channels, including YouTube, TikTok, Twitter, Facebook, and Instagram.
Any news aimed at tarnishing an individual’s personal life or public standing would be subject to legal repercussions under this legislation.
According to the bill, individuals making allegations against those in constitutional positions may face a compensation of Rs3 million, with the high court bench empowered to adjudicate such cases.
The petition maintained that the definitions of terms such as ‘journalist’ and ‘newspaper’ provided under the law are vague, irrational, and ambiguous. Section 3 of the Act, which allows for the initiation of defamation claims without any proof, violates Article 10-A and the principles of the law of evidence. It is unreasonable, unconstitutional, and unlawful to permit a person to bring a defamation claim without any proof.
The petition challenging the defamation law maintained that Section 4, which grants absolute privilege to any publication of statements made in federal and provincial legislatures, reports, papers, and matters ordered to be published by either house of parliament or by provincial assemblies, or written or published by or under the authority of the government, provides protection of absolute privilege. The protection and privilege granted under Section 4 violate the equality clause (Article 25).
It further stated that the Punjab Defamation Tribunal, created under Section 8 of the Act to handle cases instituted under the new law, has been widely criticized. The power to appoint the tribunal, which would have the same status as a single-member bench of the LHC when cases are brought by public office holders, lies with the provincial government. This procedure violates the principles of judicial independence, as the appointment, removal, and resignation of tribunal members are all controlled by the government.
In addition, the differing procedures for private individuals and public office holders raise concerns about fairness, impartiality, transparency, and the equality clause of the Constitution, which guarantees equality before the law. Under the law, the tribunal functions normally when handling complaints from private individuals. However, when it addresses complaints brought by public office holders, it is ‘interchanged’ with a single-member bench of the LHC.
The petition stated that if the tribunal is considered a bench of the LHC, its members should also be regarded and treated as judges of the LHC. The current process is excessively arbitrary. Furthermore, since the Constitution already prescribes the procedure for appointing high court judges, there is no justification for a parallel system for selecting tribunal members.
Granting original jurisdiction to the high court for defamation claims violates the Constitution.
It was said that Section 11 of the Act, which exempts holders of constitutional offices from appearing, violates Article 10-A and Article 25 of the Constitution, as well as the Qanun Shahadat order.
The petition noted that Section 12, which prohibits parties from making any statements during pending proceedings, is ultra vires to Article 19 and 19-A of the Constitution. Furthermore, the prohibition of fair comments, even those made in good faith and in the public interest, also contravenes constitutional provisions and the rights guaranteed therein.
Another distinctive feature of the new law is the provision for a ‘preliminary decree’ outlined in Section 13. This decree can be issued along with a fine without affording the accused party a hearing. “This seems a criminal defamation law as it imposes a serious punishment to begin with. In other words, the power to issue a preliminary decree amounts to the power to punish before a trial is held.”
The petition stated that Section 15, which restricts the high court from staying the execution of a preliminary decree, effectively undermines the judicial power of a court established within the constitutional framework.
It maintained that Section 17 violates the established principle of the Qanun Shahadat order, which considers reputation as a relevant fact in the case. Additionally, Section 21 of the Act, which imposes penalties such as blocking social media accounts or any other media platform covered under this Act, contravenes Article 18 of the Constitution. Social media serves as a source of income for many individuals, and absolute blockage is unconstitutional. Furthermore, it disregards the principles of reasonableness and proportionality.
The exclusion of the Act under Section 23 from the umbrella of the Qanoon-i-Shahadat, or law of evidence, raises concerns about the evidentiary standards that will be applied to defamation cases heard under the new law. The Qanoon-i-Shahadat prescribes the procedures and methods for recording evidence of parties to establish facts and present documents supporting their claims. Additionally, it enables both sides to cross-examine each other’s witnesses.
The new act suggests that a private person can invoke this law without bringing any witnesses. Section 23, which states that ‘Qanoon-i-Shahadat not to apply’, should be omitted as it breaches Article 8(2), 10-A, and 25 of the Constitution.
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