A win – sort of

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Posted on: 
15 May 2014

The Supreme Court’s interim order dated 17.9.2012 ordering the blocking of the offensive video “Innocence of Muslims” on the internet is one of the strangest orders, even for an activist Supreme Court like  Chaudhry Iftikhar’s. First of all it was issued in a case entirely disconnected from the matter.  The “Public Interest” petition under Article 184(3) of the Constitution had originally been a letter written by an Islamist politician Qazi Hussain Ahmad (now deceased) complaining of “obscenity” and “sexuality” in the national media. This was followed by a letter from ex-Justice Wajihuddin Ahmad. Lo and behold, the great Chief Justice that Chaudhry Iftikhar was, he converted the letters into a public interest petition. It gets stranger still. One fine day, another lawyer – the very rotund and robust Mr. Akram Shaikh (now prosecuting General Musharraf for treason) – filed a civil miscellaneous application in this case asking for the Court to take immediate notice of Innocence of Muslims on “U-Tube” (sic). The Supreme Court immediately ordered the complete and total removal of the film from “U-Tube” and other “websites” and to ensure that it never is accessed in Pakistan ever again – never ever, for all times to come. One is not dying to see the offensive video which is at best a third rate attempt to ridicule one of world’s great religions. However this order showed that the Supreme Court was completely oblivious of how the internet works.

The then Pakistan People’s Party led coalition government – already under pressure by the judiciary which had sent its Prime Ministers packing only months prior to this development – immediately implemented the order by banning YouTube as a whole.

Strangely though this order remains – despite the claims of the government and the pro-censorship lobbies - the most flouted order of the Supreme Court. Pakistanis continue to access YouTube through VPNs and Proxies and allegedly continue to visit the objectionable video. Furthermore the objectionable video is now widely available all over the internet and on almost all video-sharing websites. Finally, two hearings ago, after we had repeatedly asked for the government,  now under the right wing Nawaz League party, to provide a legal basis for the ban,  the government produced this shadowy order.

In this background the order of the High Court dated 13.5.2014 promises to be a landmark order, when it is finally issued. From how it was announced in the Court, the High Court will emphasize the importance of YouTube and the free flow of information on the internet to the cause of a progressive and democratic Pakistan. This order will sum up the arguments of the last one and a half years including the recommendations of the experts – foremost of which is that YouTube must be opened for public with interstitial warnings. It will also mention the unanimous National Assembly resolution in favour of the reopening of YouTube. Finally, the High Court will direct the petitioner to seek a clarification as to what it meant by the order dated 17.9.2012. I had argued in the High Court that the Supreme Court’s order has to be read harmoniously with the Constitution which would then allow reopening with interstitial warnings. Before the Supreme Court we will ask for a clarification as to whether the pro-people constitutional interpretation that I have asked the High Court to give the Supreme Court’s order was indeed their intent.

Once we have completed that process, we will come back to the High Court for the reopening of YouTube as well as a final decision on whether the web censorship carried out by Pakistan Telecommunications Authority even otherwise is constitutional.

I thank Media Legal Defence Initiative for their excellent help during this case and in particular I thank Nani Jansen and Peter Noorlander for their support.

Yasser Latif Hamdani is the counsel for Bytes for All in its case Bytes for all v. Federation of Pakistan 958/2013.  He is also an author having written a book on the life and politics of Jinnah, the founding father of Pakistan.  Http://yasserhamdani.com

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