The Need to Revisit Punjab Defamation Act 2024

Legislative Review: Punjab Defamation Act 2024

Factual Background

In May this year, the Punjab Assembly passed the Punjab Defamation Bill, 2024, which was subsequently signed into law by the acting Governor of Punjab. Thus, the Punjab Defamation Act, 2024 came into effect. The Act was heavily criticized on social media, as well as by journalists, etc. In June this year, it was challenged in the Lahore High Court for being unconstitutional.

In this piece, the 2024 Act will be examined in light of settled principles of law. It will be argued that it is ultra vires to the Constitution of the Islamic Republic of Pakistan, 1973 and should, therefore, be struck down.

Fundamental Rights

The Constitution has made it clear that no law in Pakistan can violate Fundamental Rights guaranteed to the people of Pakistan by the Constitution.[1] It states the following:

“8. (1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void.”

Thus, the Act of 2024, like all other laws, must be seen in light of Fundamental Rights guaranteed under the Constitution, which is what this paper seeks to do.

Leave to Defend Required

One of the main issues is found in Section 13 of the 2024 Act. The provisions of this section which are problematic are reproduced below:

“13. Leave to defend. – (1) In any case in which the summons have been served on the Defendant as provided for in sub-section (7) of section 11, the Defendant shall not be entitled to defend the claim unless he obtains leave to defend from the Tribunal as hereinafter provided; and, in default of his doing so, the allegations of fact in the claim shall be deemed to be admitted and the Tribunal shall forthwith pass a preliminary decree of General Damages in favour of the Claimant on the basis thereof or such other material as the Tribunal may require in the interest of justice…

(11) Where the application for leave to defend is rejected or where a Defendant fails to fulfill the conditions attached to the grant of leave to defend, the Tribunal shall forthwith pass a preliminary decree of General Damages against such Defendant.

(12) After the passing of the preliminary decree, the Tribunal shall fix the next date of hearing, within fourteen (14) days of the date of issuance of the preliminary decree, as a date for the settlement of further claim of damages and costs between the Parties.

(13) In case the settlement as provided in sub-section (12) fails and Claimant seeks to pursue the case over and above the preliminary decree passed in the form of General Damages, the proposed issues along with list of witnesses, documents and other material sought to be produced through process of the Tribunal shall be filed without fail by the Parties on next date of hearing fixed by the Tribunal, which date shall not be beyond fourteen (14) days, following the date fixed for settlement in terms of sub section (12).

(14) On the next date of hearing, following the date fixed for the proceedings in terms of sub-section (12), the Tribunal shall schedule the trial proceedings and fix a maximum of three dates of hearing, within a total period of thirty (30) days, for each of the Parties for production of evidence.”

The Right to Audi Alteram Partem Violated

The Constitution guarantees the rights to fair trial and due process of law.[2] The relevant Article is reproduced below:

“10A. For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.”

Defamation, as defined by the Act of 2024 itself, is a civil wrong.[3] As per Article 10A of the Constitution, a person is entitled to a fair trial and due process of law in matters that determine his or her civil rights.

One of the aspects of a fair trial is the principle of audi alteram partem (i.e. no person can be condemned unheard). The honourable Supreme Court of Pakistan has held in the case of Justice Qazi Faez Isa that it is an established principle of law that the right of a person to be heard, before any adverse action is taken against him or her, is a fundamental right of every citizen. Even if a law does not categorically give this right, it would still be applicable owing to the fact that it is a constitutional right and any proceedings undertaken in violation of this right will be void in the eyes of law.[4] The relevant portion of the judgment is reproduced below:

“29. This Court has time and again reiterated that even in absence of any express provision in the statute, the principle of audi alteram partem is to be read into the relevant provision and applies in proceedings where adverse action is being considered to be taken against a person or if the contemplated action is going to affect any of his vested rights. The violation of this principle vitiates the proceedings and makes the action taken therein to be illegal, as a violation of this principle is considered as a violation of law.”

The provisions of Section 13 of the 2024 Act violate this principle. First, it is one thing to strike off a defendant’s right of defense if he or she does not follow the orders of the court or does not follow reasonable time limits provided by the law; it is a completely different issue if the defendant is left to the undefined discretion of a tribunal to decide whether he or she will even be allowed to be heard and lead evidence. Thus, Section 13 of the 2024 Act is repugnant to the provisions of Article 10A of the Constitution which provides the right to a fair trial in the form of, inter alia, the right to be heard.

The honourable Supreme Court of Pakistan, in the case of Justice Qazi Faez Isa quoted above, has also reiterated that it is a settled principle of law that if the foundation of a matter is illegal then the entire superstructure built on the said foundation will also be illegal.[5] The relevant portion of this judgment is reproduced below:

“…Actually, the moment the foundation is removed, the entire structure collapses. The principle, having been enunciated by this Court in many cases, is now well settled that when the basic order is without lawful authority, then the entire superstructure built on it falls to the ground automatically.”

All actions to be undertaken by the tribunal, as per the current version of the 2024 Act, will be undertaken after the granting or refusal of leave to defend. However, if this very authority of granting leave to defend is unconstitutional, then all proceedings that are to be undertaken based on this will also be unconstitutional.

On this ground alone, the Act of 2024 can be declared unconstitutional. However, other issues will also be discussed in this piece.

Section 13 Not Only Absurd But Also Self-Contradictory

According to subsections (12), (13) and (14) of Section 13 of the 2024 Act, after ‘general damages’ have been awarded to a claimant (after the ‘defend’-ant has, ironically, been denied his or her right to ‘defend’ himself or herself without any fault of his or her own), the tribunal will fix a date to try and settle the matter and if the matter is not settled then it will proceed to trial to determine if the claimant is entitled to any more damages.

Basically, what is being said is that a defendant has already been ordered to pay damages (again, without being given the right to defend himself or herself) and then has to negotiate with the claimant to save himself or herself from further damages. Moreover, the wording of subsection (13) (“In case the settlement as provided in sub-section (12) fails and Claimant seeks to pursue the case over and above the preliminary decree passed in the form of General Damages”) shows that the defendant is at the mercy of the claimant, because all the claimant has to do is, without giving any reason, refuse to “settle” the matter and opt for further damages. This, quite clearly, is absurd.

Additionally, Section 13 is self-contradictory. This is because it first prevents a defendant from defending himself or herself by allowing a tribunal to refuse leave to defend and then, as per subsections (13) and (14), calls on the “parties” to produce evidence. How can the defendant produce evidence when he or she has been denied leave to defend? The argument that someone had been denied leave to defend at an earlier stage and are being allowed to defend at another stage, does not help the supporters of the 2024 Act. If they were unfit to be heard earlier, how are they fit to be heard later? And if they are fit to be heard later, then they were obviously wrongly prevented from defending themselves earlier.

If such an interpretation is accepted as being legally valid, it means that a defendant has already been punished (without being given the opportunity to be heard) and can now only defend himself or herself from being punished further. Either way, the fact remains that he or she was punished in violation of the principle of audi alteram partem. Moreover, it begs the question that if the claimant is unable to prove his or her case while producing evidence, or if the defendant is able to provide evidence rendering the entire case of the claimant as false, what will happen to the ‘general damages’ that the defendant was already made to pay?

Such legal absurdity cannot, in the greater interest of society, be allowed to remain in field.

Law of Evidence, Qanun-e-Shahadat, Not Mandatory

Section 23 of the Act of 2024 is reproduced below:

“23. The Qanun-e-Shahadat 1984 (P.O. No. 10 of 1984) shall not apply to the proceedings under the Act.”

This begs the question that if the law of evidence does not apply, on what basis will the tribunal decide whether or not a fact stands proved? This provision, too, gives a lot discretion to the tribunal to decide what can and cannot be considered evidence. The apparent result will be that a standard of evidence regarded as sufficient in one case may be regarded as insufficient in another and vice versa.

The Constitution guarantees that the citizens of Pakistan have the right to be dealt with in accordance with the law[6] and be equal in the eyes of law.[7] The relevant Articles are reproduced below:

“4. (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.

(2) In particular–

(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.”

“25. (1) All citizens are equal before law and are entitled to equal protection of law.”

Article 4 of the Constitution has been deemed by the honourable Lahore High Court to enjoy a status above that of even fundamental rights guaranteed under the Constitution owing to the fact that it cannot be suspended.[8] The relevant portion of this judgment is reproduced below:

“Article 4 of the Constitution states that it is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan to enjoy the protection of law and to be treated in accordance with the law. Chief Justice Muhammad Munir writes that Article 4 of the Constitution confers a more basic right than the fundamental rights because, unlike the fundamental rights, it cannot be suspended.”

In addition, the honourable Supreme Court of Pakistan has interpreted Article 25 of the Constitution in the following words:

“(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;

(ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;

(iii) that different laws can validly be enacted for different sexes, persons in different age group, persons having different financial standings, and persons accused of heinous crimes;

(iv) that no standard of universal application to test reasonableness of a classification can be laid down as what maybe a reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;

(v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;

(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;

(vii) that in order to make a classification reasonable, it should be based—

• On an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;

• That the differentia must have rational nexus to the object sought to be achieved by such classification.”[9]

The Act of 2024, however, does not fulfil any of the points mentioned above concerning the power of the tribunal to decide when and when not to apply the provisions of the Qanun-e-Shahadat Order (QSO), 1984. For the sake of argument, if it is assumed that Section 23 of the 2024 Act means that the provisions of the QSO will not be applied at all, on what basis will the tribunal decide what standard of evidence is admissible and what is not?

This is clearly a recipe for violating Articles 4 and 25 of the Constitution.

It violates Article 4 because when people have the right to be treated in accordance with the law, it should be clear what, exactly, that law is. It cannot be left to the unguided discretion of a tribunal to decide what the law—including the law of evidence—is.

It violates Article 25 of the Constitution because all citizens are equal before the law, hence, the law that is to be applied to them—including the law of evidence—should be the same. It has been left completely to the discretion of the tribunal to decide what evidence is admissible and what is not, with no guidelines or benchmarks to ensure universal—or even consistent—application of the rules related to evidence. If anything, the law which does exist in the country for this purpose, i.e. the QSO, has been declared inapplicable.

Therefore, Section 23 of the 2024 Act is also ultra vires to the Constitution.

Principle of Burden of Proof Violated

Another issue with the 2024 Act is related to the burden of proof.[10] The relevant part of the 2024 Act that deals with this is reproduced below:

“17. Onus to prove. – Notwithstanding anything contained in this Act, the Claimant shall not be bound to establish his reputation, but it shall be sufficient if he proves any damage, over and above the General Damages to his reputation against the Defendant.”

First, the law says that, “…it shall be sufficient if he proves any damage, over and above the General Damages.” In other words, evidence is only required after ‘general damages’ have been awarded. This aspect, and why it is unconstitutional, has already been discussed earlier in this piece and need not be repeated.

Additionally, it is an established principle of law that those who allege something have to prove it.

As mentioned earlier, the law of evidence in Pakistan is the QSO. The relevant provisions of the QSO dealing with the burden of proof are reproduced below:

“117. Burden of proof: (1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”

Supporters of the 2024 Act may argue that the QSO is not applicable. This point, however, has already been discussed.

Even otherwise, the honourable Supreme Court of Pakistan has held that it is an established principle of law that those who allege a fact have to prove it and, if they are unable to do so, the case will have to be decided against them.[11] The relevant portion of this judgment is reproduced below:

“…It is a well settled exposition of law that the plaintiff must succeed on the strength of his own case rather than the weakness of the defendant. The lawsuits are determined on preponderance or weighing the scale of probabilities in which Court has to see which party has succeeded to prove his case and discharged the onus of proof which can be scrutinized as a whole together with the contradictions, discrepancies or dearth of proof…”

Again, some may argue that these observations of the Supreme Court are in the context of Article 117 of the QSO and thus inapplicable. However, the fact that it is a “well-settled exposition of law” shows that it will not be easy to go against it. This is because established jurisprudence cannot be ignored for the sake of legitimizing one law—and a highly controversial one at that—in the absence of any compelling reasons. Doing so would contradict the principle of stare decisis, setting a bad precedent. This is because doing so has the potential to open the floodgates for legislators to make laws that contradict established legal principles. As the saying goes, power corrupts and absolute power corrupts absolutely. Legislators cannot be given a free hand to contradict established legal principles at whim.

Comparison with Family Law

Supporters of the 2024 Act may even argue that the provisions of the QSO are not applicable in cases before family courts.[12] The said provisions of the Family Courts Act are reproduced below:

“17. Provisions of Evidence Act and Code of Civil Procedure not to apply. – (1) Save as otherwise expressly provided by or under this Act, the provisions of the] Qanun-e-Shahadat, 1984 (P.O. No. 10 of 1984)]… shall not apply to proceedings before any Family Court [in respect of Part of Schedule].”

Proponents of the 2024 Act can argue that if the Family Courts Act can bar the use of QSO in proceedings before family courts, then the 2024 Act can bar the use of QSO in proceedings before the tribunals as well. However, this argument suffers from two main faults.

The first issue is that the Lahore High Court has held that although the QSO is not applicable to proceedings before family courts, the basic principles expounded therein can still be used.[13] The relevant portion of this judgment is reproduced below:

“Although the application of the Qanun-e-Shahadat Order, 1984 has been deliberately ousted from the proceedings before Family Courts, the principles governing proving of a fact can be applied while evaluating evidence presented to Family Courts.”

The second issue is that the purpose of the Family Courts Act was to deal with a special class of persons (i.e. family members) and provide expeditious justice to them.[14] The relevant portion of this judgment is reproduced below:

“…It was, therefore, that the Act was promulgated, which is a special law for special cases in respect of special disputes between a special class of people i.e. husband and wife and children in case of their maintenance and custody…

The object was to have expeditious disposal of such matters in the shortest possible time… The provisions of the Code and the Evidence Act were made inapplicable on the strength of Section 17 of the Act… Similarly, strict adherence to the rules of the Evidence Act, if followed, would also create so many hindrances in recording of the evidence and technical bars as to the admissibility and relevance of the evidence. It is, therefore, that even the provisions of the Evidence Act were made inapplicable to avoid technicalities.”

Thus, an analogy between the Family Courts Act and the Act of 2024 cannot be made because:

• the general principles of QSO can still be applied to proceedings before family courts; and
• the Family Courts Act has been promulgated for specific cases and specific people, whereas the Act of 2024 is, quite clearly, a general law.

Special Relief for “Holder of Constitutional Office”

Another controversial provision is Section 11(3) according to which a “holder of constitutional office” will not have to file a claim or appear for proceedings himself or herself and can do so through an “authorized officer or attorney”. The said provision is reproduced below:

“11. Procedure of Tribunal

(3) In case of a claim, if so desired to be filed by the holder of a Constitutional Office, the same may be filed through an authorized officer or attorney, without there being a need for the holder of the Constitutional Office to put up his appearance during the proceedings. Any statement made by the authorized officer or attorney shall be deemed to be a statement of the holder of Constitutional Office:

Provided that any change of status or position of the holder of the Constitutional Office or cessation of his position as such will not affect the proceedings already initiated and the same shall continue and be concluded in the same mode and manner, on the basis of such position, as it stood on the day when the claim was filed.”

“Holder of constitutional office” has been defined in the following words:

“‘Constitutional Office’ means the President, Governor, Chief Justice of Pakistan and Judges of the Supreme Court, Chief Justice and Judges of the Lahore High Court, Prime Minister, leader of the Opposition in the National Assembly, Speaker of the National Assembly, Chairman of the Senate, Chief Minister, leader of the Opposition in Provincial Assembly, Speakers of Provincial Assemblies, Chairman and members of Election Commission of Pakistan, the Auditor General of Pakistan, the Chairman, Joint Chiefs of Staff Committee, the Chief of the Army Staff, the Chief of the Naval Staff and the Chief of the Air Staff.”[15]

In short, the people who hold the above-mentioned offices on the day of instituting a claim do not need to appear themselves; rather, they can do so through “an authorized officer or attorney”. This privilege will continue even after the individual concerned no longer holds any of the above-mentioned offices, provided that he or she filed a claim while holding such office. By specifically mentioning the holders of the above-mentioned offices, it can safely be said that the people who do not hold such offices are not entitled to the privilege outlined in Section 11(3).

This is illogical for two main reasons:

• First, it is obvious that what is being discussed in Section 11(3) is the concept of power of attorney.[16] Those who practice in courts (both within and outside Pakistan) are aware that almost every person can exercise this power and appoint “an authorized officer or attorney” to represent him or her in cases before the courts. Section 11(3), thus, goes against well-settled legal—and, dare I say, common sense—principles. This provision is legally absurd.
• Secondly, Section 11(3) specifically grants this right to a “holder of constitutional office”. As discussed earlier, while the right to equality before the law allows different people to be treated differently, it must be based on intelligible differentia. What is the intelligible differentia that allows a “holder of constitutional office” to execute a power of attorney while denying the same right to everyone else? Clearly, there is none.

Territorial Jurisdiction of Tribunals

Another issue with the Act of 2024 is that of territorial jurisdiction of the tribunals vis-à-vis “holders of constitutional office”. According to the definition provided in Section 2(f), it appears that people who hold all “offices” mentioned in the Constitution are entitled to the privilege of being able to utilize a power of attorney. However, what is interesting is that Section 2(f) has specifically mentioned the Chief Justice and judges of the Supreme Court and Lahore High Court as well as the Chief Minister and the Leader of the Opposition in the Provincial Assembly, while mentioning the Speakers of Provincial Assemblies at the same time.

The first question that comes to mind when reading this is that the Chief Justice and judges of other High Courts can also be referred to as “holders of constitutional office”, as these offices have also been mentioned in the Constitution. If someone argues that the Act of 2024 is a law passed by the Punjab Assembly and is thus limited to the High Court in Punjab, it begs the question of how the Chief Justice and judges of the Supreme Court able to avail its provisions.

Similarly, with regard to the Chief Minister and Leader of the Opposition, singular terms “Chief Minister”, “Leader” and “Provincial Assembly” have been used, but for the Speakers of Provincial Assemblies, plural terms “Speakers” and “Provincial Assemblies” have been used. Based on a plain reading of Section 2(f), it seems that its provisions apply to the Chief Minister and Leader of Opposition of only one province (presumably Punjab) but extend to the Speakers of other Provincial Assemblies along with the Speaker of the Punjab Assembly.

This, too, appears to be contradictory and there seems to be no intelligible differentia on why some people from outside Punjab can avail the facilities of Section 2(f) while others cannot.

Comment on Proceedings Barred

Another issue with this law is that it prohibits any discussion on any proceedings pending before the tribunals.[17] The relevant provision is reproduced below:

“12. No comment on pending proceedings. – (1) Notwithstanding anything to the contrary in this Act or in any other law for the time being in force, no person (including but not limited to, the parties to the proceedings before the Tribunal, their counsel and legal advisers, witnesses, the member of the Tribunal, court staff, or any other third person) shall be permitted to comment or make any statement relating to any proceedings pending before the Tribunal under this Act. This clause shall apply automatically from the inception till the final conclusion of the proceedings, and shall not require any order to this effect being specifically passed by the Tribunal or any other authority.

(2) Any person who is found in violation of the prohibition imposed by sub-section (1) by the Tribunal, whether on the application of any person or on its own motion, shall be liable to pay an initial fine of Rs. 50,000/- (Rupees Fifty Thousand) for each violation, along with an additional Rs. 10,000/- (Rupees Ten Thousand) for each day that the said violation continues. In case of more than one violation, the fines so prescribed shall be payable for each violation separately.

(3) No defense whatsoever, such as fair comment, discussion in the public interest, an expression of opinion or fact, comment made in good faith, ignorance of law etc. shall be available to any person for violation of sub-section (1).”

As mentioned earlier, no law in Pakistan can violate Fundamental Rights guaranteed by the Constitution. As far as Section 12 of the 2024 Act is concerned, the relevant rights are the rights to freedom of speech[18]in general and access to information from public bodies in particular.[19] The constitutional provisions dealing with these two rights are reproduced below:

“Freedom of speech, etc. 19. 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 defense of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, [commission of] or incitement to an offence.”

“Right to information. 19A. 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.”

Based on Article 19 of the Constitution, the freedom of speech can be restricted by way of reasonable restrictions imposed by law in matters involving:

• the glory of Islam;
• the integrity, security or defence of Pakistan or any part thereof;
• friendly relations with foreign states;
• public order;
• decency or morality;
• contempt of court; or
• commission of or incitement to an offence.

As obvious, proceedings before a tribunal constituted under the Act of 2024 are not mentioned. Even if—and that is a very big “if”—the Constitution is somehow amended to insert “proceedings before a tribunal constituted under the Punjab Defamation Act, 2024” into Article 19, the same would be unconstitutional on the ground of the right to equality under Article 25 of the Constitution i.e. why should one particular tribunal enjoy a status that other tribunals or courts, etc. do not? Even otherwise, such restrictions are not, by any stretch of the imagination, “reasonable”, which is a requirement under Article 19 of the Constitution regarding restrictions placed on the freedom of speech.

Furthermore, matters related to defamation, like all other cases, can be matters of public importance. Information related to these can be regulated by reasonable restrictions imposed by law in line with Article 19A of the Constitution, but a blanket ban cannot be imposed on them.

The provisions of Section 12 also appear to be self-contradictory. On one hand, subsection (1) provides that even a member of the tribunal cannot comment on the proceedings and on the other hand, subsection (2) provides that the tribunal will impose the fine.

The member of the tribunal is the one who conducts proceedings of the tribunal.[20] The relevant portion of the 2024 Act is reproduced below:

“8. Establishment of Tribunal. – (1) The Government may, by notification in the official Gazette, establish as many Tribunals as it considers necessary to exercise jurisdiction under this Act and appoint a Member for each such Tribunal…”

If Section 8 of the 2024 Act is read with Sections 12(1) and (2) of the same Act, it becomes clear that if a member of a tribunal comments on the proceedings before the tribunal, such member will have the power to impose a fine on himself or herself.

This is in violation of the maxim nemo judex in causa (no man can be a judge in his own case), which is also part of the right to a fair trial under Article 10A of the Constitution.[21] The honourable Supreme Court of Pakistan has held the following in this regard:

“25. The right to fair trial has been acknowledged and recognized by our Courts since long and is by now well entrenched in our jurisprudence. The ‘right to a fair trial’ undoubtedly means a right to a proper hearing by an unbiased competent forum. The latter component of a ‘fair trial’ is based on the age-old maxim ‘Nemo judex in causa’ that ‘no man can be a judge in his own cause’. This principle has been further expounded to mean that a Judge must not hear a case in which he has a personal interest, whether or not his decision is influenced by his interest, for ‘justice should not only be done but be seen to have been done’.”

Furthermore, the Islamabad High Court in the case of Messrs Pakistan LNG Ltd has held the following:[22]

“7. The principles of natural justice are also well settled. It was held by superior Courts even prior to the introduction of Article 10-A within the Constitution that to be treated in accordance with principles of natural justice is to be regarded as a fundamental right of a citizen. The principles of natural justice are understood to include the right of a citizen to a hearing and the right to be heard by an impartial Tribunal. The independence of judiciary is recognized as a salient feature of the Constitution and the right to access justice includes the right to have one’s civil entitlements and obligations adjudicated by a Tribunal or Court that is a neutral arbiter of law. The importance of these rights was formally recognized when Article 10-A of the Constitution was introduced in the Constitution by the 18^th Constitutional Amendment to afford a textual basis to such rights.”

Granting the member of a tribunal the power to fine himself or herself goes against this principle and is thus ultra vires to Article 10A of the Constitution.

Principles of Mustafa Impex Case Applicable

In the landmark case of Mustafa Impex, the honourable Supreme Court of Pakistan held that taxes could be levied strictly in accordance with the law and not otherwise.[23] The relevant portion of this judgment is reproduced below for ease of reference:

“…Payments of tax amount to a corresponding deprivation of property and, since the right to property is a fundamental right, this can only be done by means of strict compliance with the law…”

The same logic can be applied to damages imposed by a court, as the payment of damages, in the same way as the payment of taxes, “amounts to a corresponding deprivation of property”. Needless to say, this is because when people lose money in the form of paying damages, they will not only be losing money but will also be left with less financial resources to invest in other forms of property.

Therefore, the payment of damages also has to be strictly in accordance with the law. However, for reasons already discussed in detail, the payment of ‘general damages’ under the 2024 Act is unconstitutional. This is especially true considering that the minimum amount of ‘general damages’ under the 2024 Act is PKR 3 million.[24]

Doctrine of Severability

Article 8 of the Constitution (quoted at the start of this piece) states that the laws inconsistent with fundamental rights guaranteed in the Constitution will be void “to the extent of such inconsistency”. This has been referred to by the honourable Supreme Court of Pakistan as the doctrine of severability, i.e. if part of a statute is invalid, only that part will be struck down and the remaining parts of the same law which are within the legally allowed parameters of law will be allowed to stay in field. However, the Supreme Court also clarified that if the valid and invalid parts of the law are intrinsically linked and cannot be separated, then the whole law will have to be struck down.[25] The relevant portion of this judgment is reproduced below:

“From a perusal of the above case law, it is clear that the doctrine of severability permits a Court to sever the unconstitutional portion of a partially constitutional statute in order to preserve the operation of any uncontested or valid remainder, but if the valid portion is so closely mixed up with the invalid portion that it cannot be separated without leaving an incomplete or more or less mixed remainder, the Court will declare the entire Act void.”

The Act of 2024 as a whole is void. This is because (as has also been mentioned earlier) all the proceedings that are to be undertaken after the issuing of summons to the defendant are, in one way or the other, unconstitutional. Only the filing of a claim (i.e. filing of plaint) and issuance of summons to the defendant appear to be within the permissible limits of the Constitution. If only these aspects are allowed to remain in effect and the rest of the law is struck down, it will definitely leave “an incomplete… remainder”. This is because proceedings would stop after the issuance of summons and there would be no purpose left in the proceedings – the only thing that would be achieved is that summons would be issued.

Conclusion

To summarize, the Punjab Defamation Act 2024, particularly Sections 11(3), 12, 13(1)(11)(12)(13)(14), 17 and 23 are ultra vires to Articles 4, 10A, 19, 19A, 23, 24 and 25 of the Constitution. These particular sections are intrinsically linked and inseparable from the rest of the statute, rendering the entire statute unconstitutional and void. It should be struck down.

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References

[1] Article 8 of the Constitution

[2] Article 10A of the Constitution

[3] Section 3 of the 2024 Act

[4] Justice Qazi Faez Isa Vs. President of Pakistan, PLD 2022 SC 119, para 29

[5] Ibid para 54

[6] Ibid Article 4

[7] Ibid Article 25

[8] Bashir Ali Shahzad Vs. Bank of Punjab through President and 2 others, 2023 PLC (C.S.) 1059, para 23

[9] Government of Balochistan Vs. Azizullah Memon, PLD 1993 SC 341, page 358

[10] Ibid Section 17

[11] Nasir Ali Vs. Muhammad Asghar, PLD 2022 SC 1054, para 6

[12] Section 17 of the Family Courts Act, 1964 (hereinafter to be referred to as the “Family Courts Act”

[13] Mst. Sharaini Bibi and another Vs. Additional District Judge and 2 others, MLD 2023 Lahore 51, para 14

[14] Farzana Rasool and 3 others Vs. Dr. Muhammad Bashir and others, 2011 SCMR 1361, para 22

[15] Ibid Section 2(f)

[16] Refer to the Power of Attorney Act, 1882, especially Section 2 of the same.

[17] Ibid Section 12

[18] Ibid Article 19

[19] Ibid Article 19A

[20] Ibid Section 8

[21] Suo Moto Case No. 4 of 2012, PLD 2012 SC 553, para 25

[22] Messrs Pakistan LNG Limited through Authorized Representative Vs. Federation of Pakistan, through Secretary Revenue Division, Ministry of Finance and 2 others, PTD 2022 Islamabad 1763, para 7

[23] Messrs Mustafa Impex, Karachi and others Vs. The Government of Pakistan through Secretary Finance, Islamabad and others, PLD 2016 SC 808, para 51

[24] Ibid Section 2(k)

[25] Baz Muhammad Kakar and others Vs. Federation of Pakistan through Ministry of Law & Justice and others, PLD 2012 SC 923, para 98

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