By: Qamar Bashir

The entire primetime talk shows overwhelmingly discussed the Punjab government’s recently notified Punjab Defamation Act 2024, with the print media generating articles and editorials on the aggressive nature of this law. Social media is rife with criticism of the legislation, which has already been challenged in the Lahore High Court and admitted for hearing.

One question that dominated the discussion on all the shows was why it was so important and special for PML(N) and Punjab, compared to the Federation and other provinces, that this bill—termed draconian and authoritarian by media analysts and legal experts—was bulldozed through the Punjab Assembly, even without the consent of one of its biggest coalition partners, the PPP. The second and most important point discussed was the jurisdictional limitations and enforceability of the Act within Pakistan.

Both questions are difficult to answer. However, while attempting to brainstorm the first question, let us examine the stated objectives, which are to provide legal protection from false, misleading, and defamatory claims made via print, electronic, and social media against public officials and private citizens. These claims violate people’s privacy and damage the reputation and image of public figures or the government by defaming, slandering, and libeling them. The bill is necessary to contain such unwarranted criticism and dislike for a person or authority.

However, analysts view, albeit without any evidence, this Act as an attempt by the PML(N) to consolidate their control and influence in the province by curbing dissent and opposition within their stronghold to ensure smoother governance and political dominance. It might be aimed at centralizing power, streamlining decision-making, and implementing policies, albeit at the cost of democratic processes and coalition dynamics. It may also be an attempt to restrict the activities of rival political groups, curb protests, and control media narratives more tightly.

They also purported again without any conclusive evidence that  within the coalition, there could be power struggles and disagreements that have led the PML(N) to act unilaterally. The exclusion of the PPP’s consent indicates possible rifts and a desire by PML(N) to assert its dominance over the coalition and provincial governance. There might be underlying economic interests, such as investment projects, land reforms, or industrial policies that the PML(N) government aims to push through with minimal opposition.

The reply to the other question is even trickier. If alleged defamation occurs outside the province of Punjab, it would face challenges in bringing the alleged defamer to task. It would require coordination with federal authorities or the respective provincial government, through complex legal processes. However, when alleged defamation occurs outside Pakistan, the complexities increase further. The Punjab government lacks the authority to unilaterally enforce its defamation laws internationally. Thus, prosecuting or penalizing individuals residing outside the province and outside Pakistan becomes highly impractical.

Having said this, let us dive deep into the most controversial provisions of the said Act, which are making headlines in print, electronic, and digital media. Let us start with Section 3 of the said Act, which provides a speedy remedy to the person defamed by empowering them to initiate an action under this Act without proof of actual damage or loss. Where defamation is proved, general damages shall be presumed to have been suffered by the person defamed.

The onus to prove that defamation has occurred also does not rest with the claimant, as the Act does not require the claimant to establish their reputation. It shall be sufficient if they prove any damage, over and above the general damages to their reputation, against the defendant.

The general damages, as defined under Section 2, are damages to be granted by the Tribunal at the time of granting a preliminary decree if the defendant fails to obtain leave to defend in terms of Section 13 of this Act, with a minimum of Rs. 3,000,000/- (Rupees Three Million).

In this definition, the phrase “obtain the leave to defend” is key to understanding the full implication of this law. This means that the defendant cannot automatically defend against the claim but must apply to the tribunal to get permission to present their defense. In case of their failure to obtain leave to defend, the allegations in the claim are deemed to be admitted.

The tribunal will then pass a preliminary decree of general damages in favor of the person defamed, which, according to Section 2 of the said Act, is a minimum of Rs. 3,000,000/-. The story does not end here; there is another layer of deterrent to protect the defamed person. The preliminary decree passed under Section 15(1) cannot be stayed either by the Tribunal or the Lahore High Court.

Let’s move further and ask ourselves another question: if the defendant is granted leave to defend, then what? Section 13(13) provides that if the claimant seeks to pursue the case beyond the preliminary decree of general damages, they are empowered to press the charges further. The tribunal may impose special damages, defined in Section 2 as damages granted after the final conclusion of the proceedings. If the claimant proceeds further after the preliminary decree and establishes their claim for such damages, these will be in addition to the general damages granted by the tribunal.

Under Section 21, if defamation is established, the tribunal, in addition to general damages, may direct the defendant to tender an unconditional apology, published in the same manner and with the same prominence as the defamatory statement. The defendant must also pay damages in terms of this Act. Furthermore, the tribunal may direct the relevant regulatory authority to suspend or block the defendant’s social media account or any other medium through which the defamatory content was disseminated.

In a scenario where the defendant chooses not to appear before the tribunal to present their defense, Section 18 of the said Act empowers the tribunal to pass an ex-parte order. This order will attain finality and will not be appealable, unless the defendant files for leave to defend within 30 days with the tribunal.

Even more interestingly, the Qanun-e-Shahadat 1984, which lays down the rules and principles for admitting and evaluating evidence in judicial proceedings, does not apply to the proceedings under this Act. This implies that the tribunal or court handling cases under this Act can adopt a more flexible and informal approach to evaluating evidence. The tribunal will have greater discretion in deciding what evidence to consider and how to evaluate it. They can even admit evidence that might not meet the stringent criteria of the Qanun-e-Shahadat. This is fraught with risks of inconsistency in how evidence is treated in different cases, depending on the discretion of individual tribunals or judges.

The strength of this provision is that it strongly protects individuals’ reputations by allowing them to seek redress without the burden of proving actual damage, which can be challenging. Besides, the presumption of general damages serves as a deterrent against defamatory statements, encouraging individuals and entities to be more cautious about what they communicate.

The weakness could be that the lack of requirement to prove actual damage might lead to frivolous or vexatious lawsuits, potentially stifling free speech and legitimate criticism. Additionally, the imposition of general damages without clear guidelines might result in inconsistent or disproportionate awards, creating legal uncertainty.

By: Qamar Bashir

Former Press Secretary to the President

Former Press Minister to the Embassy of Pakistan to France

Former MD, SRBC