Sued for saying #MeToo
Criminal defamation lawsuits are rising at an alarming rate in Pakistan. What happens when you’re served?
AT FIRST THEwhispers were hushed and halting, unsure of the moment, uncertain of the response. Then, borne by momentum and bolstered by numbers, stories of abuse and assault flooded social media. For a brief moment, as 2017 turned into 2018, as the #MeToo Movement exploded in the US and reverberated worldwide, conversations about gender justice seemed imminent, perhaps inevitable — even in Pakistan. Topics like consent and abuse within homes and schools, previously considered taboo, were being discussed openly. Men were learning every third woman they knew had most likely been harassed. The age-old whisper networks through which women warned each other about sexual offenders were going public. Conversations unfurled about how to channel this outrage and indignation towards furthering gender justice.
Then the legal notices began arriving.
AT THE MOMENT, Maha, a 28-year-old lawyer, is herself a defendant in a criminal defamation case. Her alleged crime? Posting on social media about a public figure who has been accused of rape — accused not by Maha, but by another person. When she was first served a legal notice by the Federal Investigation Agency (FIA), Maha was flummoxed by its vagueness: it stated she was well aware of the complaint, but she didn’t recognise the name of the plaintiff and so had no idea whom she had allegedly defamed, or how. Yet, the FIA notice directed her to present herself at the FIA office, along with relevant documents to defend herself.
Maha has been battling this case for seven months now. When her trial began, the magistrate approved a search and seize order against her without asking the FIA to justify the need for one, she says. During the month and a half it took to appeal this, she moved out of her house to stay with friends; she was terrified her residence would be raided in the middle of the night, her devices seized. Her work suffered: since this was a criminal case, she was forced to appear in person for every hearing. Often she waits for up to six hours for her turn before a judge — only to be told the hearing has been postponed. Simmering anxiety has solidified into a sinking depression. She was recently prescribed mood stabilisers. Still, her background has allowed her to put up a reasonable fight. “It makes a huge difference that I’m a lawyer,” she agreed.
For those less versed in the law, fighting a defamation lawsuit has been even more taxing: financially, emotionally and psychologically. Soch spoke to seven men and women who have been served defamation notices or credibly threatened with one. “It’s like this big monster, a bedtime story you tell your child: go to sleep or this thing is going to get you,” one university student told Soch on the condition of anonymity. “This is what defamation has become for us.”
IT IS NOTORIOUSLYdifficult to prove sexual harassment or assault in a Pakistani court. The system is neither sensitised nor equipped to deal with such cases: women are still subjected, for instance, to the demeaning, draconian and unscientific ‘two-finger test’ to assess vaginal elasticity. If you decide to take your rapist to court, there are legal fees to shoulder, emotional grit to muster, and hours upon hours to squander upon an inefficient judicial system. Many feel their only recourse — to catharsis, if not justice — is to warn others. But the recent onslaught of defamation lawsuits in Pakistan is throttling even this public articulation.
“Singer and actor Ali Zafar, media tycoon Hameed Haroon, trans model Kami Sid and vlogger Ukhano have all filed defamation lawsuits against the men or women who have publicly accused them of sexual misconduct”
Defamation laws exist to protect a person’s reputation against libel—in theory, a reasonable proposition. In Pakistan, both civil and criminal defamation laws are in use: Sections 499 and 500 of the Pakistan Penal Code, Section 20 of the Prevention of Electronic Crimes Act (Peca) — which criminalises online defamation — and the Civil Defamation Ordinance 2002, a civil law. The distinction is crucial: convictions under criminal defamation law include jail time, whereas under civil law, punishments are mostly monetary.
Defamation laws have long been used to stifle dissent and to intimidate journalists critiquing the state and its institutions. As recently as 2019, journalist Shahzeb Jillani was tried for criminal defamation, hate speech and cyber terrorism because he criticised the military during a news broadcast. All charges were eventually dismissed. But now, these laws are also being wielded against individuals attempting to talk about unchecked, unreported sexual misconduct. Singer and actor Ali Zafar, media tycoon Hameed Haroon, trans model Kami Sid and vlogger Ukhano have all filed defamation lawsuits against the men or women who have publicly accused them of sexual misconduct — as well as against those supporting the accusers. Students at multiple universities have been threatened with criminal defamation lawsuits — by fellow students as well as the universities they attend. One of the accused went a step further, posting a video informing his hundreds of thousands of followers how they too can file a case.
These developments have alarmed activists, feminists and human rights lawyers. “All defamation laws will have a stifling effect on free speech but criminal laws have a particularly repressive effect,” said Sara Malkani, a lawyer who has worked with defendants on a number of such cases. “The penalties for violating criminal defamation laws are so harsh that they will act — and they do act—as a deterrent to those raising voices and raising important issues of public concern and public debate.”
The problem is two-fold, according to Farieha Aziz, founding member of Bolo Bhi, a digital rights organisation. The mere existence of the laws is problematic — but so is the manner in which they’re worded. “The most vague is Section 20 of Peca, which basically says ‘circulation’ or if you publish false information … other laws still have certain defences built into them.” Despite these defences, however, the entire criminal investigation and trial process can be immensely harrowing — and usually in criminal cases, Aziz noted, there is a determination only at the end of the entire process. So, whether or not what you said was defamatory, you have to go through the process when the FIA comes knocking.
THE FIRST SWATHEof FIA notices for Muhammad Moiz arrived at his parents’ doorstep, where he no longer lives. Due to the mix-up, authorities declared him an absconder; his elderly parents panicked, already worried for his safety as an ethnic minority. Earlier, in May 2019, Moiz posted on social media, alleging that trans model and activist Kami Sid had raped an underage trans girl in 2016. Moiz had worked with Kami at an NGO at the time of the alleged assault and conducted the NGO’s initial internal investigation into the accusation. He felt compelled to speak up when he found out Kami’s accuser was dead. “I didn’t speak out before because I thought the victim was alive and I didn’t want to put her at risk. But when I found out the poor girl died, I realised no one will speak about it now, no one will bring her justice now.”
A few months later, Moiz found himself in the FIA office responding to charges of criminal defamation, cyberstalking and cyberharassment. It was a surreal situation: at one point, he says, one of the FIA officers asked him inappropriate questions about Kami’s genitals and he found himself giving his interrogators a lesson on gender and sexuality. Moiz, who moonlights as a drag artist, also has a search and seize order against him. He sometimes worries: What if the FIA raids his flat and finds the women’s clothes he uses for drag? How will its officers treat him then?
“FIA Additional Director Faizullah Korejo told Soch that the initial summons is intentionally vague ‘otherwise people will go straight to the high courts and the FIA won’t be able to investigate.'”
The agency has come under criticism for how it is pursuing these cases. It initially sends out a generic summons, containing an inquiry number and the date on which the person is required to appear in court. Filmmaker Jami, who is fighting a criminal suit — from director Sohail Javed, after he read out a letter from an anonymous assault survivor at the Hyderabad Lahooti Melo in 2019 — as well as a civil suit, from publisher Haroon, whom Jami has accused of rape, said that the initial FIA notice was so vague, he thought it was a warrant for his arrest. Farieha Aziz, who has worked with defendants, said people are receiving their summons after the date of the hearing has passed and that they are often required to travel to another city to defend themselves against an unknown charge. Moreover, many summons are sent without obtaining prior court permission.
FIA Additional Director Faizullah Korejo told Soch that the initial summons is intentionally vague “otherwise people will go straight to the high courts and the FIA won’t be able to investigate.” He claimed that the FIA has employed more female officers than any other law enforcement agency in the country — but admitted that the personnel did not receive any gender sensitivity training. As for the FIA’s aggressive pursuit of some cases over others, Korejo said, “Whoever makes the most noise, we give them the most attention. Sometimes corporations and businesses are involved and they make a lot of noise.”
Moiz can’t make much noise but Kami can, he says — she has amassed a great deal of social capital in recent years. According to Moiz, FIA investigators have made him agree to not speak against Kami publicly whilst his case is pending. “But I didn’t say she is a convicted rapist. I said she has been accused of rape.” Friends of Kami have sent him threatening messages, he says, and efforts have been made to ostracise him socially. This particular instance of legal retribution, unfolding within a community that itself has few legal safeguards, is especially instructive: it shows just how situational and relational power can be and, with faulty laws in place, how it doesn’t take much for the oppressed to become an oppressor.
SO WHAT DOyou do if you can neither go to court nor speak out publicly? People trying to warn others about potential predators now write vaguely about the harassment or violence they faced. Posts are anonymous or speckled with asterisks, masking the names of alleged perpetrators or the institutions that shield them. Important conversations about power have retreated to the nooks of the internet, such as private Facebook and WhatsApp groups.
One private university student began organising artistic performances instead of overt political protests to talk about her experience of harassment on campus. The notion that art could be resistance didn’t initially occur to the university administration — but when up to 200 students engaged with her last performance, a senior administrator from her university approached her, brandishing the threat of a defamation suit. Still, staying silent isn’t seen as an option. Some students have started organising in small groups to figure out a way forward. Inter-university feminist dialogues have sprung up.
“In the last 20 years, over 30 countries have decriminalised defamation, including Sri Lanka and the Maldives in South Asia. “
Meanwhile, activists continue to resist the overreach of defamation laws. Human rights groups around the world have consistently reaffirmed that civil laws, such as Pakistan’s Civil Defamation Ordinance 2002, are sufficient protection against malicious slander. In the last 20 years, over 30 countries have decriminalised defamation, including Sri Lanka and the Maldives in South Asia. In Pakistan, the Women’s Action Forum has demanded similar decriminalisation. Moreover, WAF proposes that civil defamation laws should also not apply in sexual harassment or sexual violence cases. “If a case is already pending before a court of harassment,” explained Farieha Aziz. “Then they should stay the defamation case.”
In October 2019, the Senate’s standing committee for human rights resolved to look into the misuse as well as overuse of defamation laws, but no progress has been made since. The FIA is required to submit a report on the implementation of Peca laws every six months but not a single report appears to have been presented before parliament since 2016. Meanwhile, ordinary Pakistanis now think twice or twenty times before speaking out. “I wouldn’t even know where to begin,” said a young woman grappling with this dilemma. “I can’t afford a lawyer… and the other party has a lot of money, so I’d go to jail. I’m from a middle class background, so I have no chance.” ￭
ZAINAB HUSAINis a producer at Soch Videos.
Header illustration by ABID GHANCHI.
*Some names have been changed to protect privacy.