[governance] Pakistan Facebook Detailed Order

Hong Xue hongxueipr at gmail.com
Thu Jun 3 22:47:11 EDT 2010


Many thanks for posting this. It exposes us a new dimension of international
law and enforcement in the context of Internet governance.

A Court in a sovereign state referred to the United Nations Resolution on,
“Combating Defamation of Religious”, No..62/154 as the source of
international law and ordered the "Permanent Ambassador of Islamic Republic
of Pakistan to the United Nations to present a resolution in the General
Assembly of United Nations."

It deserves a careful thinking what the role of pubic international law
plays in the Internet Governance.

Hong





On Fri, Jun 4, 2010 at 6:38 AM, Fouad Bajwa <fouadbajwa at gmail.com> wrote:

> Facebook ban was lifted in Pakistan on the 1st of June 2010. The following
> court orders and proceedings are being shared for information purposes only.
> A special thank you note to Barrister Zahid Jamil for sharing this
> elsewhere. Zahid also clarified that the text below has not been proofed or
> checked by him nor has it been checked by anyone else for typos and hence
> should not be relied upon as official/authoritative text of the order and is
> a best effort on someone’s part to quickly type out a copy of the order. He
> made this available under this understanding and under a complete disclaimer
> from any liability as to its use by anyone.
>
> Form No: HCJD/C-121
>
> ORDER SHEET
>
> IN THE LAHORE HIGH COURT, LAHORE
>
> JUDICIAL DEPARTMENT
>
>
>
> Writ Petition No.10392 of 2010
>
> Islamic Lawyers Movement
>
> Petitioner
>
> Versus
>
> Federation of Pakistan and three others
>
>  Respondents
>
>
>   S. No. of
>
> Order/
>
> Proceeding
>
> Date of order/
>
> Proceeding
>
> Order with signature of Judge, and that of parties or counsel, where
> necessary
>
>
>
> 03)                        31.05.2010             M/s. Zulfiqar Ahmed and
> Muhammad
>
>                                                             Azhar Siddique,
> Advocates for the
>
>                                                             Petitioner.
>
>                                                             Mr. Naveed
> Inayat Malik, Deputy
>
>
> Attorney-General for the Respondents
>
>                                                             with Mudassar
> Hussain, Director,
>
>                                                             Telecom
> Wireless.
>
>
>              As per the directions of this Court vide order dated
> 19.05.2010 the Ministry of Foreign affairs on its directions contacted the
> Embassy of Pakistan in the United States of America.  The Embassy of
> Pakistan in United States of America, at “3517 International Court, NW.
> WASHINGTON, D.C. 2008, Tel: (202) 243-6500,” represented the following to
> the United States Department of State.
>
>
>
> “No.
> Pol-4/2/10
> 21 May 2010
>
>
>
>             The Embassy of the Islamic Republic of Pakistan presents its
> compliments to the Unites State Department State and has the honor to lodge
> a protest over the holding of a blasphemes contests, “EVERYBODY DRAW
> MUHAMMAD DAY” by the website “Facebook” and its affiliates.  The
> announcement of this contest has immensely hurt and discomforted the people
> and the Government of Pakistan.  It was also deliberately and recklessly
> enraged millions of Muslims in Pakistan and globally, who attach an immense
> sanctity to the very holy and sacred status of Prophet Muhammad (Peace Be
> Upon Him).
>
>
>
>             It is the understanding of the Government of Pakistan that as
> per the laws of commerce and Business, the website ‘Facebook’ is governed by
> the legal jurisdiction of the United States of America.  Accordingly, the
> Government of Pakistan strongly urges the Government of the United States of
> America to take effective measure to prevent, stop or block this blasphemous
> contest immediately.
>
>
>
>             The Embassy of the Islamic Republic of Pakistan avails itself
> of this opportunity to renew to the United States Department of State the
> assurances of its highest consideration.
>
>
>
> The US Department of State
>
> Bureau of South and Central Asian Affairs,
>
> (Mr. Brent R. Hartley,
>
> Director, Pakistan-Bangladesh Desk),
>
> 2201, C. Street, NW,
>
> Washington, DC 20520.
>
> Fax: 202-647-3001.
>
>
>
> 2.         The Ministry of Foreign Affairs of Islamic Republic of Pakistan
> received the above stated protest via a fax message No.Pol.4/2/10 dated 21
> st May 2010 from the Embassy of Islamic Republic of Pakistan which
> mentioned the Ministry of Foreign Affairs fax message
> “No.AS(Americas)-1/2010 dated 20th May 2010” stating that an official
> protest was lodged with the United States Government Department of State.
>
>
>
> 3.         The Ministry of Foreign Affairs of Islamic Republic of Pakistan
> submitted its reply to the Deputy Attorney-General of Pakistan Mr. Naveed
> Inayat Malik as under:-
>
>
>
> *MOST IMMEDIATE*
>
> 25 May 2010
>
>
>
> “No.DG (Americas)-1/2010
>
>
>
> SUBJECT:      *W.P. NO.10392/10-TITLED ISLAMIC*
>
>                         *LAWYERS MOVEMENT, VS. FOP ETC*.
>
>                         *IN THE LAHORE HIGH COURT, LAHORE.*
>
>
>
>
>
>             Please refer to this Ministry’s letter of even number dated 21
> May 2010 on the above subject.
>
>             As directed by the Honourable Lahore High Court order, our
> Embassy in Washington was instructed to lodge an official protest with the
> U.S. Department of State, which was done on 21 May 2010.  A copy of the
> protest note is submitted for information of the Honourable Court.
>
>             While expressing the feelings of immense discomfort and hurt
> felt by the Government and the people of Pakistan about the contest, the
> U.S. Government was strongly urged to take effective measures to prevent,
> stop or block this blasphemous contest immediately.
>
>             President Obama’s Special Representative for Pakistan and
> Afghanistan Mr. Richard Holbrooke, in his meeting with our Ambassador,
> conveyed that the U.S. Department of State recognized the sensitivities
> about the issue and also admitted that many of the images that appeared on
> the Facebook were “{deeply offensive” and that the U.S. Government was
> deeply concerned about any deliberate attempt to offend Muslims or members
> of any other religious groups.
>
>
>
> Yours sincerely,
>
>
>
> *(Sohail Khan)*
>
> Director General (Americas)
>
>
>
> Encl: *As above*.
>
>
>
> Mr. Naveed Inayat Malik,
>
> Deputy Attorney General of Pakistan
>
> High Court Building
>
> Lahore.”
>
>
>
>
>
> 4.         While respondents No.3 and 4 have also submitted written reply
> which is reproduced as under:
>
>
>
> *That his Hon’ble High Court through the letter dated 18th May, 2010 of
> the Deputy Attorney-General for Pakistan Mr. Naveed Inayat Malik forwarded
> the copy of the captioned petition of Islamic Lawyer Movement regarding the
> issue of, “Every Body Draw Muhammad Day” on the website namely “Facebook”
> and thereby requiring the answering Respondents No.3 and 4 to submit report
> and parawise comments in the instant matter.*
>
> * *
>
> *2.         “That pursuant to the directions of this Hon’ble High Court
> communicated to the answering respondents No.3 nd 4 by the Ministry of
> Information Technology (MoIT) vide letter No.5-1/2005-DFU, dated 18th May,
> 2010 and requiring the answering Respondents to block the mentioned website
> on Universal Resource Locator (URL) level immediately and to inform the MoIT
> accordingly.  Soon upon the receipt of said directions the answering
> Respondents, i.e. PTA in respectful compliance of this Hon’ble High Court’s
> directions dated 18th May 2010, issued directions vide letter
> No.2-Misc/2010/Enf/PTA dated 18th May, 2010 to all Internet Service
> Providers (ISPs) to immediately block the mentioned Website at URL level and
> continuously monitor the same to ensure compliant with the instructions of
> the Authority (Copies of said MoIT and PTA’s letters are annexed as Annexure
> “A” & “B”).*
>
> * *
>
> *3.         That on the next day MoIT vide letter No.5-1/2005-DFU dated 19
> th May, 2010 required the answering respondents to block mentioned website
> on Internet Protocol (IP) level immediately.  Pursuant to this direction of
> MoIT, the answering respondents again issued directions vide letter
> No.2-Misc/2010/Enf/PTA dated 19th May, 2010 to all ISPs to immediately
> block the mentioned Website at IP level and continuously monitor the same to
> ensure compliance with the instructions of the Authority (copies of said
> MoIT and PTA’s letters are annexed as Annexure “C” & “D”).  It is worth
> mentioning here that the answering Respondents, with the aim and objective
> of sound/secure enforcement and compliance of this Hon’ble Court’s
> directions in the instant matter of grave concern of all the citizen of
> Pakistan established a dedicated “Crises Cell” exclusively
> working/monitoring on 24 hrs basis to observe the directions in true letter
> and spirit.  It is also worthy pointing out here that the answering
> Respondents, while mindful of this Hon’ble Court’s directions in the instant
> manner and during the course of monitoring of the mentioned Website, found
> that the mentioned website was accessible from the Mobile Black Berry
> Service (MBBS) as the main control of this service is outside the country.
> Accordingly, MBBS was blocked by answering Respondents on 20th May, 2010
> at 12:30 a.m. with a view to block access to the mentioned Website in
> Pakistan.  However, MBBS was later restored only for the e-mail access and
> not for the Internet Surfing.  In addition, the answering Respondents during
> the course of strict monitoring found that majority of objectionable
> contents was reported on ”YouTube” Website, leaving the answering
> Respondents with no other option but to block the viewing of “YouTube”
> Website also in Pakistasn.  This fact was intimated to MoIT by the answering
> Respondents vide letter No.10/12/Dir(ICT)PTA/10 dated 20th May, 2010, as
> the subject of “Content Regulation” does not fall within the domain of
> answering Respondents (Copy of said PTA’s letter annexed as Annexure “E”).
> *
>
> * *
>
> *4.         That the answering Respondents, in respectful compliance of
> this Hon’ble High Court’s directions and the MoIT’s directives to, have
> blocked up until now a total of 10,548 web-links (approximately) either
> hosting the objectionable contents or providing access to the same mentioned
> blasphemous contents.  As mentioned earlier, till date two websites namely
> http://www.facebook.com *and *http://www.youtube.com have been completely
> blocked in Pakistan.  The complete blocking of “YouTube” was done because of
> the number of objectionable links be increased to such an extent that PTA
> had no option but to block the whole website.*
>
> * *
>
> *5.         It also worth considering here that the answering respondents
> on their own have no authority to cause blocking of any website(s) rather it
> has to follow the decision/directions of Inter-ministerial Committee for
> Evaluation of Offensive Websites, formed by the Prime Minister of Pakistan
> in the year 2006.  The meetings of the committee are held in MoIT on regular
> basis, wherein it reviews the cases and complaints received with regard to
> offensive website and grant approval for blocking of the same.  As a
> consequence, the answering Respondents cause blocking of such websites as
> and when communicated through MoIT.*
>
> * *
>
> *6.         The following report is hereby submitted in respectful
> compliance of the aforementioned orders/directions of this Hon’ble High
> Court. *
>
> * *
>
> 5.         That due to the immediate and efficient response of the
> concerned Departments of the Government of Islamic Republic of Pakistan the
> blasphemous contents published on the portal “Facebook” was blocked and the
> access to the portal “Facebook” was blocked for its subscribers and
> non-subscribers in the territory of Islamic Republic of Pakistan with
> immediate effect.  After perusing the above said steps taken by the Foreign
> Ministry for lodging an official and sovereign protest to the United States
> of America’s Department of State as well as reply submitted by Government of
> Pakistan, Ministry of Information Technology (IT & Telecom Division) this
> Court feels that some effective measure in respect of publication of
> blasphemous contest have been taken.  Thus, the order regarding blockage of
> website URL, http://www.facebook.com is recalled.
>
>
>
> 6.         Although the efficient and effective measures of the Government
> of Islamic Republic of Pakistan, considering the sensitivity of the core
> issue, are worthy of praise and appreciation, this Court objectively
> reserves considerable apprehensions regarding a lack of effective mechanisms
> which could ensure avoidance of any such like events occurring in future,
> leading to unrest and chaos in the society.
>
>
>
> 7.         There are many and numerous countries with majority Muslim
> populations who have many sustainable and effective mechanisms in place
> which block or deny, to the general public, access to such blasphemous
> contents.  The example of such countries could include the countries of
> majority of Muslim population in Middle East and Asia.
>
>
>
> 8.         This Court directs PTA, MoIT and all other related and concerned
> authorities, dealing with regulation and monitoring of telecommunication and
> internet access to the general public, to come up with effective monitoring
> control and implementation guidelines regarding access towards such
> blasphemous contents over the internet.  As a matter of reference these
> guidelines could be borrowed from the telecommunication and internet
> regulatory authorities of the above mentioned countries.
>
>
>
> 9.         It should be made clear to PTA and MoIT authorities that a
> contextual summary of effective monitoring, control and implementation
> guidelines regarding access to such blasphemous and objectionable contents
> available over the internet should be submitted to this Court  in a the
> detailed, comprehensive and written format by the next date of hearing.
>
>
>
> 10.       There are now available International Regulations regarding the
> publication of blasphemous contents.  The United Nations Resolution on,
> “Combating Defamation of Religious”, No..62/154, reproduced as per the
> official data available regarding this Resolution on the United Nations
> portal was came into force on 181.12.2007.  This Resolution came into its
> final structure *vide* a Resolution, “A/C 3/62/L.35, reproduced as per the
> official data regarding this Resolution on United Nations portal was
> presented and voted at on 20th November 2007 with 95 votes in favour, 52
> against and 30 absentees.  Thus, passing the resolution and making it part
> of the International Law regime.  The Government of Islamic Republic of
> Pakistan and other countries of Muslim majority voted in favour of this
> resolution.
>
>
>
> 11.       The genesis of this resolution, “Combating of Defamation of
> Religious”, which deals with laws governing the effective control of
> Anti-Religious materials publication in the individual countries, had its
> origins in the 1999 Organization of Islamic Countries (OIC) Conference where
> Pakistan drafted and presented the resolution, “Combating Defamation of
> Islam”, which was passed by the delegates present at the conference.  The
> title of this resolution was subsequently changed to, “Combating Defamation
> of Religions” to broaden the scope and implications.  Since 1999, this
> resolution “Combating Defamation of Religions” was presented at the United
> Nations Human Rights Commission.  In 2005 a parallel resolution was
> presented at the General Assembly of the United Nations as well.  The
> resolution “Combating Defamation of Religions” came into in its present
> state when the Government of Islamic Republic of Pakistan and other
> countries of Muslim majority population who wanted and to inform and
> enlighten the world regarding the deeply sentimental and sensitive
> perspectives of there majority population regarding publications of
> Anti-Religious and blasphemous contents.  These countries comprising of
> majority Muslim population resolved and worked together to formulate an
> international regime administering the publication of Anti-Religious and
> blasphemous contents, which would to govern the future conduct of States and
> individuals regarding the publication of Anti-Religious and blasphemous
> contents.  Although this above mentioned resolution is non-binding in
> nature, still the critics of this resolution hypothesize its far reaching
> consequences to be a deliberate attempt to regulate not just the lives of
> individuals but also the context, thus, breaching an individual’s
> universally accepted rights of freedom of expression and speech.
>
>
>
> 12.       That it would be pertinent to mention that the cannons of Islam
> do not prohibit or limit any individual’s right to freedom of expression and
> speech rather it cumulates the phrase “*Your liberty ends where the nose
> of other person starts”*, meaning thereby that any right to freedom of
> expression and speech of one person would not prejudice the right of self
> respect and dignity of the other person.
>
>
>
> 13.       The core issue involved in this matter is the publication and
> advertisement of blasphemous material which was viewed as a deliberate or
> reckless attempt to malign the very holy and sanctimonious stature of
> Prophet of Islam, Hazrat Muhammad (Peace Be Upon Him), on “Facebook”.  This
> had deeply hurt and emotionally injured individual and collective sentiments
> of hundreds of millions of Muslims not just living in the geographical
> territory of Islamic Republic of Pakistan. Keeping in view this deeply
> sensitive e and emotional attachment the majority population of Islamic
> Republic of Pakistan experiences towards the Prophet of Islam, Hazrat
> Muhammad (Peace Be Upon Him), any regulations made for the protection of
> there deeply sensitive and emotional sentiments should not be viewed as in
> conflict with and individual’s universally accepted rights of freedom,
> expressions and speech.
>
>
>
> 14.       Keeping in view the protection of deeply sensitive and emotional
> values of the majority population of Pakistan, and for the purpose of
> keeping harmony and peace in the society this Court directs the Ministry of
> Foreign Affairs, Islamic Republic of Pakistan to direct its Permanent
> Ambassador to the United Nations at its Headquarter in New York to present a
> resolution in the General Assembly of United Nations, in context with the
> United Nations Resolution, “Combating Defamation of Religions” conveying the
> hurt and discomfort suffered by the majority population of Pakistan by the
> publication and promotion of such blasphemous material on “Facebook”.
>
>
>
> 15.       This Court directs the Ministry of Foreign Affairs of Government
> of Pakistan to comply with the above mentioned directions of this Court in
> letter and spirit by the next date of hearing and to submit a written and
> official copy of this direction given to the Permanent Ambassador of Islamic
> Republic of Pakistan to the United Nations regarding the presentation of a
> resolution to the United Nations General Assembly conveying  the hurt and
> discomfort suffered by the majority population of Islamic Republic of
> Pakistan by publication and promotion of such blasphemous material on
> “Facebook”.
>
>
>
> 16.       In case of non-compliance of these above mentioned directions of
> this Court by the Ministry of Foreign Affairs of Islamic Republic of
> Pakistan in relation to specific directions to the Permanent Ambassador of
> Islamic Republic of Pakistan to the United Nations to present a resolution
> in the General Assembly of United Nations, conveying the hurt and discomfort
> suffered by the majority population of Islamic Republic of Pakistan by
> publication and promotion of such blasphemous material on “Facebook” the
> Minister of Foreign Affairs of Islamic Republic of Pakistan has to appear in
> this Court in person to explain why he has not complied with the directions
> of this Court in exact letter and spirit.
>
>
>
> 17.       The Office is directed to send a copy of this order to the
> Ministry of Foreign Affairs of Islamic Republic of Pakistan through fax,
> today.
>
>
>
> 18.               To come up on 15.06.2010.
>
>
>
>          Sd/-
>
>                                          (Ijaz Ahmad Chaudhry)
>
>                                                        Judge
>
> ____________________________________________________________
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-- 
Dr. Hong Xue
Professor of Law
Director of Institute for the Internet Policy & Law (IIPL)
Beijing Normal University
http://www.cdnua.org/
19 Xin Jie Kou Wai Street
Beijing 100875 China
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