WHETHER THE PROHIBITION OF EXPRESSING MATTERS ON WALLS ACT, 1965 IS UNCONSTITUTIONAL?

Author: Hafeezullah Abbas

Indeed, the Prohibition of Expressing Matters on Walls Act 1965 is unconstitutional, and to backup this claim we rely on two major grounds of submissions:

I. THIS ACT VIOLATES THE FUNDAMENTAL RIGHTS PROVIDED IN THE CONSTITUTION AND ALSO OTHER STATUTE LAWS:

Freedom of expression, being a fundamental right includes ideas or opinions in oral or written form and allows public to express their feelings in any manner possible, and wall chalking or writing on the walls is one of those manners of expression. And if any attempt is made to contravene such right will certainly fall foul on Art. 19 of the constitution. Freedom of expression is protected by courts even in those countries where it is not even a constitutional right in their respective constitutions such as in UK and Australia. The conditions of legality or illegality of the freedom of any expression depends upon the content and idea it carries, the content must be decent, it must not be offending another person’s dignity, hateful or must not be based on any other illegal content, if it does not carries any illegal content it is lawful and fall under the constitution as a fundamental right. In the present case, throughout the facts the content that was being written on the walls by the public was only carryingthe idea of “The Real

Furthermore, there have been very few judgments of our domestic courts on this matter of wall chalking or writing and in those judgments the wall chalking was not supported chalking. But in those cases wall chalking was condemned due to its content, because it was based on extremism, terrorism and hateful message, which is not the situation of our present case. However, the Prohibition of Expressing Matters on Walls Act 1965 does not make this distinction and its wording and terminology is extremely strict and vague that it totally forbids all the expressions or writings and even affixing on the walls regardless of the content of such writing is lawful or unlawful. This makes it also in the direct contravention with the other popular Statute laws, to specify this contention we highlight that in the Land Revenue Actand Code of Criminal Procedure 1898, affixing notice on the wall of private and public places is legitimized, but the wording of Prohibition of Expressing Matters on Walls Act 1965 is so strict totally prohibits the affixing in all situations, and which contradicts these Statute laws. Lastly, we submit that when the government is njust and brutal towards the democracy, public must rarely hide its heart and write their feeling in the walls, the change.

PROHIBITION OF EXPRESSING MATTERS ON WALLS ACT 1965 IS VAGUE AND VOID, PLUS IS IN THE VIOLATION OF FUNDAMENTAL RIGHTS:

As we have already submitted that that the wording of the Prohibition of Expressing Matters on Walls Act 1965 is so strict that it has an overbroad effect of prohibition, forbidding all sorts of expressions and affixing, we further contend that this Act is unconstitutional vague and void on the basis of such over-broadness and because it violates the principles of legality and certainty. On these basis courts have previously declared some certain Acts as unconstitutional such as Hisba Bill and Frontier Crimes Regulations Act. Therefore, It is argued that due to these reasons the Prohibition of Expressing Matters on Walls Act must also be considered unconstitutional in the presentcase. In addition to that, it is an obligation of the authorities to protect the essence and soul of the fundamental rights provided in the constitution. Any law, custom or usage will only be enforced to the extent that they must not be inconsistent with the fundamental rights, and it is the duty of the courts to examine the vires of a legislation at the touch stone of the constitution itself, especially when the question is regarding the protection of fundamental rights. Any law which is in the direct contradiction with the fundamental rights is to be declared null and void. If we specify our contention to the violation of freedom of expression, the Islamabad High Court in a case has already declared some provisions of PECA unconstitutional because they were in direct contravention to the freedom of speech and right to information and gives too much illegitimate power to the electronic telecommunication authority. Similarly, in our scenario the Prohibition of Expressing Matters on Walls Act is also in the violation of the right to freedom of expression of the public of Azores and thus is also void. Lastly we submit that Constitution is the supreme law of the Azores and must prevail and since constitution itself has declared that any law that are in the contradiction with the fundamental rights will be deemed void. Thus it is humbly requested that this Prohibition of Expressing Matters on Walls Act must also be rendered void for the supremacy of the constitution and fundamental rights provided therein.

REFERENCES

• Province of East Pakistan v. Muhammad Mehdi Ali Khan case;
• Supreme Court of Pakistan’s Suo Moto Judgment, Case No. 28 of 2018, 12-9-2018;
• Supreme Court of Pakistan’s Suo Moto Judgment, Case No. 28 of 2018, 12-9-2018;
• Supreme Court of Pakistan’sSuo Moto Order against Talal Chaudhry, 11-7-2018, Crl.Org.P.No.09;
• MujiburRehmanShami v. Federation of Pakistan case;
• Pakistan Electronic Media Regulatory Authority v. Independent Media Corporation (Pvt) Ltd. case;
• Article 19 of the Constitution of Pakistan;
• High Court Bar Association v. Government of Baluchistan case, 2013; TalatWaheed v. Government of Baluchistan, Constitutional Petition No. 572, 2009;
• High Court Bar Association v. Government of Baluchistan case, 2013;
• Section 2 of the Prohibition of Expressing Matters on Walls Act 1965;
• Land Revenue Act, 1967; Code of Criminal Procedure 1898 (CrPC);
• Section 24 of the Land Revenue Act, 1967; Section 71 of the CrPC;
• Section 2 of the Prohibition of Expressing Matters on Walls Act 1965;
• Maneka Gandhi v. Union of India case, 1978;
• Section 2 of the Prohibition of Expressing Matters on Walls Act 1965;
• ShahidOrakzai v. Government of Pakistan case, PLD 2013 Pesh HC 3;
• Supreme Court Advisory Opinion, Reference No. 2 of 2005;
• ShahidOrakzai v. Government of Pakistan case, PLD 2013 Pesh HC 3;
• Article 8 of the Constitution of the Pakistan; PLD 1996 S.C. 324;
• PLD 2013 S.C. 501;
• SCMR 220;
• PLD 2012 S.C. 1;
• Federal Union of Journalists v/s The President of Pakistan case;