A Weapon to Wipe Out the Arts

From the rhetoric and actions of the Punjab Government over the last six months, it would seem obscenity is everywhere. This is surprising, considering it has never been near me, even when I have been looking. Recent newspaper reports have disclosed that the Punjab Government has prepared a draft legislation which will protect innocent audiences from obscenity in public performances and fashion shows. When and if this draft legislation, tentatively titled the Public Performances (Regulation) Act, 2004, takes effect, it shall replace the Dramatic Performances Act, 1876, which archaic legislation currently has the awesome responsibility of protecting our morality against an invisible onslaught of obscenity. However, given that the current legislation confers fairly ample powers to the authorities to enforce official morality, it is difficult to understand why there was a need for new legislation in this area. It is only when one looks at the subtle differences between the current and the proposed legislation, the real purpose of the proposed legislation becomes frighteningly all to clear.

The Dramatic Performances Act, 1876 was brought into force during the Prince of Wales' royal visit to India in 1876 (the Prince was subsequently crowned King George VII). The Colonial Government of the time was embarrassed before their future monarch when a Bengali satire Gojodanondo mocked the Prince by suggesting that he had been staying with a local jamadar and Royal hanger-on, Sri Jagodanondo. When looked at from this historical perspective, the manner in which the Act empowers the Provincial Government to prohibit or regulate public performances makes it clear it was enacted by the Colonial Government of the time with a view to prevent public performances which, by accident or intent, disseminated seditious messages and politically incendiary thought into the minds of an indigenous population just awakening to their Fundamental Right of political participation. However, it is peculiar that this Act - given that its original scope and purpose was controlling political dissent has become a weapon in the Provincial Government's fight against obscenity.

Regardless of the purpose for which the Act was originally designed and for which it is currently being used, it operates by prohibiting public dramatic performance in any local area specified by the Provincial Government unless and until a licence for such a performance has been granted by the Provincial Government or an officer authorized by it (in Lahore's case, the District Coordination Officer). In determining whether the license should be issued or not, the Provincial Government or authorized officer is empowered to inquire as to the nature and contents of the performance. Any person involved in the staging of an unlicensed public performance or a public performance outside the terms of the licence shall be punished by the District Magistrate of that area with a sentence of up to three months, a fine, or both. With this sanction, the Act ensures that all public dramatic performances within specified local area are officially, screened and examined at least once by the Provincial Government or an authorized officer before they are staged. However, the relevant section of the Act giving the Provincial Government or an authorized officer the power to issue performance licences is silent as to the criterion to be applied by the authorities when reviewing a script, lyrics or routine. It is this silence which has enabled the Government to change the ends for which the Act has been used: from stamping out political dissent to imposing its views - whether on morality or anything else - onto the people.

For public dramatic performances outside local areas specified by the Punjab Government, the Act operates in a radically different manner. As the requirement for a licence applies only to public performances in specified local areas, performers outside specified local areas are free to stage public performances and are free from official scrutiny of their scripts, lyrics or routines. Since the Government cannot be said to have official knowledge of the content of public performances, either staged to be staged, in these areas, the Act empowers the Provincial Government or an authorized officer to request information from people involved in staging a public performance. If such information, or information obtained from other sources reveals to the Provincial Government that the public performance staged or to be staged, is ?of a scandalous or defamatory nature, likely to excite feelings of disaffection to the Government established by law in Pakistan, or likely to deprave and corrupt persons present at the performance, the Act empowers the Provincial Government or the District Magistrate of that area to order the prohibition of that public performance. A copy of the order of prohibition (no doubt pointing out the offending portions of a public performance) must be served on anyone involved in the staging of that performance personally or by some manner of proclamation. Where served, the notice of the order of prohibition acts to (i) inform the people involved in the staging of the public performance of the order prohibiting their performance; and (2) allows such people to either (a) modify the content of their performance so that it no longer violates the order of prohibition; or (2) seek legal redress by approaching the relevant judicial authorities. If, after the service of the notice, there is a violation of the order of prohibition, the Act permits the District Magistrate to punish anyone involved in the violation with a sentence of up to three months or a fine or both. And where the District Magistrate is satisfied that a premises is being used to stage a public performance in violation of an order of prohibition, the Act empowers his to authorize the police to enter that premises, take persons into custody and seize any evidence which would be needed for a trial.

There appears to be good reason for the two methods with which the Act regulates public performances. India in 1876 was a large country to govern, and it was next to impossible for District Magistrates to keep an eye on all public performances within their jurisdiction. At the time of its enactment, therefore, the Act ensured that, in areas proximate to the District Magistrate, all producers had to do to stage a public performance was have their scripts or performances vetted by the an authorized officer of the provincial government. Public performance staged without a licence or in breach of the terms of the licence could, by virtue of the venue's proximity, be controlled by the District Magistrate himself. However, if the public performance was in some far off area, the Act left the District Magistrate to his wits and the intelligence of authorized officers within his District to determine if and where any public performances were being staged. It is for this reason that the power to prohibit certain public performances appears applicable only if they are outside a specified local area. Furthermore, it was only when the venue?s proximity made it difficult for the District Magistrate to go himself that the Act contemplated the exercise of the District Magistrate's power to authorize the police to arrest those involved in the public performance and collect evidence from the premises of the production for the trial against them.

I have written and spoken elsewhere about the flaws of the Act. On a strictly techinial legal plane, these flaws include the unfettered discretion conferred onto the Provincial Government or authorized officer to issue or decline licenses for public performances within specified local areas. In other words, for any specified local area, the Act does not elaborate on what objections a producer of a rock concert might come across when he applies for a licence. Furthermore, for the purposes of issuing an order prohibiting a public performance non-specified local area, the Act does not define the terms scandalous, it is unclear as to what is meant by exciting feelings of disaffection towards the Provincial Government, and it provides no clue as to what would deprave and corrupt people. Thus, in a non-specified area, a local NGO staging street theatre performances could find itself on the wrong side of criminal conviction if it gets carried away while highlighting government apathy towards, say, the plight of the people of Gwadar. It is this arbitrariness and lack of certainty which makes the Act a powerful tool of censorship, as it gives to the Provincial Government a host of undisclosed reasons to restrict any public dramatic performance.

The Act, where the powers conferred under it are improperly exercised, can operate to violate the Constitutional rights of performance artists to engage in their trade or profession and, through their trade and profession, exercise their Constitutional right of free expression. It can arguably violate the Constitutionally protected right to assemble of an audience expecting an evening of entertainment (which, in some cases, they pay to witness ? lending some weight to the argument that audiences are aware, by word of mouth or some form of advertising - of the content of a performance). Where tickets for a public performance are sold in advance, the non-issuance of a licence or an order prohibiting the performance can violate the contractual rights of the audience.

In more practical ways, the Act is an inconvenience. Producers must test their patience against the slow wheels of our bureaucracy. A DCO's last minute change in heart denying the issuance of a licence can result in financial loss to production companies or troupes, and can open them to claims and lawsuits for breach of contract, damages and restitution.

Most of the criticisms of the present Act are valid for the proposed legislation. Indeed, the proposed legislation, according to newspaper reports, will predominantly follow the scheme of enforcement laid out by the Act. However, the proposed Public Performances (Regulations) Act, 2004 is different from the present Act in four major ways. Each difference goes a long way towards understanding the motives of the Punjab Government in seeking to enact the proposed legislation.

Firstly, the proposed legislation is wider in scope than the Act. The Act is silent as to who constitute the people who are involved in the staging of a public performance. The proposed legislation, however, makes its terms applicable to, inter alios, artists, actors, musicians or models. The Act also uses general terms over what constitutes a public performance (it applies to any place where the public are admitted on payment of money to watch any play, pantomime and other drama performed in a public place). The proposed legislation, however, seeks to expand the scope of its jurisdiction, and will be applicable to any play, pantomime, concert, fashion show, circus, stage entertainment, theatrical, musical or dance performance in a public place. But while you try and get around the logistics of a seditious pantomime, the inclusion of fashion shows and models into the ambit of the proposed legislation should ring some bells. It was in October of last year that the Prime Minister directed the Ministry of the Interior to issue orders to all hotels and officials to end fashion shows on the grounds that they militate[d] against our national culture and Islamic values. In an article written at the time, I commented that the Ministry of Interior does not have the jurisdiction, as per the Federal Government's Rules of Business, 1973 to issue directions like the Orders to hotels. Obviously, one of the purposes of the proposed legislation is to empower the Punjab Government to do what is so far unable to do: ban fashion shows. Designers, choreographers and models beware,

Secondly, the proposed legislation seeks to bar the jurisdiction of the Civil Courts from hearing any suits or other legal proceedings in relation to actions taken under it. If the proposed legislation is enacted, the effect of this bar will be to prevent anyone who has suffered a loss as a result of the operation of the proposed legislation from obtaining damages for breach of rights or contract. Practically speaking, producers will be unable to recover their lost investment if the order prohibiting their public performance is found to have been incorrectly issued. The Provincial Government will effectively render itself immune from any liability for incorrectly passed orders which result in financial loss to people involved in the staging of a public production. For those who think that the Constitutional jurisdiction of the High Courts may still be available, the proposed legislation renders this course of action ineffective by providing for a process of appeal against orders to be passed under it. The High Courts seldom exercise their Constitutional jurisdiction where an alternate remedy is provided for in a statute. Furthermore, the High Court, in exercise of their Constitutional jurisdiction, do not enforce contracts and do not award damages for their breach.

Thirdly, the proposed legislation has dramatically increases the severity of punishments which can be imposed by a Magistrate. Under the Act, the maximum punishment which can be awarded for violating an order was three months imprisonment with a fine. Under the proposed legislation, a Magistrate will have the powers to imprison a person guilty of violating an order for up to two years along with a fine of up to Rs. 100,000/-. Clearly, the Provincial Government intends to get serious with offenders.

Fourthly, and perhaps most dramatically [no pun intended], the proposed legislation appears to give the power of search and seizure to authorized officers (regardless of whether they are inside or outside a specified local area), and it appears that such officers will be free to exercise this power without a warrant from the District Magistrate. Under the Act, search and seizures may only be conducted by the police on a warrant issued by the District Magistrate. Furthermore, the power of search and seizure under the Act only applies to certain public performances outside a specified local area. This difference in powers between the Act and proposed legislation show most clearly the possible manner in which the powers under the proposed legislation will be applied. In a sentence: The police will have the power to enter into any premises if an unelected bureaucrat believes it is being used for, say, a fashion show; arrest people present as well as the models, choreographers and other people responsible for the show; and confiscate any outfits and other property in order to use them as evidence at a trial. The Colonial Act is tame compared to the Gestapo like powers contemplated under the proposed legislation.

On a more general level, the proposed legislation is a fine example of what is endemic in most of the recent legislation of the Provincial and Federal Government as well as the manner of enforcement of orders banning certain activities. On one pretext or another (usually the national interest, whatever that may be), new legislation is slowly eroding the rights of the citizens of this country. Take, for example, the City District of Lahore's decision to ban kit flying. The main reason for the prohibition seems to be preventing power failures caused by certain kite-string, and so the citizens of the city have been deprived of a cultural activity in favor of electricity to the houses of the rich. Why doesn't the City District Government take action against kite-string manufacturers? And why doesn?t the WAPDA or LESCO take the initiative and invest in underground electricity cables? In our criminal procedure laws, the police are allowed to remand a suspect for up to 14 days without trial (in NAB cases, 90 days). Valuable Constitutional rights are trampled over because the government has not thought it prudent to modernize the police administration and their investigative techniques. A two week remand is unheard of in civilized parts of the world. In the United Kingdom, unless a suspect is involved in a terrorist act, he cannot be remanded for more than 96 hours.

Just like the examples above, the proposed legislation seeks to enforce an official view of morality at the cost of public entertainment. But one man?s gold sofa is another man?s obscenity: without a clear definition of what is or is not obscene, the proposed legislation will serve only as a tool of harassment, and will be used arbitrarily only against a population starved of entertainment. The future does not auger well for the arts and entertainment in Pakistan. The Punjab Government, whatever its intentions, should take stock of the words of Michel de Montaigne:

"The more our moral thoughts are abundant and solid the more engrossing they are and oppressive."