December 19th, 2020
The Islamabad High Court (IHC) has directed Pakistan Telecommunication Authority’s (PTA) to hold a meaningful dialogue with all stakeholders over the newly-introduced social media rules in the country.
The court, presided by Chief Justice Athar Minallah, was hearing a petition on Friday in Islamabad filed by the Pakistan Federal Union of Journalists (PFUJ) against the PTA’s newly introduced Removal and Blocking of Unlawful Online Content (Procedure, Oversight and Safeguards) Rules 2020. The PFUJ had challenged the social media rules through the Journalist Defense Committee of the Pakistan Bar Council. Appearing on behalf of PFUJ, Barrister Jahangir Jadoon argued that the social media rules violated the Constitution. “Instead of consulting with the stakeholders, the PTA made the rules and presented them in the court. These rules are unconstitutional and should be repealed immediately,” he maintained.
Deputy Attorney General Syed Tayyab Shah told the court that the Attorney General for Pakistan (AGP) Khalid Javed Khan wanted to appear in person to present his arguments. He requested the court to grant them some time. The court asked Shah who the relevant stakeholders of the social media rules are and whether they were consulted or not before drafting the rules. “This is public interest litigation. Rules have been broadened to such a degree that there is a chance of their misuse even in case of criticism against a government servant. The Article 19 and 19-A of the Constitution cannot be violated,” the judge noted. The court observed that the rules made by the PTA should be sent to all the stakeholders. Send the rules to all stakeholders for a meaningful dialogue, he added. Later, the IHC accepted the deputy attorney general’s request and adjourned the case till January 25.
The Awami Workers Party and a private citizen, Ashfaq Jutt, are also petitioners in the case. They were respectively represented by Advocate Haider Imtiaz and Advocate Osama Khawar. The PTA’s counsel Ahmar Bilal Sufi will present his argument at the next hearing.
The high court raised questions over the government’s new social media rules, observing that criticism was essential for democracy and discouraging it would be detrimental for the country. “Freedom of expression is extremely important. A country where freedom of expression is suppressed remains economically backward. The court has written in an earlier order that there should not even be an impression of a restriction on the freedom of press,” IHC Chief Justice Athar Minallah said during the hearing.
Widespread Criticism Over Social Media Rules
The social media rules have received widespread criticism from journalists, lawyers, rights activists, digital rights activists and social media platforms for undermining freedom of expression and privacy. The social media rules are being seen as a tool for arbitrary and excessive censorship in online spaces and an attempt by the government to stifle criticism and dissent on online platforms. Asia Internet Coalition, a grouping of big technology firms, has expressed concerns that the social media rules go against the internationally-recognised rights to individual expression and privacy.
Freedom of Expression
In its petition, the PFUJ has pleaded that ‘through the Impugned Rules, the respondents (the federal government and the PTA) have embarked on an illegal, unlawful and unconstitutional exercise of interpretation of constitutional provisions, particularly Articles 19 and 19A of the Constitution, which is the sole prerogative of constitutional courts under the doctrine of separation of powers.
Similarly, the PFUJ pleaded that the Rule 4 of the Impugned Rules defines the terms ‘glory of Islam’, ‘integrity, security and defence of Pakistan’, ‘public order’ & ‘decency and morality’ pursuant to its sub-rules (1)(i) to (iv). “These terms are specifically mentioned in Article 19 of the Constitution and Section 37(1) of PECA 2016, however, they are neither defined in the Constitution nor in PECA 2016,” the PFUJ says in the petition. Under sub-rules (1)(i) to (iv), the definitions of the said terms have been tied to offences under the Pakistan Penal Code.
“However, this has been done despite the well settled principle that words used by the legislature in any statute are to be read and understood in their plain and ordinary meaning, unless defined by the legislature itself. If a word is not defined by the legislature in the statute, then its plain and ordinary meaning has to be followed. No different interpretation is permissible,” the PFUJ petition reads.
The PFUJ has asked the court to strike down the social media rules by declaring that the rules are ultra vires in the light of PECA 2016, and inconsistent with and in contravention of Article 4 of the Constitution as well as the Fundamental Rights guaranteed under Articles 9, 10A, 14, 18, 19 and 19A of the Constitution.
This is the second petition that the PFUJ has moved in the court, citing violation of the fundamental right of freedom of expression under Article 19 of the Constitution. The PFUJ and the Human Rights Commission have also challenged the Pakistan Electronic Media Regulatory Authority’s ban on broadcasting speeches by proclaimed offenders and absconders. The IHC is to resume hearing of the petition on December 22.