February 23rd, 2022
By Rehan Piracha
The Islamabad High Court on Wednesday barred Federal Investigation Agency from making arrests under Section 20 of the Pakistan Electronic Crimes Act Ordinance, summoning the Attorney General on Thursday to assist the court on a petition challenging the presidential legislation.
Meanwhile, Federal Minister for Information Technology Amin-ul-Haq has demanded the federal government withdraw the controversial ordinance, signally an apparent split in the ruling coalition. In a letter to Prime Minister Imran Khan, Amin-ul-Haq, a member of the Muttahida Qaumi Movement, said he did not agree with the amendments in the ordinance as relevant stakeholders were not consulted over it.
Chief Justice Athar Minallah gave the directions while hearing the petition filed by the Pakistan Federal Union of Journalists-Rana Azeem faction against the promulgation of the PECA Amendment Ordinance. Under Section 20, the federal government had enhanced the sentence for the criminal definition to five years as well as made it a non-bailable offense through the ordinance.
During the hearing, Chief Justice Athar Minallah remarked that even states like Zimbabwe, Uganda, and Congo were decriminalizing the offense of defamation. The African states that the chief justice referred to in the hearing are considered to be authoritarian regimes.
Adil Aziz Qazi, the petitioner’s counsel, pleaded that the promulgation of the PECA Ordinance was based on malice and required conditions have not been met by the government. The Senate remained in session till 17th February and the ordinance was published only two days after the said session expired, he said.
The session of the National Assembly was scheduled for 18th February which was called off at the eleventh hour deliberately to have the ordinance promulgated, the PFUJ counsel said.
Chief Justice Athar Minallah inquired from the counsel about what sections of the cybercrime law were amended in the ordinance. The counsel said Section 20 was amended while a new section was incorporated into the cybercrime law. The chief justice inquired about the amendment made in Section 20 of PECA. The counsel replied that the sentence for criminal defamation has been raised from three years to five years through the amendment.
Upon this, the chief justice remarked that there should be no criminal defamation for public figures. “In our opinion, any person who call himself a public figure should not be worried by criticism,” remarked Chief Justice Athar Minallah.
The court said that the FIA had already submitted standard operating procedures relating to investigations and arrests under the cybercrime law. The chief justice barred the federal agency from making arrests under Section 20 of the PECA Ordinance.
Chief Justice Athar Minallah observed that the FIA director general and the federal interior secretary would be held responsible if the federal agency officials did not follow the SOPs submitted to the court. The court adjourned the hearing till February 24 (Thursday).
PM informed about media concerns: AG
Speaking to the BBC, Attorney General Khalid Javed said that he had briefed Prime Minister Imran Khan during a recent meeting about the media’s concerns over the amendments to the PECA Act.
The attorney general said media persons had expressed fears that they would face action for any news given against the government. Khalid Javed Khan said that he had informed the Prime Minister during the meeting that there was a general perception in the society that if the ordinance was implemented in its present form, it would have a negative impact on the government.
He said that the Prime Minister had agreed to his above observations saying that the government needed to clarify that any news or analysis which criticised the performance of the government would not face arrests under the PECA amendments.
The attorney general said the prime minister had assured him during the meeting that the law would not be misused. He said that he would inform the Islamabad High Court about the details when he appears before the court on February 24.
What was the petitioner’s stance?
The petitioner stated that journalists were illegally arrested under the same offense which the government had amended through the ordinance to make it harsh.
The petitioner pleaded that the term natural person has been omitted by the government in an illegal and unlawful manner, by the addition of institutions and associations or corporate person in the cybercrime law. The respondents have tried to criminalize the civil wrong already defined and available under the law.
“That the removal of Proviso in Section 20 of the Act clearly indicates that the Government intends to muzzle the media for which a law and regulatory body (PEMRA) is in place,” reads the petition. The weaponization of the section against print, electronic and social media is against the constitutional rights of freedom of expression as provided under Article 19 of the Constitution, the petitioner said.
The petitioner said the PECA Ordinance has impacted upon freedom of the judiciary in the country. “That the insertion of section 44-A in the Act by the ordinance, goes against the constitutional freedom of the Judiciary, the respondents have intended to harass and coerce the Judicial officers at will by imposing such restrictions over the Presiding officers of the court,” reads the petition.
“That the court cannot be dictated by the legislature to report in such and such manner to the secretary ministry of law and by doing so the independence of the Judiciary is being undermined by the respondents,” the petitioner said.
The apex courts have issued precedents through numerous judgments for the Governments to exercise restraint in matters of judicial functioning but the government did not consider these judgments before the promulgation of the impugned ordinance.
The petitioner pleaded that the government sought to browbeat opponents and curb freedom of expression through the ordinance. “Killing free speech in the country is tantamount to sabotage the democracy in the country, it is ironic that the government is moving towards criminalization of the free speech at a time when the entire world is moving towards decriminalizing defamation,” the petition stated.
The ordinance promulgated without consultation: IT minister
“If the opinions of journalistic organizations, human rights organizations, and experts had been sought, better amendments could have been made,” Haq said in his letter to the prime minister.
The letter states the entire media community has serious concerns about the PECA Amendment Ordinance. The media organizations and the journalistic community have strongly condemned the ordinance following its announcement, Haq said.
“The media is the fourth pillar of democracy and every government has an intimate relationship with the media,” he said. Only through the media can the government present its image to the public, Haq said.
Media organizations and journalists have announced that they will challenge the amendments at every forum. “Therefore, I urge you to listen to the unanimous voices of those protesting against the PECA Ordinance and begin a consultative process with civil society and media organizations, because only through dialogue and consultation can the government and those working in the media devise a mechanism to deal with fake news,” Haq said in his letter. “I urge you to start the consultation process and withdraw this ordinance as soon as possible,” the IT minister said in his letter.
The debate should be on misuse not on the law itself: Fawad
In a tweet on February 23, Federal Minister for Information and Broadcasting Chaudhry Fawad Hussain said there should be a debate on preventing misuse of the criminal defamation law instead of opposing its existence.
“Defamation was dealt under the civil law but false accusation and ridicule were well-defined Islamic laws with strict recommended penalties for the violators,” he said. Referring to the Surah Al-Nissa (The Women Chapter) of the Holy Quran, the minister said leveling false accusations against women had a penalty and there was no justification to say the criminal law was inappropriate, the Associated Press of Pakistan reported.