March 10th, 2022
By Rehan Piracha
The federal government has decided to consult all stakeholders including media associations over the PECA Ordinance, Attorney General Khalid Javed Khan told the Islamabad High Court on Thursday.
The court was hearing petitions by several media associations challenging Pakistan Electronic Crime Act Amendment (PECA) Ordinance. The amendments in the cybercrime law has made defamation of persons and institutions a non-bailable offence carrying a maximum sentence of five years. In their petitions, the media associations said the PECA Ordinance was brought to curtailed freedom of expression and press freedom in the country.
The federal government has suspended implementation of Section 20 relating to criminal defamation under PECA Ordinance, the AG said.
A bench, headed by Chief Justice Athar Minallah, is hearing several petitions against the cybercrime law and abuse of powers by the Federal Investigation Agency.
Chief Justice Minallah observed that all video bloggers and elected representatives would end up in jail if defamation was made a criminal offence under PECA Ordinance.
The attorney general said the federal government has decided to consult all stakeholders on the PECA Ordinance.
Briefing the court on various sections of the ordinance, the attorney general conceded that he was not in position to defend the amended Section 20 relating to criminal defamation of natural persons and institutions under the ordinance.
The AG said he came to know about the misuse of law after the ordinance was promulgated. He said the amendment removed the word of natural person to allow institutions to become complainants under the cybercrime law. The AG said in his opinion the amendment was not sustainable.
The AG said there was no need to provide protection to institutions against defamation through criminal law. He said the prime minister had been informed that the amendment relating to the definition of a natural person was not maintainable.
The AG also conceded that there was no need to regulate media, television channels and newspapers through the cybercrime law.
The AG said the prime minister believed in the freedom of expression and freedom of the press.
Informed about the amended Section 20 of the PECA Ordinance, the AG said the prime minister had himself asked him how has it come about.
The AG said he told the prime minister that it was their fault.
He said the amendment of proviso related to the media was not sustainable as well.
Even if defamation is included in criminal law, it does not apply to public office holders: Chief Justice
The prime minister agreed with his suggestion on the cybercrime law, the attorney general told the court. However, the AG said the ordinance contained certain things that could not be removed. The AG said he had opposed capital punishment but changed his stance upon seeing certain cases.
The attorney general requested the court to refer the ordinance to the federal cabinet for reconsideration. He said the government would establish a commission that would recommend proceedings under the cybercrime law. The AG suggested that a representative for the natural person would be allowed to file complaints under the law. He cited that in case of a veiled woman, her representative would be allowed to file a complaint.
The AG said the government would also take the Pakistan Federal Union of Journalists, Council of Pakistani News Editors and all other stakeholders on board. He said the court had already ordered that no case would be processed under the amended ordinance. The AG held out that assurance that he would not defend the case if what he has suggested to the court was not implemented.
One of the petitioners, Nasir Zaidi, secretary-general of PFUJ, also addressed the court about the government’s attempt to restrict freedom of expression through the ordinance.
Zaidi said he was attending a consultative meeting with government officials when they came to know that the ordinance has been promulgated. He said the government issued the ordinance in spite of ongoing consultations with media associations.
Zaidi said the government wanted to restrict freedom of expression in any case. He said certain government circles do not give importance to the attorney general.
Chief Justice Athar Minallah said the prime minister had given a mandate to the AG who should continue with his efforts, adding that petitions against the PECA Ordinance could be kept pending meanwhile.
Mohsin Baig case
Hearing case of misuse of FIA powers in the arrest of media owner Mohsin Baig, Chief Justice Athar Minallah observed that even if the defamation was included in the criminal law, it did not apply to public officeholders.
The FIA director told the court that 239,000 complaints were registered in three years, with 94,000 complaints under section 20.
The Chief Justice inquired as to how many persons were arrested under section 20? The FIA director said that no arrest was made under section 20.
The Chief Justice asked the FIA director to read the first investigation report in the Mohsin Baig case. The FIA director said that if other sections were added to Section 20 in the FIR an arrest could be made. The court asked whether what Baig had said merited arrest. On which the director of FIA said that the accused has also done programs on YouTube.
The chief justice said that the FIR was not related to other programmes, adding that the book might have written good things about the minister. The court said the FIA assumed that something was written wrong in the book and without inquiry arrested the accused on the same day. The chief justice also inquired from the FIA official whether he had done the analysis before the complaint was filed.
The court questioned the FIA official whether Section 21D of PECA was applicable in the case.
Taking a stand in the court, the Attorney General said that the matter was pending in a trial court so he should be not asked to express his opinion on the issue.
Advocate General Niazullah Niazi said that the case could be heard by the trial court. On this, the Chief Justice observed that the matter was still before the court as the accused had filed an application for cancellation of the case.
The AG insisted that the PECA Ordinance was a bigger issue that he had come to the court to assist with.
The chief justice said the AG should look into all the cases of how the FIA was abusing its powers.
The chief justice remarked that even if the defamation was included in the criminal law, it did not apply to public officeholders.
Justice Athar Minallah observed why anyone was worried about social media, adding that the issue would end if the political parties decided to refrain their fans from insults on social media. The chief justice observed that he did not care what was said about him on social media.He remarked that court decisions were more important to him.