8th April 2022
By Rehan Piracha
The Islamabad High Court on Friday struck down the controversial the Prevention of Electronic Crimes (PECA) (Amendment) Ordinance declaring its promulgation as unconstitutional.
Announcing a four-page short order on the petition by Pakistan Federal Union of Journalists, Chief Justice Athar Minallah said ‘freedom of expression is a fundamental right and it reinforces all other rights guaranteed under the Constitution’.
“Free speech protected under Article 19 and the right to receive information under Article 19-A of the Constitution are essential for development, progress and prosperity of a society and suppression thereof is unconstitutional and contrary to the democratic values,” Chief Justice Minallah wrote in his order.
The PFUJ’s petition said that the word ‘natural’ had been omitted from Section 20 in an ‘illegal and unlawful manner’. At the same time, by adding institutions, associations, and corporate persons to the law, the respondents tried to ‘criminalise the civil wrong already defined and available under the law’.”
“The weaponisation 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 PFUJ stated in the petition.
PECA Ordinance caused chilling effect: IHC
The chief justice noted that the criminalisation of defamation through arrest and imprisonment has resultantly caused a chilling effect on society.
“The criminalization of defamation, protection of individual reputations through arrest and imprisonment and the resultant chilling effect violates the letter of the Constitution and the invalidity thereof is beyond reasonable doubt,” reads the short order.
Chief Justice Athar Minallah said the PECA Ordinance was promulgated in derogation of the Constitution and the fundamental rights guaranteed thereunder, particularly Articles 9, 14, 19 and 19-A of the Constitution.
Agreeing with the petitioner’s contention that there was no “emergency situation” that called for issuing an ordinance of this nature, the court said the jurisdictional preconditions for promulgation of an ordinance were also not in existence.
The court declared the PECA Ordinance’s promulgation as unconstitutional and invalid beyond reasonable doubt, striking down the controversial legislation.
Cases under Section 20 of PECA quashed
The court also declared a portion of the offence of Section 20 under Prevention of Electronic Crimes Act relating to harming of reputation of a natural person as unconstitutional, striking down the sentence of three years imprisonment. “The offence under section 20 of the Prevention of Electronic Crimes Act, 2016 to the extent of the expression “or harms the reputation” and the punishment thereof is unconstitutional, invalid beyond reasonable doubt and is, therefore, struck down,” reads the short order.
Consequently, the court quashed proceedings against petitioners and connected petitions under Section 20 of PECA. However, the court allowed the aggrieved complainants to avail the remedies provided under the respective laws in the context of defamation.
Probe ordered against FIA’s Cyber Crime Wing officials
The chief justice also ordered the interior ministry to launch an investigation into abuse of powers by the officials of the Cyber Crime Wing of Federal Investigation Agency. “The Secretary, Ministry of Interior, Government of Pakistan shall probe into the conduct of officials of the Cyber Crime Wing of Federal Investigation Agency, which had led to widespread abuse of powers and the consequent grave violations of fundamental rights of the citizens.”
The court ordered the interior secretary to conduct the probe within thirty days and inform the registrar regarding action taken against the delinquent officials.