DESPITE the 50 or so amendments made by the Senate, the Prevention of Electronic Crimes Bill (PECB), which had earlier been adopted by the National Assembly, remains a very controversial piece of legislation.
The Senate subcommittee did allow civil society organisations to challenge the provisions of the bill that hit the right to freedom of expression or denied users of cyberspace the protection of due process, but many of their suggestions were not considered worthy of acceptance. When the bill, as approved by the IT committee, came before the Senate the pressure to save it from lapsing prevented the Senate from meeting all the objections to the text. However, a couple of senators were able to soften some of the harsh proposals.
For instance, an amendment to the consistently and most vigorously denounced Section 34 of the bill has now provided for a right to appeal to the High Court, if the authority responsible for administering the law fails to give relief to the party affected on its review plea. But that raises the question as to why could judicial oversight not be prescribed in case of extraordinary powers granted to the relevant authority vide other sections? Recognition of the right to approach the High Court against all orders of the authority that impinged upon basic rights would have been in order.
Also welcome is the amendment which obliges the relevant authority to file six-monthly reports to both houses of parliament, though it is difficult to appreciate the conditions the concession to the legislature has been hedged with — the relevant committee will consider these reports in camera, “without disclosing identity information, as prescribed under this Act.”
Engagement over the PECB has been a harrowing experience for civil society organisations.
The Senate has, surprisingly, not accepted the plea that the cybercrime law should not address offences covered by laws already in force. For instance, Section 18 of the bill is about defamation, an offence that is more than adequately covered by the Pakistan Penal Code and the Defamation Act of 2002. The request to delete the section was not accepted.
Section 22 (Spamming) criminalises what are generally considered merely irritating messages and which can be dealt with tools available in mobile phones and email inboxes.
Section 29 of the bill was objected to on the grounds that retention of traffic data for one year, without any determination of its protection, usage and eventual destruction, could lead to the invasion of citizens’ privacy. The call for bringing the provision in line with international standards was ignored.
Similarly, civil society representatives had pointed out that Section 32 gave extraordinary powers to the investigating officer and it was necessary to include safeguards against the abuse of this power. This plea was not heeded.
No attention seems to have been paid to civil society representatives’ plea that the authority, to be set up or designated under the new law, should be independent of the executive. The authority has been given sweeping powers to order the blocking and destruction of material about which it has received a complaint. While the temporary blocking of data may be understandable in certain situations, its destruction without a court order or without giving the party concerned a chance to be heard is quite unacceptable.
The situation is similar to that of the Pakistan Electronic Media Regulatory Authority (Pemra), whose extraordinary powers to control media content have been under attack for quite some time. The executive’s stranglehold over Pemra can be gauged from the provision in the law that obliges Pemra to follow whatever instructions it receives from the government. In view of this, the recommendation of the 2013 media commission, set up by the Supreme Court, that Pemra must be made independent of the executive is considered unexceptionable by most of the stakeholders. For the same reason, the authority under the cybercrime legislation must be independent of government control.
It might be argued that in many developed countries government agencies carry out media/trade regulatory functions. In view of the trust deficit borne by government agencies in Pakistan, they cannot be accepted as reliable guardians of people’s rights or even of being capable of resisting the government’s whim and caprice.
Their engagement with government representatives and parliamentarians over PECB has been a most harrowing experience for civil society organisations. They entered into discussions with the authorities because they thought, that in a democratic dispensation, the state has an obligation to respect the people’s views and meet their concerns in a fair manner. These assumptions have proved to be invalid in the present situation in Pakistan.
The parliamentarians rightly earned considerable goodwill by listening to civil society’s points of view to an extent unprecedented in the annals of law-making in this country. In the end, however, it was apparently impossible to overrule the privileged authors of the bill. It is possible that a lack of understanding of the many dimensions of cyberspace and its constructive uses prevented lawmakers from effectively grappling with the draftsmen’s determination to find some cause to punish users of the new medium.
The whole affair has revealed fault lines that should cause a great deal of anxiety to the people. Pakistan’s lack of expertise in preparing and assessing legislative proposals, which would maintain a balance between the state’s thirst for absolute powers and the citizens’ inviolable rights, is bound to undermine progress towards an equitable rule of law. Not only that, the degree of censorship planned under the PECB and the climate of self-censorship it will create, to which the UN special rapporteur on the freedom of expression has referred, will adversely affect the people’s life, their capacity to develop their thought processes, and find solutions to the crises that are already visible on the horizon.
Published in Dawn, August 4th, 2016