Above the law

Published September 27, 2019
The writer is a Karachi-based journalist and a co-founder of Bolo Bhi, an advocacy forum for digital rights.
The writer is a Karachi-based journalist and a co-founder of Bolo Bhi, an advocacy forum for digital rights.

THE Islamabad High Court’s (IHC) recent judgement directs the Pakistan Telecommunications Authority to formulate rules in order to exercise powers under Section 37 of the Prevention of Electronic Crimes Act, 2016 (Peca). The order was passed in WP 634/2019, filed by the Awami Workers Party against the blocking of the party’s website, just before elections 2018, by the PTA.

Read: PTA ordered to frame Peca rules in three months

Section 37 of Peca was one of the most contentious sections during advocacy against the law. It gives the PTA arbitrary powers to interpret and apply the restrictions under Article 19 and block electronic content. While rights groups called for the omission of Section 37 from Peca entirely, others were of the view that with the introduction of Section 37 and the rules prescribed under it, the PTA would be compelled to operate within a framework and this would bring some transparency to the otherwise opaque blocking process. However, three years on, the IHC has had to direct the authority to “fulfil its statutory obligations by prescribing rules”.

Telling is the clear disregard for due process and rights by the PTA. The order notes the response by a PTA official who told the court, “Section 37 of Peca empowers the competent authority to block websites without notice or affording an opportunity of hearing to the person who could be adversely affected by an order or action of the authority”.

Correcting this view, Justice Minallah writes in his order: “This interpretation of Section 37 is in flagrant violation of fundamental rights guaranteed under the Constitution as well as the settled law enunciated by the superior courts. It is noted that the principles of natural justice are required to be read in every statute. Moreover, Article 10-A makes it mandatory to observe the requirements of due process before passing an order or taking any action whereby persons could be adversely affected.”

Like the PTA, the FIA has no inherent power to investigate and prosecute offences under Peca.

The Federal Investigation Agency (FIA) operates no differently. Their excesses are even more dangerous, given they have the power to launch criminal investigations, arrest and seize devices. However, under Peca and its rules issued in 2018 through S.R.O.979(I)2018, certain procedures to exercise these powers have been prescribed. But the FIA flouts them just the same.

The agency’s flawed interpretation with respect to Peca is that it can exercise powers available to it under the FIA Act 1974 to investigate offences under Peca. Like the PTA, FIA has no inherent power to investigate and prosecute offences under Peca. While the PTA derives authority subject to the provisions of Section 37, similarly, the FIA derives powers under Section 29 of Peca which designates it as the investigation agency “under the Act”. This is the operating phrase. The superior courts have held that where there is a conflict between a general law and special law, the latter prevails — in this case Peca. And where there is a conflict between two laws, the statute later in time prevails — Peca again.

The FIA routinely launches investigations into non-cognisable offences without first seeking the competent court’s permission as required by Rule 7(5). It has been issuing vague summons and ordering attendance of citizens at its office without providing a copy of the complaint or description of charge. The FIA is known to seize devices whether by conducting raids on premises or when citizens appear at their office, even though Section 33 requires them to first obtain a warrant from court. These are flagrant violations of procedures under Peca, its rules and also Articles 4, 10-A and 14 of the Constitution.

Section 24-A of the General Clauses Act 1897 is applicable to all public officers, which requires them to act “reasonably, fairly, justly”. Moreover, 24(2) requires them to give reasons for passing an order and provide a copy of the order to the person affected by it. If ignorance of the law is not an excuse for citizens, public officers are subject to a far higher standard. Three years is enough time to gain familiarity with Peca and its procedures. Ignorance — whether genuine or feigned — is no excuse for blatant violations of procedures and rights. Clearly, the PTA and FIA consider themselves to be above the law. But why wouldn’t they if they are allowed a free hand without any check internally or by parliament or the courts?

Section 53 of Peca requires biannual reports to be submitted to parliament by the FIA. To date, only one report — that too in-camera — has been submitted. Why hasn’t parliament questioned the FIA over this? Both the PTA and FIA regularly appear before parliamentary committees — the FIA often to present a case for acquiring more powers. There is enough documented evidence of the FIA and PTA’s excesses. On numerous occasions, these have been presented to parliamentary committees and courts through cases brought before them. Credit must be given to both the National Assembly and Senate’s Committees on Human Rights, for taking up the issue of excesses when their attention was drawn towards it. But what of the other committees? And parliament in general?

As far as courts are concerned, why does the burden fall upon aggrieved parties to acquaint them with the law? And why is it that adverse decisions against citizens are taken, sometimes without hearing them at all, whereas when excesses against the FIA are brought to court, care is taken to issue notices, hear them out and wait for their response — even if it takes weeks and months — before granting any relief to those aggrieved by their excesses, if at all?

Courts must check the practice of the FIA in cases brought before them. And parliament must summon reports and ensure effective oversight. The excesses point to a systemic issue which requires an immediate response. It is imperative to hold both the PTA and FIA accountable and subject Peca as a whole to scrutiny — while ensuring more regressive and overbroad powers are not awarded in this process.

The writer is a Karachi-based journalist and a co-founder of Bolo Bhi, an advocacy forum for digital rights.

Published in Dawn, September 27th, 2019

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