Away with the rules

23 May 2020

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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 Citizens Protection (Against Online Harm) Rules, 2020, are back on the agenda. The Pakistan Telecommunications Authority (PTA) recently uploaded a survey titled Consultation Framework, seeking stakeholder input on the rules. This follows the announcement made by the Ministry of Broadcasting on Feb 28, 2020, about the formation of a committee to consult on the rules which was constituted after the prime minister said there would be a “review” — only because there was tremendous criticism locally and internationally, of the rules.

In a statement signed by over 100 organisations and individuals in Pakistan and released on Feb 29, 2020, the consultation process was termed a smokescreen. The statement pointed out that the government refused to clarify the legal status of the rules. After receiving the federal cabinet’s approval which, to date, has not been withdrawn, how meaningful could a review or consultation be and what could it possibly achieve? The signatories said they would not “participate in any process initiated to deflect criticism and seek ... legitimacy to carry forth the implementation of the rules that were devised in bad faith”.

They called on tech companies to state their terms of engagement with the government on the rules, reminding them they would be held to international best practices. The statement called for the rules to be withdrawn by the cabinet. Any discussion, reads the statement, must begin by recognising the overbroad and arbitrary nature of Section 37 and an assessment of the abuse of power under it, reiterating that civil society’s position on Section 37 has consistently been to repeal it.

The rules transgress Peca and infringe on rights.

In the preamble to the survey uploaded by the PTA, the phrase “suspended rules” is used. Legal opinion holds that once the federal cabinet gives its approval, the rules come into effect. The prime minister cannot overrule the cabinet’s decision. For him to announce a review and constitute a committee for this purpose is not something he has the power to do. The prime minister, any ministry or the PTA can neither withdraw nor decide to ‘suspend’ or hold implementation of the rules. That is the function of the federal cabinet. For all practical purposes, the rules are already in effect. What then is the purpose of this consultation and survey if not to legitimise what is otherwise illegal?

Both the process through which the rules have been approved and their content raise concerns — much like their parent legislation, the Prevention of Electronic Crimes Act, 2016. With Peca, no draft prior to its approval by the National Assembly’s standing committee on IT was circulated publicly. In fact, it wasn’t even shared with members of the opposition. After public outrage and objections by members of the opposition, the approved draft was pushed back to the committee for review and discussion.

Similarly, the rules appeared out of nowhere. Knowledge of their existence became public after the draft was found circulating online. Then came official acknowledgment by the secretary IT, owning the draft followed by the revelation that the cabinet had already approved them.

One look at the survey, its leading questions, ‘yes’ and ‘no’ only options with text boxes provided only to qualify one position or the other, should wipe out doubt in anyone’s mind that this is anything but an exercise to extricate answers in support of the rules. Subsidiary legislation such as the rules cannot transgress or go beyond what the parent legislation allows. These rules certainly do.

For instance, the rules create the position of a national coordinator to be notified by the IT ministry and assisted by a committee also notified by the minister for enforcement of the rules. Here, powers under Section 37 are being handed over to a government appointee whereas Section 37 specifically gives charge to the PTA to exercise powers under it. The Islamabad High Court’s order in WP 4994/2014 held that the exercise of powers under Section 37 could not be arbitrary and any decision by the PTA was to be made independently, “uninfluenced by any direction issued by the government”. The rules also require social media companies to establish servers locally and provide “information, data or content” in decrypted format when so directed by the investigation agency. This runs contrary to provisions under Peca, which subject disclosure of content data to warrants issued by court.

The rules transgress Peca, violate court judgements, infringe on fundamental rights and run contrary to international best practices. Anyone committed to transparency and rights should call for the rules to be immediately withdrawn by the cabinet and refrain from participating in a process initiated to ‘legalise’ illegitimate aims and powers. Peca should be proof enough of this.

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

Published in Dawn, May 23rd, 2020