Weaponising Peca

Published June 25, 2020
The writer is a journalist and a co-founder of Bolo Bhi, an advocacy forum for digital rights.
The writer is a journalist and a co-founder of Bolo Bhi, an advocacy forum for digital rights.

IN an order announced on June 15, 2020, an additional sessions and district judge directed the Federal Investigation Agency to register a case against Pakistan-based US blogger Cynthia Ritchie. This was in response to a complaint filed by the PPP’s Islamabad president, Shakeel Abbasi, for “defaming” deceased former prime minister Benazir Bhutto. Ritchie appealed the order before the Islamabad High Court. Her application was dismissed by the court on June 22, 2020. Interesting in all this is the FIA’s response to the district court on the applicability of the law and their plea to dismiss Abbasi’s application.

Section 20 of the Prevention of Electronic Crimes Act, 2016, criminalises the act of publicly exhibiting, displaying or transmitting information one knows “to be false, and intimidates or harms the reputation or privacy of a natural person”. During advocacy against Peca, civil society groups opposed this section. They argued this would enable suppression of political speech by initiating criminal cases against citizens and so should be omitted from the law. Parliamentarians observed that by making this a non-cognisable offence requiring the FIA to seek the court’s permission to initiate proceedings and limiting its scope by allowing only an “aggrieved party” to file a complaint, these safeguards would prevent misuse. The application of Section 20 since reveals such on-paper safeguards have amounted to nothing in practice.

With respect to Abbasi’s application, the FIA informed the court that only an “aggrieved party — the targeted victim or their guardian” — could lodge a complaint. Abbasi’s complaint was not in relation to remarks made against him; therefore he had no “locus standi”. The PTA clarified that it was not authorised to take action against an individual as that power resided with the FIA under the law. The position on the law is ironically correct but restraint on the part of both the FIA and PTA, to not act in this case, is unparalleled.

When Maulvi Muhammad Iqbal Haider filed a complaint with the FIA against journalist Shahzeb Jillani, accusing him of making “defamatory remarks against state institutions”, instead of dismissing the application at the verification stage and holding that Haider had no locus standi as he was not the aggrieved party, the FIA registered an FIR, charging Jillani under Section 20 and other sections of the law. It was Jillani’s legal team who argued against the charges which resulted in the case being dismissed by the court.

Maintaining that Haider was not the aggrieved party, the court noted: “the scope of Section 20 Peca is restricted to the natural person ... defined in the Black Law Dictionary as ‘a living human being who is capable of having rights and performing their duties concurrently’.” The definition of a ‘person’ under the Pakistan Penal Code (PPC), which includes companies and organisations, is not applicable under Peca.

Acting unlawfully against citizens has been a consistent pattern.

Acting excessively and unlawfully against Pakistani citizens, especially journalists, is a consistent pattern, beginning as early as 2017 hardly months after Peca was enacted. First the FIA’s counterterrorism wing and then the cybercrime wing issued summons to citizens to appear for questioning in connection with their social media posts about state institutions. Then came FIRs under Section 20. When the FIA’s actions were challenged before the Sindh High Court, the FIA maintained its actions were “in accordance with law”. Under the present government, there have been a spate of cases registered against citizens on the basis of social media posts for “defaming” state institutions, including the prime minister, the chief justice of Pakistan and the army chief.

In these cases, complainants were third parties with no locus standi; remarks pertaining to institutions were included in the charges, while Section 20 requires that the complaint be filed by an aggrieved party and remarks pertain to a “natural person”. Cognisable sections of Peca, the PPC, Telegraph Act, MPO and the Anti-Terrorism Act were added to FIRs to circumvent the need for court permission and to arrest directly. Summons were issued, FIRs lodged and arrests took place without following the law or the process under it. Exceptions aside, neither the courts nor parliament have checked this abuse of power and violation of due process, or probed the contradictory on-record positions adopted by the FIA in different cases.

Precedents set through cases have wider implications on the rights of all citizens. With this case, there is a need to rise above the individuals in question and assess the principle and collective freedoms at stake. Instead of expanding the scope of criminal defamation laws, they should be repealed. They place unreasonable restrictions on speech and have been used to harass citizens and journalists.

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

Published in Dawn, June 25th, 2020

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