ISLAMABAD: Islamabad High Court Chief Justice Athar Minallah on Friday questioned the framing of rules for social media and observed that such rules would discourage criticism and adversely affect accountability in the country.

Taking up a petition filed against the ban on video-sharing social networking service TikTok, the IHC chief justice asked how rules for social media were framed and which authority enforced them.

He observed that even judicial orders of the superior courts were subject to criticism; however, it should not have an impact on the right to fair trial. He asked the Pakistan Telecommunication Authority (PTA) to review the rules in the light of objections raised by the Pakistan Bar Council (PBC).

“Social media rules framed by PTA are prima facie not in consonance with Articles 19 and 19A of the Constitution. The best manner to ensure accountability in a democracy is to let people have access to information,” he observed.

Advises PTA not to follow countries like India where fundamental rights and freedom are being restricted

Justice Minallah said: “Criticism is very important for democracy. Let the people have information and let them judge the government. PTA is discouraging accountability. PTA should encourage accountability by facilitating access to information. When even the courts and judges are not immune from constructive criticism, how can government be shielded from criticism?”

PBC vice chairman Abid Saqi, amicus curiae in the case, said: “The CJ has rightly observed that the best manner to ensure accountability in a democracy is to let the people have access to information. In my opinion, access to information is a sine qua non for meaningfully exercising the other democratic rights, like elections of a democratic government, voting, etc.”

An amicus brief submitted by Mr Saqi was discussed at length in the court. The court appreciated the brief and directed the PTA to take into account the reservations expressed by the PBC, an apex body of lawyers which is by law required to promote the rule of law and work for protection and promotion of fundamental rights.

The IHC emphasised the need for a meaningful consultation before notifying rules which complied with Articles 19 and 19A of the Constitution. It observed that the meaningful consultation would entail sharing a draft of the rules before finalising them, not just writing generic letters inviting consultation.

The court expressed displeasure over not sharing of the draft of the rules by the PTA with the relevant stakeholders, especially the PBC.

When the PTA tried to justify the rules by pointing out that in India such restrictions on freedom of speech and information were also allowed, the court advised the regulator not to follow those counties where fundamental rights and freedom were being restricted.

In the TikTok case, the petitioner had raised broader issues concerning misuse of the Prevention of Electronic Crimes Act by the PTA, unbridled discretion of the regulator, lack of existence of proportionality test, lack of competency of the PTA to determine vague terms like indecency/immorality, non-framing of rules, etc.

When the PTA informed the court that it had already issued a corrigendum and amended the said rules, Chief Justice Minallah said it did not matter and berated the regulator for framing such rules in the first instance.

Further hearing was adjourned till Dec 18.

Published in Dawn, December 5th, 2020

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