Law on electronic crimes cannot override Constitution, observes SC

Published September 14, 2021
A file photo of the Supreme Court of Pakistan in Islamabad. — AFP/File
A file photo of the Supreme Court of Pakistan in Islamabad. — AFP/File

ISLAMABAD: The Supreme Court said on Monday that provisions of the Prevention of Electronic Crimes Act (Peca) cannot regulate or curtail fundamental rights like the freedoms of expression and the press since they were enshrined in the Constitution.

The real question is how do laws like Peca or the Pakistan Penal Code (PPC) interact with Article 19 of the Constitution, which guarantees freedoms of the press and expression, wondered Justice Muneeb Akhtar while pointing towards Sanaullah Abbasi, the Director General of the Federal Investigation Agency (FIA).

The FIA did its entire work upside down by exercising its authority under Peca, Justice Akhtar said, reminding the agency the purpose of the act was not to regulate freedom of the press. He observed the FIA appeared to have failed to grasp its duties.

Headed by Justice Ijaz-ul-Ahsan, a three-judge Supreme Court bench had taken up suo motu a case of harassment of a journalist brought by the Press Association of the Supreme Court (PAS).

The court said it must be examined whether Section 27 of the Pakistan Electronic Media Regulatory Authority (Pemra) Act was inconsistent with Article 19 of the Constitution or not. It hinted at naming an amicus curiae to assist it in determining whether the provision empowered the authority to restrain the media from broadcasting a certain news item.

Justice Akhtar had a word of censure for parliament as well, observing that it had simply done a cut and paste job in drafting Section 27 of the Pemra Act. The regulator had left it to the sweet will of the authorities on how to exercise their powers under the act, he said.

“Whether you like it or hate it, if a discourse is protected under the freedom of expression or the press, you have to live with it,” Justice Akhtar emphasised.

“Abuse of authority is a major threat,” observed Justice Ahsan, adding that the authorities did not enjoy any carte blanche powers.

The court made it clear that it was not concerned with individual instances, but wanted to set a benchmark for investigators in future.

The FIA must do away with “the slipshod manner” in which it takes actions against journalists, the bench said.

The FIA chief told the court that over the last four years, seven cases had been registered against the media. Of these, four were converted to the FIR stage and investigations were in progress.

Justice Qazi Amin Ahmed highlighted the need for protecting individuals from slander through cybercrimes.

Justice Ahsan said the Supreme Court would jealously guard freedom of the press, but at the same time it wanted to protect individuals since there was no such thing as unbridled freedom.

Justice Muneeb Akhtar asked Attorney General Khalid Jawed Khan to read Article 14 of the Constitution, which protects the dignity of man and the privacy of home.

Published in Dawn, September 14th, 2021

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