Defamation amendment goes against decisions of courts

Published February 21, 2022
Law Minister Barrister Farogh Naseem addresses a press conference in Karachi on Sunday. — PID
Law Minister Barrister Farogh Naseem addresses a press conference in Karachi on Sunday. — PID

ISLAMABAD: The Prevention of Electronic Crimes (Amendment) Act Ordinance 2022, promulgated by President Arif Alvi, is likely to open floodgates of cases against ‘controversial’ social media content, as it has not only made online defamation a non-bailable, cognisable offence but also broadened the ambit of the Federal Investigation Agency (FIA).

The Pakistan Tehreek-i-Insaf government has promulgated the ordinance at a time when the legality of Peca’s Section 20 that criminalises defamation is already under examination before the Islamabad High Court.

The law has rendered the recent jurisprudence of the superior courts irrelevant that was evolved in the cases registered against journalists and bloggers on the complaints of people other than the aggrieved persons, as the IHC had made it clear that nobody except the ‘aggrieved person’ could file a complaint against defamation, but after the promulgation of the ordinance any person or institution, not necessarily the aggrieved person, could file a defamation case.

While explaining salient features of the amendments to Peca, federal Law Minister Barrister Farogh Naseem forcefully defended the government’s move by highlighting that it gave right to anyone, and not just the aggrieved person, to file a complaint against online defamation. He said it was only aimed at bringing about ‘reforms in the media’, where disinformation had badly damaged social norms and defamed many including the former chief justice of Pakistan and family of Prime Minister Imran Khan.

Definition of ‘person’ who can seek relief being extended to military, judiciary and govt departments

Sources said the Ministry of Interior and the Ministry of Information Technology had forwarded the proposals for amendments to the FIA Act and Peca, 2016, which were merged in the final draft of the Peca ordinance before it was sent to the president last week for promulgation.

Read more: Weaponising Peca

Interestingly, both the proposed amendments were similar as they redefined the nomenclature of the aggrieved person as stated in Section 20, besides enhancing the punishment from three year to five years.

Talking about the amendments, legal experts were of the opinion that Section 20 might also be invoked against electronic media, as the recent case against Jinnah Editor and owner of Online news agency Mohsin Jameel Baig was registered under Peca for passing ‘unpleasant’ remarks against federal minister Murad Saeed in a talk show.

While the IHC had declared that the complainant under the Section 20 would be a natural person, the ordinance has added more categories to it. The ordinance omitted the word natural in the heading of Section 20, which was previously titled “offences against the dignity of natural person”.

Also, an amendment to Section 2 of the amended act said the “person includes any company, association or body of persons whether incorporated or not, institutions, organizations, authority or any other body established by the government.”

Earlier, the interior ministry had sought amendment to the FIA Act suggesting that “legal person including state institutions, public office holders, judiciary and armed forces” were competent to file a complaint against an internet user for uploading defamatory social media content.

The IHC was examining the legality of Section 20 of Peca when the ordinance was promulgated.

During a recent hearing on the social media rules, amicus curiae Advocate Adnan Haider Randhawa submitted before IHC Chief Justice Athar Minallah a report that discussed the constitutionality of the defamation law against social media users under Peca, 2016.

The report stated that Section 20 of Peca that criminalises defamation “violates constitutional rights of freedom of expression and freedom of the press”. It mentioned that Section 20 was “against the fundamental rights”. It also pointed out Section 20 violated the “reasonable restrictions” listed under Article 19 of the Constitution of Pakistan, and suggested that it was fitting to reverse the law.

Through another amendment, online defamation would become non-compoundable offence, meaning that the aggrieved cannot settle the matter out of court despite reaching a compromise with the complainant. Another amendment to Section 44 of Peca sets a six months timeline to dispose of the trial and asks the high court to appoint a judge under Peca.

Published in Dawn, February 21st, 2022

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