ISLAMABAD: A tweet of President Arif Alvi announcing convening of a session of the National Assembly on Feb 18 — that was subsequently cancelled hours before the schedule without a notification — was produced as evidence to prove the government’s ‘ill intentions’ to promulgate a controversial ordinance amending the Prevention of Electronic Crimes Act (Peca) 2016 that criminalised defamation and made it a cognisable and non-bailable offence.

Islamabad High Court Chief Justice Athar Minallah resumed on Monday hearing on various petitions filed against the controversial ordinance.

Senior lawyer Munir A. Malik, the counsel for Pakistan Broadcasting Association, in his concluding arguments on a petition filed against promulgation of the ordinance amending Peca, cited a tweet posted from the official Twitter account of the president, dated Feb 14, that a session of the National Assembly will be convened on Feb 18.

The tweet posted from the @PresOfPakistan account stated: “President Dr Arif Alvi has summoned the National Assembly session on Feb 18, Friday at 10:30am. The President has summoned the session under Article 54(1) of the constitution.”

However, the session was later cancelled to pave the way for the president to promulgate the Peca ordinance on Feb 18, the same day the session had been scheduled, the counsel added.

President Alvi had set a precedent by cancelling a scheduled NA session without any official announcement, generating a controversy and a debate among political circles. A source had told Dawn that since the government wanted to promulgate some ordinances (an authority vested in the president), the session had been shelved. The Senate was also not in session at that time, and an ordinance is promulgated by the president when neither house of parliament is in session.

Mr Malik told the court that the amendment to the ordinance curbed freedom of speech, besides adversely affecting the independence of judiciary and judges. The president could promulgate an ordinance in an emergency situation as defined under Article 89 of the Constitution, he added.

The counsel for two factions of the Pakistan Federal Union of Journalists also concluded their arguments and said the Senate session was prorogued on Feb 17 and a scheduled NA session cancelled the next day to promulgate the controversial ordinance to rein in the media, journalists and bloggers.

The law, in its current form, has rendered the jurisprudence of the superior courts irrelevant in the cases registered against journalists and bloggers on the complaints of private individuals instead of the aggrieved persons, as the IHC had made it clear that nobody, except the “aggrieved person”, could file a defamation complaint. But after promulgation of the ordinance, any person or institution, not necessarily the aggrieved person, could file a defamation case.

Advocate Usama Khawar, representing another petitioner, former senator Farhatullah Babar, drew the attention of the court towards the Fourth Amendment made to Article 19 of the Constitution in 1975. The amendment, he said, omitted the word “defamation” from Article 19, which showed the intent of the legislature that defamation itself did not constitute the permissible reasonable restrictions/grounds pertaining to freedom of speech.

The amendment showed that defamation was intentionally removed from Article 19 as being harmful to freedom of speech and expression and thus removed from the list of reasonable restrictions. Any such restriction to freedom of speech, including the impugned Section 20 of Peca 2016, is ultra vires of the Constitution and against the patent intent of the legislature, the petitioner argued.

Further hearing in the case was adjourned till March 21 when the attorney general will present his arguments.

Published in Dawn, March 15th, 2022