Some relief

Published April 10, 2022
The writer is director of Bolo Bhi, an advocacy forum for digital rights.
The writer is director of Bolo Bhi, an advocacy forum for digital rights.

CIVIL society, the media and activists finally let out a sigh of relief when Islamabad High Court Chief Justice Athar Minallah passed the short order in the ‘Pakistan Federal Union of Journalists vs President of Pakistan’ case related to the Prevention of Electronic Crimes Act (Peca) Amendment Ordinance, 2022.

It is a welcome judgement and upholds the right to freedom of speech and information unequivocally. It has come as a surprise to many activists and members of the legal community, who had become used to disappointment in rights-related cases.

First, the court struck down the Peca Amendment Ordinance, 2022, saying it was “promulgated in derogation of the Constitution and the fundamental rights guaranteed thereunder, particularly Articles 9, 14, 19 and 19-A”, that relate to right to life, dignity of man and privacy of the home, freedom of speech, and right to information.

Second, it struck down the part relating to criminal defamation in Peca under Section 20, ruling that “offence under Section 20 of the Prevention of Electronic Crimes Act, 2016 to the extent of the expression ‘or harms the reputation’ and the punishment thereof is unconstitutional, invalid beyond reasonable doubt and is, therefore, struck down”.

The right to freedom of speech has been given a boost by the IHC.

Third, the order asked the federal government to review defamation laws, “particularly the Defamation Ordinance 2002 and thereafter propose appropriate legislation to the Majlis-i-Shoora for making its implementation effective”.

Fourth, the order asked the interior ministry to probe the conduct of FIA’s cybercrime wing officials “which had led to widespread abuse of powers and the consequent grave violations of fundamental rights of the citizens”.

It is a significant ruling in several ways.

The ordinance amending Peca had been condemned unanimously by civil society, media groups, lawyers’ groups, and some political parties. The united front formed by multiple stakeholders, and availing the avenue of justice for rights’ protection through the courts, gives one hope that fundamental rights and democracy can be protected by Pakistanis.

The bypassing of parliament, the clauses that extended criminal defamation to organisations and government institutions, specifically criminalising criticism of public officials, making the crime non-bailable, non-compoundable and cognizable, all reeked of attempts to turn Pakistan into a police state. That the court recognised this and struck down the ordinance can turn many cynics into optimists, especially with the kind of precedent this ruling sets.

The PTI government’s mala fide approach was obvious as the ordinance was brought in insidiously, bypassing parliament, without there having been an emergency — a requirement under Article 89 of the Constitution — and with parliament being in session just two days before.

But the precedent the court set by striking down part of Section 20 of Peca is monumental. In the short order, the court held that “The criminalisation of defamation, protection of individual reputations through arrest and imprisonment and the resultant chilling effect violate the letter of the Constitution and the invalidity thereof is beyond reasonable doubt”. With this, Pakistan joins a growing list of democracies that have decriminalised defamation. For the court to order that criminal defamation violates the Constitution will have significant ramifications on Sections 499 and 500 of the Pakistan Penal Code, that set out the parameters and punishment for criminal defamation.

Whereas it would be preferable to strike down Section 20 in its entirety, what we are left with is “intimidates or harms the privacy of a natural person”, with “harms the reputation” struck down.

It is also significant that this is the first time that Peca 2016 has been amended since its promulgation six years ago, although digital rights and media groups had been making efforts to that end since its inception as a bill in 2015. For PML-N leader Shehbaz Sharif to celebrate this order of the court by saying that last year saw unprecedented curbs on freedom of expression is farcical. The court also struck down part of Peca brought about by the PML-N. It is hoped that whichever party comes to power next will reform Peca further, especially by deleting Section 37, that has become a tool of censorship on the internet and is made more draconian by the social media rules passed by the PTI set-up.

The silver lining of the PTI bringing in the amendment ordinance is that it enabled scrutiny and striking down the criminal defamation provision in the law — it is the first time the courts have ruled on Peca.

This is a major win for the women who spoke up against harassers and were prosecuted, the journalists who were silenced for reporting, the activists who were intimidated for criticising, and all Pakistanis who have the right to express their opinion without facing the threat of going to jail.

The writer is director of Bolo Bhi, an advocacy forum for digital rights.
Twitter: @UsamaKhilji

Published in Dawn, April 10th, 2022

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