LAW: A TRIUMPH FOR FREEDOM

Published April 17, 2022
Journalists hold a protest against the Peca Ordinance in Islamabad, 2016
Journalists hold a protest against the Peca Ordinance in Islamabad, 2016

On April 8, in a historic order, the Islamabad High Court struck down the draconian Prevention of Electronic Crimes Act (Peca) Amendment Ordinance 2022, introduced by the Pakistan Tehreek-i-Insaf (PTI) government, and also the criminal defamation part of Section 20 of the Prevention of Electronic Crimes Act 2016 passed by the Pakistan Muslim League-Nawaz (PML-N) government.

Having known and worked with several people who have had to suffer due to Section 20 of Peca, I got several messages asking “what does this mean for my case?”, with some cautious excitement.

It has significant ramifications for the right to freedom of speech in Pakistan. But to understand them, it is important to explore the background of Peca’s Section 20 and the short-lived Amendment Ordinance, whom it impacted the most and what this means for the future of freedom of speech in Pakistan.

Section 20 of Peca was brought in by the last PML-N government in 2016 and championed as a clause that would protect women who are slandered online. Several conversations with politicians revealed that they wanted this clause to prosecute slander against themselves and their families as well. Civil society, media groups and human rights activists had warned that such a clause would allow plenty of room for abuse.

The Islamabad High Court has struck down provisions of the Prevention of Electronic Crimes Act that not only criminalised defamation and expanded the scope of defamation, but made it easier for the accused to silence their accusers. Can legislators learn a lesson or two from this?

What activists did not realise then, as per digital rights activist Farieha Aziz’s report for the Human Rights Commission of Pakistan (HRCP) — titled Rethinking the Prevention of Electronic Crimes Act: How cybercrime laws are weaponised against women — was how Section 20 would become the go-to tool for alleged harassers to silence survivors who speak up about their experience of harassment on social media.

Not only that, but in the high-profile case of singer Ali Zafar against singer Meesha Shafi who accused him of sexual harassment, Zafar even filed a Section 20 case against women and men who spoke up in support of Shafi. They had to go to court every month, travelling to Lahore from different cities, often to find hearings adjourned. Considering that it was a criminal complaint, their absence would attract arrest warrants.

The amount of torture and further traumatisation this clause has caused to innocent citizens is unimaginable. What justice can well-meaning people speaking in support of survivors of harassment and the survivors themselves expect from a system where they are threatened with arrests for simply speaking about their experience or validating another’s?

Section 20 was also used against journalists for reporting or commenting on issues considered sensitive — largely related to the military and a few regarding members of the former PTI-led government. According to the Freedom Network report Criminalising Online Dissent Through Legal Victimisation, 23 cases were booked against journalists under Peca — a majority of them being under Section 20.

Some cases were for harming the reputation of the military or judiciary which did not hold because the section specifically mentions “natural person”. However, such cases were booked by the Federal Investigation Agency (FIA), and several journalists were detained under this law.

In media practitioner Mohsin Baig’s case, for instance, his house was raided by armed men in plainclothes, later joined by uniformed police officials, only half an hour after a complaint was filed by then federal minister Murad Saeed against Baig for comments during a TV show the previous day.

This is why the PTI-led government introduced the Peca Amendment Ordinance, whereby the “natural” bit from person was removed and the law was extended to organisations and institutions. This was after failed attempts in the Parliament to criminalise criticism of the military by amending Section 500 of the Pakistan Penal Code (PPC), 1886.

The amendment also got rid of the requirement of the complainant having to be the aggrieved party, and added protection to public officials’ “reputation”. The ordinance also made arresting and detaining the accused much easier. All of this was intended to silence criticism of state institutions and officials — something that Pakistanis, as voting and taxpaying citizens, are entitled to as per the fundamental rights outlined in the Constitution of Pakistan.

Imagine if the draconian ordinance amending Peca had not been struck down by the court; PTI would find itself embroiled in thousands of cases and arrests by the FIA. It is due to civil society action petitions that the ordinance was quashed.

Criticising the notion of criminal defamation, Islamabad High Court Chief Justice Athar Minallah held that “the criminalisation of defamation, protection of individual reputations through arrest and imprisonment and the resultant chilling effect” was inconsistent with the Constitution. He further held that the “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.”

Left: Police officers escort Mohsin Baig on his way to a court appearance in the case filed against him by PTI MNA Mohsin Saeed (right)
Left: Police officers escort Mohsin Baig on his way to a court appearance in the case filed against him by PTI MNA Mohsin Saeed (right)

Through these words, Justice Athar Minallah effectively decriminalised defamation, at least on the internet in Pakistan. Holding criminal defamation unconstitutional will have an impact on section 499 and 500 of the PPC as well. The court has also ordered the federal government to review other defamation laws, particularly the Defamation Ordinance 2002, which is a civil law. In several defamation cases, both the civil and criminal options are used to exert pressure.

Further, the Islamabad High Court order held that the FIA — the designated investigation agency for cases under Peca — has to be investigated for its “widespread abuse of powers and the consequent grave violations of fundamental rights of the citizens.” These are well documented.

In Aziz’s report for the HRCP, the ordeal women and other complainants have had to face is haunting: lost files, notices and summons with insufficient information, the unprofessional and intimidating attitude of officers, the lack of female officers to facilitate women in sensitive cases, a lack of adequate forensic investigation capabilities and a lax attitude at the courts are all too common.

The FIA has also not been submitting its biannual reports to the parliament — something it is required to under Peca, for parliamentary oversight.

Now that the court has struck down the Peca Amendment Ordinance as well as the criminal defamation part of Section 20 of Peca, there are two important lessons for political parties in this experience.

First, political parties must realise that, no matter how tempting it is to bring in laws to prosecute opponents, these will inadvertently be used against themselves once they lose power. This was the experience of PML-N towards the end of its last tenure, and the PTI has already started bearing the brunt of extra-legal “investigations” for its social media activity post the no-confidence vote against Imran Khan and resignations from the National Assembly.

Imagine if the draconian ordinance amending Peca had not been struck down by the court; PTI would find itself embroiled in thousands of cases and arrests by the FIA. It is due to civil society action petitions that the ordinance was quashed.

Second, the practice of bulldozing laws through parliament or outside it has to end. Whether it was the PML-N with its majority in parliament when it passed Peca, or the PTI that tried to amend it through an ordinance bypassing the parliament, the lack of stakeholder consultation shows in the final product that the courts then have to strike down.

Only laws that come from a place of citizens’ well-being can withstand the test of time. Malicious intent in legislation is conspicuous, damages the reputation of a political party, is often weaponised against the party that brought it, and eventually ends up being overturned.

At the end of the day, fundamental rights must be upheld in their true essence rather than provisos being manipulated for myopic ends.

For now, the FIA is closing down 7,000 cases and inquiries under Section 20. This should offer some solace and healing to all those wronged by the abuse of such a vague and broad legal instrument against basic freedom of speech.

The writer is director of Bolo Bhi, an advocacy forum for digital rights.

He tweets @UsamaKhilji

Published in Dawn, EOS, April 17th, 2022

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