A PARTICULARLY problematic clause in an overall controversial piece of legislation is to undergo further scrutiny, this time in the Supreme Court. Admitting a petition by singer Meesha Shafi, a two-judge bench on Wednesday stayed criminal proceedings against her in a defamation suit under Section 20 of the Prevention of Electronic Crimes Act, and signalled its intention to determine the constitutionality of what is colloquially known as Peca’s ‘criminal defamation’ section. It is the latest development in Ms Shafi’s high-profile sexual harassment case against another well-known singer, Ali Zafar. As Justice Qazi Faez Isa pointed out during the hearing this week, there are two contradictory rulings by the Islamabad and Lahore high courts on Section 20. On March 9, the Lahore High Court had held that the legislation was not ultra vires of Article 19 of the Constitution that protects freedom of speech and expression. The Islamabad High Court, however, on April 8 struck down the part of Section 20 that pertains to damage to reputation as being unconstitutional. That, and the court’s simultaneous scrapping of the execrable Peca amendment ordinance which had vastly enhanced the scope and punishment for criminal defamation and made it cognisable and non-bailable was a significant victory for right to freedom of speech advocates.

Certainly, as the Supreme Court has noted, clarity is needed on the issue. What is crystal clear however, is that having criminal defamation on the statute books relegates us to a shrinking pool of countries with notoriously repressive regimes. At least two dozen journalists in Pakistan had been charged under Section 20 by the end of last year, and the inevitable chilling effect on dissenting voices is undoubtedly the objective that the PML-N government, and other state institutions, had in mind when Peca was enacted in 2016. Moreover, in Pakistan, the clause has been repeatedly used to silence women complaining of sexual harassment, and thereby has victimised them further. What makes it all the more ironic is that Section 20 was brought in on the pretext that it would protect women who were slandered online. Instead, it has become an instrument of repression, serving as an extension of the patriarchal attitude that cannot brook women articulating their experiences of abuse and violence instead of bearing their mistreatment in silence. A modern, forward-thinking state must remove defamation from the ambit of criminal law, and instead strengthen the civil law dealing with it.

Published in Dawn, June 10th, 2022