The Peca menace

Published October 20, 2022
The writer is a co-founder of Bolo Bhi, an advocacy forum for digital rights.
The writer is a co-founder of Bolo Bhi, an advocacy forum for digital rights.

THE FIR registered against Senator Azam Swati fits a pattern visible since 2017: use of Section 20 of the Prevention of Electronic Crimes Act (Peca) 2016, with cognisable sections of the Pakistan Penal Code, to arrest individuals in connection with social media posts about state officials or institutions —– in Swati’s case, the COAS.

Colloquially referred to as the criminal defamation section in Peca, critics always maintained Section 20 would be a weapon in the hands of the state against dissidents and needed to be omitted from the law. No so-called procedural safeguard has prevented this. Despite the scope of Section 20 being limited to a “natural person”, requiring an aggrieved individual to be the complainant, third parties are able to allege “defamation of institutions”. Though it is a non-cognisable offence and requires the court’s permission for investigation, the FIA swiftly registers FIRs, conducts raids, arrests individuals and seizes devices, contrary to the procedure laid down in the law.

What has changed between 2017 and now is the Islamabad High Court verdict. Though the detailed order is still awaited, the short order strikes down the “harm to reputation” part of Section 20. However, all of Section 20 has not been struck down; spreading false information and intimidating privacy remains, which has been relied upon in the FIR against Swati. Fortunately for Swati, the IHC also struck down the ordinance introduced by his party when in government.

The PTI’s ordinance expanded the scope of Section 20 to include public institutions and office holders. It converted Section 20 into a cognisable offence empowering the FIA to register FIRs and make arrests. The ordinance gave legal cover to what were previously routine but unlawful practices. Had the ordinance been in effect, Swati’s counsels would have no leg to stand on to argue the illegalities in his case.

Registering a case without any legal basis is easy, but closing it is not.

The IHC verdict is a win, but it is only a first step. While some cases came to a close with the verdict, several trials under Section 20 are still underway, especially against individuals — many of them women — who made disclosures of sexual harassment, or spoke up in support of those who did. Section 20 is not the only problem. Other sections of Peca, such as Section 9 (glorification of an offence), 10 (cyberterrorism) and 11 (hate speech) have also been used to construct politically motivated cases, such as those against Prof Ismail, Dr Abdul Hai, Ismail Mehsud and Ihtesham Afghan, known for their affiliation with the Pashtun Tahaffuz Movement, and journalist Bilal Farooqi. These are still pending with no end in sight. Many of the cases now closed or still pending were registered between 2019 and 2020 — while the PTI was in government.

Registering a case without any legal basis is easy, but closing it is not. The onus is shifted onto the victim to go through the motions of obtaining bail, attending hearings, relying on legal counsel to raise violations of the law to get the case quashed, by which time the objective is achieved: to teach a lesson and make an example for others.

Transgressing the law is a norm, but why wouldn’t it be? Despite a litany of cases before courts in which abuses have been established, and testimonies before the parliamentary committees of the Upper and Lower Houses, no individual or institution has been held to account for their transgressions. Reprimanding them in court or before a committee does not translate into tangible consequences at an individual and institutional level. There is no deterrence for violating the law; in fact, there exists complete impunity for flouting it as there is zero ac­­countability. When transgressors walk away unpunished, they are set at liberty to repeat the same again — and they do.

Today, the PTI is a beneficiary of the efforts made by journalist groups, lawyers and rights activists — the ones they targeted when in government. The court, accused of bias by the PTI, has provided relief against state overreach, the kind others experienced under PTI’s rule.

Political parties seldom learn any lessons from their time in opposition. There may be a change of faces but the policies remain the same. Though now Prime Minister Shehbaz Sharif had welcomed the IHC verdict striking down the PTI ordinance, the PML-N has yet to acknowledge and rectify the harm done by Peca, a law introduced by them, which was ironically used against Nawaz Sharif and others in PML-N quite recently. Though critical of the PTI’s social media rules, no effort has been made by the PDM government to de-notify them.

Peca, by design, was introduced to harass and silence. To this end, it has been effective. Mere tweaks will not do; the time has come to scrap Peca completely for the menace it is.

The writer is a co-founder of Bolo Bhi, an advocacy forum for digital rights.

Published in Dawn, October 20th, 2022

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