IT is alarming that the PDM government is trying to expand the powers of the Federal Investigation Authority (FIA) to enable action against social media posts that are deemed critical of the military. Such posts have recently seen a surge because of the security establishment’s alleged interference in politics.
The PDM government is attempting this through a recently proposed amendment to the FIA schedule by adding Section 505 of the Pakistan Penal Code (PPC) to it. This means that the FIA would now have the power to prosecute people for speech that it considers as inciting a mutiny within the armed forces.
Section 505 also includes provisions related to the dissemination of deliberate rumours or false information. This amendment focuses on speech that can be seen as inciting public mischief, leading any person “to commit an offence against the state”.
It is important to note the background of this move. A private member bill by a PTI MNA in April 2021 had proposed an amendment to Section 500 of the PPC, which pertains to criminal defamation, by adding a jail term of two years for ridiculing the armed forces.
The National Assembly Standing Committee on Interior had approved this bill, but it was withdrawn after protests by the media, civil society and the opposition of the time, which comprised the PML-N and PPP. Current Federal Information Minister Marriyum Aurangzeb had, at that time, asked the committee chairperson to read the Constitution before passing such a bill.
Later, the PTI-led government passed a presidential ordinance to amend the Prevention of Electronic Crimes Act, 2016, and make it easier for the defamation of organisations and state personnel to be made punishable.
In a move that benefited the PTI immensely, the Islamabad High Court struck down the Peca amendment as well as the part of Section 20 of Peca that criminalised the causing of damage to someone’s reputation, with jail time for the offence. Had the ordinance still been in place, the FIA’s role would have been abused to take action against PTI leaders and supporters for criticising the military and the government on social media.
The cabinet’s nod to a controversial amendment to the FIA schedule sets an appalling example of political leaders not learning from history.
In this context, the current move by the government once again shows an attempt to make it easier for the state to act against criticism, especially on social media, where information and hashtags proliferate swiftly and manage to have an impact on politics.
What happened with PTI Senator Azam Khan Swati is a case in point. The FIA allegedly took action against him within a few hours of his tweet criticising the army chief. The FIA raided his house, humiliated him, picked him up, and enabled his torture, as described by Senator Swati.
This took place despite the FIA not having the legal authority to take such action, as the agency requires prior approval for legal action from the federal cabinet (as long as Section 505 is not part of the FIA schedule). Senator Swati was also recently blackmailed via a widely condemned recording of his private moments with his spouse.
Section 505 of the PPC is a colonial leftover that empowers the police to take action, subject to warrants from the courts. Adding it to the FIA schedule empowers the agency to take action without warrants against those it deems to have tried to incite a mutiny, including on social media.
There are constitutional issues with such an approach. Article 19 of the Constitution, that protects the right to freedom of speech and press freedom, has a proviso regarding the security of the defence of Pakistan. The target of most recent cases seems to be criticism of the military’s interference in politics, which is already unconstitutional.
The military’s repeated proclamations of distancing itself from politics underscores that. How then is criticism of this deemed criminal? How would people speak up against the unconstitutional military coups we have suffered since soon after Pakistan’s inception — including the illegal overthrow of governments run by the main players of the PDM government? That is what makes the cabinet nod all the more surprising, and sets an appalling example of political leaders not learning from history.
The Islamabad High Court has already recently said that it is a stretch to imagine mere tweets leading to mutiny within the armed forces, and ruled that the FIA has no jurisdiction to prosecute cases under Section 505 of the PPC. The interior minister has also stated that the proposed amendment to the FIA schedule will be taken to parliament, even though Section 6 of the FIA Act empowers the cabinet to amend the FIA schedule.
Granting additional powers to the FIA essentially means that political opposition will be prosecuted more vehemently. The chilling effect will discourage the exercise of democratic rights; taxpayers will be unable to hold state employees accountable; and the FIA will become a tool for protecting those in power rather than an agency for protection of citizens.
Recent attacks on Pakistani journalists at home and even abroad, such as in the case of Arshad Sharif and Sajid Husain; the detention and torture of a serving senator in the case of Azam Swati; the registration of an FIR against Manzoor Pashteen for his speech at the Asma Jahangir conference; the resignation of the law minister Azam Tarrar; the assassination attempt on Imran Khan; and talk of amending the Army Act all point to the shrinking of democratic space for freedom of expression and upholding civilian supremacy.
All political parties need to agree on the red lines regarding their relationship with the establishment rather than become tools in covering up its excesses of power, as witnessed in Pakistan’s history.
We have learnt the hard way the extent of damage caused to fundamental rights. Moreover, it is an affront to honest, hardworking, taxpaying and vote-casting Pakistanis who go to the ballot with the hope of having the ability to shape their future.
Let us respect the struggle of those who sacrificed so much so we can enjoy dignified freedoms and rights, rather than roll back democracy.
The writer is director of Bolo Bhi, an advocacy forum for digital rights.
Published in Dawn, November 19th, 2022