Islamabad High Court describes PECA changes as ‘draconian’ | Pakistan Press Foundation (PPF)

Pakistan Press Foundation

Islamabad High Court describes PECA changes as ‘draconian’

Pakistan Press Foundation

ISLAMABAD: Islamabad High Court Chief Justice Athar Minallah on Thursday described the Pakistan Electronic Crimes Act (Peca) Ordinance 2022 as “oppressive and draconian”.

The court also extended its order to refrain the Federal Investigation Agency (FIA) from directly arresting anyone without the complete implementation of its standard operating procedures (SOPs) till March 10 – the next date of hearing.

Justice Minallah was hearing the pleas clubbed together against the new ordinance.

Lawyers representing the petitioner Pakistan Federal Union of Journalists (PFUJ) as well as PPP’s Farhatullah Babar, who had also filed a plea against the ordinance, appeared before the court.

Attorney General for Pakistan (AGP) Khalid Jawed Khan was also present during the proceedings as a judicial assistant.

The IHC CJ observed that Peca was only used to target critics of the government.

“It is being said with regret that the proceedings [under Peca] were initiated against those individuals who criticised the government.”

Justice Minallah noted that it did not appear as if this was happening in a democratic country.

The court also referred to a case against a neighbour of a PTI lawmaker over criticism. “The FIA harassed that person,” the judge observed, calling it a “shocking case”.

It added that there were 14,000 complaints pending with the FIA but only the government’s rivals were being targeted.

“Why shouldn’t Section 20 of Peca be declared null and void?” the IHC CJ remarked, adding that such decisions had been made by courts across the globe.

The IHC chief justice further observed as to how could the PTI, which rose to fame due to the support it garnered on social media, make such legislation.

The judge remarked that he would not entertain the pleas of political parties against the ordinance, blaming them and their activists for “whatever is happening on social media”.

He added that with the exception of the Jamaat-e-Islami, all political parties encouraged their activists to troll and hurl accusations against opponents on social media platforms.

The IHC CJ advised the opposition parties to play their role against the Peca ordinance in parliament instead of filing petitions in this court.

“This court respects parliament and will not initiate proceedings at the request of political parties,” Justice Minallah noted, adding that the government made the ordinance and it should let the Senate “accept or reject” it.

The Peca ordinance was challenged by the PPP and PML-N along with media bodies and superior bar councils. Addressing the opposition, the IHC CJ said: “You have a majority in the Senate…you have the power to reject the ordinance.”

The judge questioned as to why political parties were afraid of dissent when they themselves had established social media cells.

“State institutions don’t have fundamental rights. How can they be included in the aggrieved parties?” the IHC CJ asked, adding that the public bodies should not be afraid of criticism.

He noted that the executive should remove public office holders from their posts if it was so concerned about their reputation.

During the hearing, the IHC CJ grilled the FIA for abusing its powers in cases against the critics of the government.

The IHC CJ noted that the FIA had abused its authority in complaints involving public office holders in every case that came before the high court even before the amendments to Peca.

The judge maintained that through this ordinance, the government was giving the FIA powers to arrest anyone and put them in jail till the conclusion of the trial. “The court has no hesitation in saying that the ordinance is a draconian law.”

He noted that the ordinance would result in self-censorship, adding that the law was even worse than the National Accountability Ordinance (NAO). “People will stop writing out of fear of this law.”

Speaking further about the FIA, Justice Minallah noted that the agency had already submitted a document of its SOPs to the court but had not followed them. “Such is the highhandedness of the FIA.”

The judge observed that the FIA had picked up two journalists from Lahore under Peca.

“These journalists were picked up in a manner that they weren’t even told the reason for their detention,” he added, noting that they remained “disappeared” for quite some time.

The judge observed that when asked about the arrests, the FIA had said a complaint was registered against them.

Justice Minallah remarked that one of the journalists was picked up for quoting a history book in his vlog. “Now, it is not even allowed for anyone to cite history,” he questioned. The AGP contested this, saying that had not happened.

The IHC CJ also remarked on the confiscation of journalist Mohsin Baig’s laptop from his house, saying the government was even targeting the “sources of journalists”. “Even though they [journalists] are not asked about their sources,” he added

The judge reiterated that defamation laws were being decriminalised across the world as he gave examples of Britain and Uganda.

The AGP responded that there were many countries where the law was not decriminalized.

The attorney general told the court that Section 20 of the ordinance was not unconstitutional.

However, he added that there was a need to provide safeguards against the misuse of the law. He said he would meet the prime minister as he had a “plan” for changes in the law.

He further said the law would not apply to political speeches.

The IHC CJ, however, asked him to assure that the law would not apply to all types of speeches.

The AGP said he would take up the issue with cabinet members. Subsequently, the hearing was adjourned till March 10.

In an order issued later, Justice Minallah observed that the AGP “was informed that it has, prima facie, become obvious on the basis of the record before the court that the gross abuse of powers vested in the agency [FIA] was restricted to alleged complaints of attacks on reputations of public office holders”.

“The victims were critics, dissenters, political activists, human rights defenders, journalists and even a neighbour who had raised his dissent regarding damage caused to the environment at the behest of an elected public office holder,” the order read.

”It appears that rather than exercising caution and taking effective measures against abuse of criminalised defamation, prima facie, oppressive amendments have been introduced.”

The judge noted that it prima facie, appeared that the likely effect of the amendments would be to discourage free speech.

“The chilling effect that has already been created through the rampant and widespread abuse of the offence of criminalised defamation seems to have been sanctioned through the repressive and draconian powers given to the agency [FIA] pursuant to the impugned ordinance.”

The judge further noted that the arrest or prison sentence in complaints relating to defamation had sufficient “chilling” effect to raise the question whether or not the threshold of “reasonable restriction” in the context of Articles 19 and 19-A of the Constitution had been met.

“Moreover, whether [or not] even unjustified attacks on the reputation of private individuals would outweigh compromising the right of free speech guaranteed under the aforementioned constitutional provisions.”

The order further read that arrest or imprisonment might be justified only in exceptional circumstances i.e. when there was serious impairment of fundamental rights — in case of hate speech or incitement to violence — but definitely not when it had a “chilling” effect likely to breach or discourage free speech in order to protect a private individual’s reputation.

“It, therefore, prima facie, appears to the court that criminalisation of defamation under Section 20 of the Act of 2016 and the impugned ordinance do not satisfy the threshold of “reasonable restriction” and thus they are [neither] compatible with the fundamental rights guaranteed under Articles 19 and 19-A of the Constitution,  nor the obligation of the State.”

It was pointed out in the order that there was another crucial question regarding the constitutional validity of the impugned ordinance.

“Public bodies do not enjoy protection of fundamental rights guaranteed under the Constitution because they are bereft of the required status. Their existence is solely to serve the people and the test of their performance is confidence reposed in them by the actual stakeholders i.e. the people.”

The judge noted that public bodies, therefore, did not require protection against attacks on their reputation. “They cannot claim immunity from rigorous scrutiny and accountability by the people.”

The court also noted that the vires of the ordinance had to be justified on the touchstone of jurisdictional preconditions prescribed under Article 89 of the Constitution.

“It has to be justified that circumstances existed which rendered it necessary to take immediate action by exercising powers conferred under Article 89 and thus circumvent the legislative process within the exclusive jurisdiction of the Majlis-e-Shoora (Parliament).”

The court raised the question as to would an unjustified circumvention not be a fraud upon the Constitution, particularly when it had the effect of violating one of the most important fundamental rights i.e. guaranteed under Article 19 of the Constitution.

“The learned attorney general is, therefore, expected to satisfy on the next date fixed, why the court may not declare criminalisation of defamation under Section 20 of the Act of 2016 and the oppressive amendments introduced through the impugned ordinance, as “unreasonable restriction”, consequently incompatible with the fundamental rights guaranteed under Articles 19 and 19-A of the Constitution and thus ultra vires and liable to be struck down.”

Meanwhile, PML-N’s Marriyum Aurangzeb also filed a petition against the ordinance on behalf of her party. Speaking to reporters later, the PML-N leader said every citizen had the right to information and freedom of expression according to the Constitution.

Source: Express Tribune


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