IHC takes sting out of PECA 2022

Court restrains FIA from arresting anyone under Section 20 of the ordinance

ISLAMABAD:

The Islamabad High Court on Wednesday restrained the Federal Investigation Agency (FIA) from arresting anyone under Section 20 of the recently promulgated amended Prevention of Electronic Crimes Act (Peca) ordinance.

IHC Chief Justice Athar Minallah issued the orders while hearing a petition filed by the Pakistan Federal Union of Journalists (PFUJ) challenging the Prevention of Electronic Crimes (Amendment) Act Ordinance 2022.

President Dr Arif Alvi had promulgated the ordinance on Sunday, making online public defamation a cognisable and a non-bailable offence and also increasing the jail term for defaming any person or institution from three years to five years.

Before the ordinance came into effect, Section 20, which pertains to registration of complaints against individuals by aggrieved parties over defamation, was a bailable and non-criminal offence.

However, the ordinance made the offence criminal and extended the sentence to five years instead of three.

Justice Minallah noted that the FIA had already submitted a document of its standard operating procedures (SOPs) to the court that nobody would be arrested under Section 20 of the ordinance without giving that person a reasonable opportunity and the conclusion of the inquiry contemplated under the Federal Investigation Agency Act, 1974.

The order added that the FIA director general and the interior secretary would be jointly held responsible if the liberty of a person was breached in violation of the SOPs submitted before the IHC as well as the Supreme Court.

The FIA had submitted its SOPs to the IHC in July last year after the court had sought a report from the agency to stop the misuse of the cybercrimes law.

Read Bars term PECA ordinance oppressive, extraconstitutional

The court observed that the counsel representing the petitioner had stressed that many sovereign states had decriminalised the offence of defamation, including Zimbabwe, Congo and Uganda.

“The learned counsel has contended that the vires of Section 20 of the Act of 2016 have already been challenged and the matter is pending before the court.”

The IHC also directed the attorney general for Pakistan (AGP) to appear in the court on Thursday and assist it in interpreting articles 19 and 19-A of the Constitution in the light of Article 19 of the International Covenant on Civil and Political Rights.

The order further read that the court expected the AGP to justify introducing the amendments through an ordinance promulgated under Article 89 of the Constitution that prima facie appeared to have the effect of making an already criminalised act of defamation more “oppressive and draconian”.

“The likely consequences for freedom of expression and the right of access to information appear to be profound and not consistent with the fundamental rights guaranteed under articles 19 and 19-A of the Constitution.”

The court noted that the protection of a private person’s reputation could definitely not outweigh the right of free speech in a democratic society governed under the Constitution.

“The [AGP] is also expected to justify how the offence of criminalised defamation can be resorted to by public office holders, whether or not elected, and the institutions/organs of the State.”

The IHC also clubbed all pleas filed against the Peca ordinance into a single petition, including the one filed by PPP’s Farhatullah Babar on Wednesday.

Earlier, Adil Aziz Qazi, the lawyer representing the PFUJ, informed the court that the Senate session was adjourned on Feb 17 while the National Assembly session was scheduled a day after it. He contended that the National Assembly session was called off abruptly to pave the way for the promulgation of the Peca ordinance.

Criticism against the law

After a stream of criticism from the opposition parties, rights organisations and civil society, the MQM-P -- an ally of the ruling PTI -- has also joined the bandwagon, raising objections over the controversial ordinance.

Federal Information Technology Syed Aminul Haq, who belongs to the MQM-P, has written a letter to Prime Minister Imran Khan, saying that that he did not agree with the amendments as the government did not take the stakeholders into confidence.

He added that the provision for arrest without bail and a lack of interpretation of “fake news” in the amendments had led to unrest in the country. “It would have been better if the stakeholders were consulted for this,” he added.

Read More: MQM-P leader asks PM Imran to drop idea of amending PECA

Haq wrote that journalism was the fourth pillar of the State and every government had enjoyed its relations with the media. However, he added, the ordinance had drawn the media’s ire.

He said although his party was the government’s ally, but it still believes in fighting for the rights of the people. “Therefore, the MQM-P cannot support such laws,” he added.

The minister warned that the ordinance carried the threat of withdrawal of public support for the government. He hoped that PM Imran would come up with new amendments following consultations with the relevant stakeholders.

Note: The earlier version of the story incorrectly stated that "IHC suspends Section 20 of PECA ordinance". The error is regretted.