No hesitation in calling PECA a draconian law, says Islamabad High Court

February 24, 2022 — During a hearing on the petition challenging Prevention of Electronic Crimes (Amendment) Ordinance 2022, Chief Justice Athar Minallah remarked that there is no hesitation in calling PECA Ordinance a draconian law. He said that the Ordinance is evidently in violation of Article 19 of the Constitution of Pakistan which guarantees freedom of expression. He also questioned the urgency to pass the amendment as an ordinance, rather than waiting to get the approval from Cabinet when it returns in session.

Chief Justice Athar Minallah has clubbed all the petitions challenging the PECA Ordinance. During the hearing on Thursday, Pakistan People’s Party member Farhatullah Babar and various lawyers were present in the Court. Whereas, Attorney General Khalid Jawed Khan was also present as an amicus.

The Court reiterated that countries around the world are decriminalising defamation, and the cases that this Court has received regarding criminal defamation are shocking. Referring to the case that was registered last year by PTI member Kanwal Shozab against her neighbour for an environmental issue, Chief Justice Athar Minallah said that the neighbour was harassed on the complaint of the member of ruling party. He said that nobody should be worried about the government using this law against them for expressing criticism, but unfortunately actions were taken against those who criticised the government. “It did not look like this was happening in a democratic country.”

Chief Justice Athar Minallah further said that proceedings on the said case were still underway when the court received the case challenging PECA Ordinance. He said that it is worrisome that the law has been made draconian through an ordinance. Why should the court not suspend PECA section 20? He said that courts around the world have done this.

The Chief Justice further remarked that if an executive is so worried about their personal reputation, then they should exclude public office holders from it. Every public office holder’s strength is their reputation in the public. He said that the law is being passed by the very party whose main strength was social media. Whatever is happening on social media, political parties and their workers are responsible for it. “When political parties make their social media teams, then why are they scared of differences of opinion?”

He further said that institutions do not have fundamental rights, then why are they being put under this umbrella [under the PECA Ordinance]. He said that even the courts will help you if you make efforts to improve civil laws.

Attorney General Khalid Jawed Khan said, “The Court has the authority to declare section 20 unconstitutional, but I think it is not unconstitutional.” He said that it is important to look at the misuse of the law, but there should be safeguards as well. “I’m ready to defend this law, but I also know that safeguards [to protect freedom of expression] should be in place as well. I have a plan in mind, and I have also met the Prime Minister regarding this,” he informed.

Chief Justice Islamabad High Court said that it is the responsibility of the Court to respect the Parliament. The government drafted the Ordinance, let the Senate approve or reject it. Ordinance was approved because the country has run on ordinances for 33 years, he said.

Justice Athar Minallah said that some court orders have summarised Article 89 of the Constitution. You say that the FIA will arrest the person who will be in jail until the trial is concluded – this is a draconian law, and you have made it worse than the law of the National Accountability Bureau (NAB). You are promoting self-censorship through this, and people would not do anything only out of fear of being arrested.

Justice Minallah said that FIA has been tasked with protecting the personal reputation of public office holders, what else could be more bullying than this, that even though you presented SOPs before this Court and the Supreme Court but did not follow them. What else could be more bullying than them violating SOPs, he remarked.

The Court referenced that it is simple that the both houses of the Parliament have to give their decision over any legislation. The Attorney General responded that he will check the rules to confirm that only one house can also approve the legislation.

The Attorney General informed that many countries have not decriminalised defamation. He referred to the hate directed towards the first lady Bushra Bibi, and questioned whether it would be considered freedom of expression if someone claims that a woman in niqaab does magic.

Advocate Latif Khosa who is representing PFUJ in the Court said that Pakistan People’s Party (PPP) has also challenged the PECA Ordinance, whereas Barrister Jahangir Jadoon said that PML-N has also submitted a request regarding this.

The Court said that the opposition has a majority in the Senate, and they have the authority to reject this law. It said that the opposition should perform their duties in the Parliament. Justice Athar Minallah said that the Court respects the Parliament and will not act on the requests of political parties.

Attorney General asked if it is ok to upload someone’s private or doctored videos on social media, to which Chief Justice Athar Minallah reminded that he should look at section 20 before it was amended and notice how FIA has misused the powers granted to it whenever there was a complaint from a public office holder.

He said that you are empowering the FIA to arrest anyone and that person will stay behind bars until trial concludes. He reminded that the FIA raided journalist Mohsin Baig’s house and confiscated his laptop; it also arrested two journalists from Lahore without any notice and they disappeared for a long time. When the agency was asked why they arrested the journalists, it said that it received a complaint. One journalist was arrested for explaining the history related to a book he referenced in a vlog, the court asked whether people can not even discuss history anymore. “We brought the country to this point in 70 years, and you want that no one even discusses it.”

The Court mentioned that defamation was criminalised in Britain to save the monarchy but then the law was abolished later. The Attorney General responded that Britain does not also have accountability courts, and rulers do not run away from the country there.

The Chief Justice said that given the atmosphere and in light of the hatred in society, what else do you expect? Do you realise that the amendment is trying to protect the reputation of public office holders as well. The Court does not care what is trending on social media.

The Attorney General said that the PECA Ordinance will not be implemented on political speech. The Court demanded that he must clarify this law will not be implemented on any kind of speech. The Chief Justice asked what rights do public bodies and institutions have? They should not be scared of any kind of criticism.

Justice Athar Minallah said that Uganda has also decriminalised defamation, whereas the Attorney General said that Belgium, Germany and Iceland still criminalise it. The Court told the Attorney General to read the court orders from these countries – if someone complains that the government official said something, would you arrest them as well?

The Attorney General informed that the Ordinance will be put in front of the Cabinet to ensure that it is not misused.

The case is adjourned until March 10, 2022.

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