Originally published in The News on February 22, 2022
An amendment in the Prevention of Electronic Crimes Act, PECA (2016) was long expected, but that the amendment has been brought in through an ordinance is an indication of the desperation with which the government wants to keep other parliamentary parties away from any discourse on a law that has direct implications on political speech.
The Prevention of Electronic Crimes Act, 2016 (PECA) amendment ordinance, promulgated by the president, focuses on a singular point: to increase the ambit of PECA to cover companies, organisations and any other bodies established by the government. The amended definition takes care to include bodies of persons that are incorporated or not and to government bodies that are established by the government under a law or otherwise. The addition of these meticulous details in this amendment demonstrates the intensity with which this government seeks to curb criticism against itself.
The operational part of the ordinance is this: after the amendment, the government, anybody that it puts together, whether a formal outfit or an informal loosely formed group, would have the right to file an appeal under Section 20 of PECA on the grievance of the subject of speech that it holds as ‘false’ and believes to intimidate, harm the reputation or privacy of that body. Additionally, the offence would be made non-bailable and cognisable.
Before the amendment, only individuals had the right to initiate a complaint under Section 20, and it was a bailable offence. In simple words, in Naya Pakistan, tweet negatively about a government representative, a body or a decision, in a way that evokes criticism – and, viola, you may now be arrested without a chance of bail and face up to five years in jail and can be arrested.
Of course, the condition is that the information that you are basing your criticism upon has to be ‘false’. PECA doesn’t differentiate between news and opinion, and opinions by default are subjective and interpretative in nature. Secondly, across its tenure this government and its representatives have consistently denied and cried ‘fake news’ on various news items that were later proven correct. Essentially, over the last few years ‘truth’ has been a strange beast, changing shape with time and context.
Defamatory false speech is already criminalised under multiple laws in Pakistan including Sections 499 and 500 of the Pakistan Penal Code and the Defamation Ordinance 2002, which create both criminal and civil liabilities for defamatory speech. While the FIA has not revealed the exact number of cases that have been initiated under Section 20 of PECA, the cases that have been made public by the accused appear to focus largely on journalists and civil society actors. In fact, in a similar case by journalist Asad Toor, IHC Chief Justice Athar Minallah had commented that “If authorities started taking action against defamation then this process won’t stop at anything”.
The judge’s comments sum up the issue with the government’s approach – if authorities are legally allowed to shout defamation at every expression, journalistic or otherwise, that offends them and brings them under criticism, there would be no space left for democratic discourse. Both government and government bodies have to be cognisant of the fact that there is a massive power imbalance between the government and private actors. Criticism is part and parcel of a democratic setup and should be welcomed rather than discouraged.
Coming back to the amended law, the addition of Section 44A is most fascinating. Under this section, the trial courts are being asked to conclude cases under six months and submit ‘monthly reports’ to high courts on the progress. If a case is not concluded within the prescribed timeline, the trial court has to identify why and the high court is to proceed within the framework included in this section.
Shall we applaud this supremely paternalistic approach as a valid effort towards efficiency and expedition of justice? Hardly! The Federal Investigative Agency (FIA), the main investigating agency for PECA, in a report to the IHC noted that the number of cybercrime complaints it has received under PECA had soared to 72,000 in 2019 as opposed to the 1600 received in 2016. As per the FIA report, the caseload per investigator was already at 95 complaints per month in 2019. The FIA also noted other challenges, including inadequate training and capacity building.
The amendments in the draft in circulation would only increase FIA’s workload exponentially killing any chance of effective and fair investigation. However, this perhaps should not be a cause for concern, for as we have recently seen in the case of Mohsin Baig’s arrest, the FIA appears to have super speed when moving against someone accused of the particular type of speech that the government has now criminalised under PECA, 2016.
Like the PML-N in 2016, the PTI in 2022 appears to have lost all political foresight and is moving to create a legal framework that would make it increasingly difficult for anyone to be critical of those in power. And the ruling party should remember that politics is an ever-changing game, and nobody remains in power indefinitely.