Social Media Rules prima facie, in violation of Article 19 & 19 A: Islamabad High Court

Islamabad, 4 December 2020: The Removal and Blocking of Unlawful Online Content Rules 2020 s notified under Section 37 of the PECA, 2016 are  “prima facie in violation of Article 19 and 19-A of the Constitution” held Chief Justice of the Islamabad High Court during the hearing of a petition filed against the banning mobile application TikTok. 

The petition, filed by Mr. Ashfaq Jutt earlier in October, was being heard despite the ban being lifted on the application, as the Court continues to explore the broader question of PTA’s arbitrary powers of content regulation under the PECA, that have now been broadened further by the Social Media Rules notified in November 2020. 

When presented with the copy of the Rules, Chief Justice Athar Minallah remarked that these Rules was unconstitutional and stressed upon the need for holding a meaningful and formal consultations with relevant stakeholders for the drafting of these Rules. 

Against Democratic Values 

The Chief Justice also said that  in order to ensure that democractic principles are followed, citizens must have access to all kinds of information and that PTA should not discourage critical voices and instead “encourage criticism” and let the people of the nation judge their government. 

Adding to the point about dissenting voices, the Chief Justice also highlighted that even Court judgments are open to bona fide criticism and assessment, if being done in public interest, further upholding the citizen’s rights under Article 19 of the Constitution. 

Lead Counsel in the case, Mr. Usama Khawar said after the hearing, “IHC CJ has rightly observed that the best manner to ensure accountability in a democracy is to let the people have access to information. In my opinion, access to information is a sine qua non for meaningfully exercising the other democratic rights, like elections of a democratic government, voting, etc. The voters need to have information about the performance of their elected representatives in order to evaluate their performances  and vote accordingly at the time of elections. Additionally, citizens’ right to access to information and meaningful exercise of the right to information provides the government of the day feedback about its performance and corrects its course if needed. If these rights are restricted, all the stakeholders in the country – the citizens, the government, and ultimately the State – loose and suffer.”

Questions on 4 1(ii)

The Court went on to berate Rule 4(1)(ii)  of the Gazetted Rules that was initially framed to outlaw any criticism against government or public officials. The Clause has now been amended in a ‘corrected version’ of the Rules that has been uploaded on the website of Ministrt of Information Technology and Telecommunications. The corrected version was also presented to the Court by PTA, on which  the Chief Justice demanded to know how a rule, that violated the Constitution and basic fundamental rights to such an extent, was allowed to be framed in the first place. 

PTA Powers Continue to be in Question

An amicus brief was also presented to the Court by Mr. Abid Saqi, Vice Chairman of Pakistan Bar Council, and his lawyer, Mr. Usman Warraich, that raised several concerns with the powers granted to PTA under Section 37 of the PECA, 2016 and the Social Media Rules. The Chief Justice adjourned the case till 18th December, when the state counsels are also expected to submit their responses. 

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Salwa Rana is a lawyer who specialises in digital human rights policymaking.

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