The Islamabad High Court on Wednesday ordered the Federal Investigation Agency (FIA) not to make arrests under Section 20 of the recently promulgated Prevention of Electronic Crimes (Amendment) Act Ordinance 2022.
The IHC Chief Justice Athar Minallah ordered while hearing a petition filed by the Pakistan Federal Union of Journalists (PFUJ) against the ordinance on Tuesday.
It is pertinent to note that President Dr Arif Alvi had promulgated the ordinance on Sunday to amend the Prevention of Electronic Crimes Act, 2016 (Peca).
Under the ordinance, online defamation was made a non-bailable, cognisable offence and the jail term for defamation was increased from three years to five years. The ambit of the Federal Investigation Agency (FIA) was also broadened.
The word “natural” was omitted from Section 20 of the ordinance, which was previously titled “offences against the dignity of natural person”. After the amendment, the definition of a “person” was expanded to include any company, association or body of persons whether incorporated or not, institution, organisation, authority or any other body established by the government under any law or otherwise.
During the hearing today, the IHC chief justice remarked that the FIA had already submitted a document of its standard operating procedures (SOPs) to the court, stipulating that no arrests will be made under section 20 of the ordinance.
“In case of violation of the SOPs, director general FIA and home secretary will be responsible,” the court observed.
The FIA had submitted its SOPs to the court in July last year after the IHC had sought a report from the agency to stop misuse of the cybercrimes law.
Justice Minallah remarked that even countries such as Zimbabwe and Uganda were also removing defamation from their criminal law.
Earlier, PFUJ’s counsel Adil Aziz Qazi informed the court that the Senate session was adjourned on Feb 17 while the National Assembly session was scheduled a day after it. “However, the session of the lower house of the parliament was called off abruptly to pave the way for the promulgation of the Peca ordinance.”
The chief justice inquired about the sections of the Act that had been amended. The PFUJ counsel replied that the scope of section 20 had been broadened, increasing the jail term for defaming any person or institution from three years to five years.
After hearing the arguments, the court issued a notice to the attorney general, seeking a response from him on Thursday.
The PFUJ had challenged the ordinance on Tuesday in which the president and the federation of Pakistan through the secretaries of the law and information ministries were made respondents.
The petition stated that the respondents tried to “sneak amendments to existing laws at the eleventh hour” despite the fact that the upper house of Parliament was in session a day before the ordinance was promulgated.
“It appears that the respondents had already prepared the draft of the ordinance and were waiting for the ongoing session to expire in order to avoid the due process of legislation,” the petition reads.
The PFUJ said that the ordinance was promulgated without passing the “necessary tests imposed under the Constitution of Pakistan for legislation through the mode and manner of ordinances”, adding that the promulgation was based on “malice”.
It noted that the Senate was in session till Feb 17, while the National Assembly session scheduled for Feb 18 was called off at the eleventh hour.
The petition said that there was no “emergency situation that called for issuing an ordinance of this nature”, adding that it could have waited till the NA session was called.
Commenting on the changes made to the law, the petition said that the word “natural” had been omitted from Section 20 in an “illegal and unlawful manner”, while by adding institutions, associations and corporate persons to the law, the respondents tried to “criminalise the civil wrong already defined and available under the law”.
“The weaponisation of the section against print, electronic and social media is against the constitutional rights of freedom of expression as provided under Article 19 of the Constitution.”
The petitioner also stated that the insertion of Section 44-A went against the constitutional freedom of the judiciary. It added that the court could not be dictated by the legislature and by doing so, the independence of the judiciary was being undermined.
“Killing free speech in the country is tantamount to [sabotaging] democracy in the country. It is ironic that the government is moving towards criminalisation of free speech at a time when the entire world is moving towards de-criminalising defamation,” the petition said, adding that it was a crude attempt by the government to “browbeat its opponents”.
Federal Law Minister Barrister Farogh Naseem, at a press conference last week, had forecefully defended the government’s move by highlighting that it gave the right to anyone, and not just the aggrieved person, to file a complaint against online defamation.
He had said it was only aimed at bringing about “reforms in the media”, where disinformation had badly damaged social norms and defamed many including the former chief justice of Pakistan and family of Prime Minister Imran Khan.
Meanwhile, Minister for Information Technology and Telecommunication Syed Aminul Haque has written a letter to Prime Minister Imran Khan, urging him to withdraw the ordinance and hold consultations with relevant stakeholders on the matter.
In the letter, submitted to the premier today, the minister pointed out that “the media community is deeply concerned and restless about the latest amendments to the Peca ordinance.”
He said the announcement of the amendments had drawn widespread condemnation and ire of media bodies and the journalistic community as a whole.
“The media is the fourth pillar of democracy and each government enjoys a unique relationship with the media. It is through the media that a government is able to project its image to the public. By pushing forward with these amendments without consulting the relevant stakeholders, in this case, media practitioners, the government will stoke anger and resentment within the journalistic community.”
The minister said media bodies and journalists had announced to resist the ordinance at every forum. “I, therefore, urge you strongly to pay heed to the voice of protest against the PECA amendments and launch a consultation process with the civil society and the media community at the earliest.”
