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ISLAMABAD   -   The Islamabad High Court (IHC) Friday declared the promulgation of Prevention of Electronic Crimes (Amendment) Ordinance, 2022 (PECA) as “unconstitutional” by allowing the identical petitions challenging vires of the ordinance.

A single bench of IHC comprising Chief Justice of IHC Justice Athar Minallah conducted hearing of the petitions filed by Pakistan Federal Union of Journalists (PFUJ), Pakistan Broadcasters Association, Council of Pakistan Newspaper Editors (CPNE), PPP leader Farhatullah Babar and others challenging the recently promulgated PECA Ordinance, 2022.

The IHC bench said in its order that for reasons to be recorded later, the petitions are allowed and it also declared that freedom of expression is a fundamental right and it reinforces all other rights guaranteed under the Constitution of the Islamic Republic of Pakistan, 1973. It further said that free speech protected under Article 19 and the right to receive information under Article 19-A of the Constitution are essential for development, progress and prosperity of a society and suppression thereof is unconstitutional and contrary to the democratic values.

The IHC Chief Justice ruled, “The criminalization of defamation, protection of individual reputations through arrest and imprisonment and the resultant chilling effect violates the letter of the Constitution and the invalidity thereof is beyond reasonable doubt.

He added, “The Prevention of Electronic Crimes (Amendment) Ordinance, 2022 was promulgated in derogation of the Constitution and the fundamental rights guaranteed thereunder, particularly Articles 9, 14, 19 and 19-A. The jurisdictional preconditions were also not in existence.”

“The Prevention of Electronic Crimes (Amendment) Ordinance, 2022 and promulgation thereof is declared as unconstitutional, invalid beyond reasonable doubt and it is, therefore, struck down,” declared Justice Athar.

He also said that the offence under section 20 of the Prevention of Electronic Crimes Act, 2016 to the extent of the expression “or harms the reputation” and the punishment thereof is unconstitutional, invalid beyond reasonable doubt and is, therefore, struck down.

The IHC Chief Justice said that the proceedings against the petitioners in the connected petitions are consequently a nullity and thus quashed. However, the aggrieved complainants would be at liberty to avail the remedies provided under the respective laws in the context of defamation.

He said, “The federal government is expected to review the defamation laws, particularly the Defamation Ordinance, 2002 and thereafter propose appropriate legislation to the Majlis-e-Shoora (Parliament) for making its implementation effective.

Justice Athar directed, “The Secretary Interior shall probe into the conduct of officials of the Cyber Crime Wing of Federal Investigation Agency, which had led to widespread abuse of powers and the consequent grave violations of fundamental rights of the citizens. The court expected that the Secretary, Ministry of Interior will conclude the probe within thirty days from the date of receiving a certified copy of this order and inform the Registrar regarding action taken against the delinquent officials.

In this matter, the PFUJ moved the petition through their counsels Adil Aziz Qazi Advocate and Haseeb Hassan Advocate and cited President of Pakistan, Federation of Pakistan through Secretary Ministry of Law and Federation of Pakistan through Secretary Ministry of Information Broadcasting & National Heritage as respondents.

The petitioner prayed to the court that the promulgation of the impugned Prevention of Electronic Crimes Amendment Ordinance of 2022 itself and the Ordinance may be declared as ultra-vires to the entire scheme of Constitution of Islamic Republic of Pakistan 1973 and the fundamental rights of the people of Pakistan.

The petition stated that through the said Ordinance sections 2, 20, 43 have been amended while section 44A has been inserted in the existing law. The definition of the term “person” has been extended to company, association or body of persons whether incorporated or not, institution, organization, authority or any other body established by the government.

It also said, “Furthermore in section 20 the word natural has been omitted and the sentence has been increased from three to five years while adding a new subsection 1(A) whereby the informant or complainant in respect of offence under subsection (1) shall be an aggrieved person, his authorized representative, or his guardian, where such person is a minor, or a member of the public in respect of a public figure or a holder of public office” has been added to the existing law.”

Similarly, the petitioners including Pakistan Broadcasters Association, All Pakistan News Papers Society, Association of Electronic Media Editors and News Directors, Council of Pakistan Newspaper Editors, Mohammad Malick, Azhar Abbas, Ali Kazam Waheed, Aijaz-ul-Haq and Sarmad Ali moved the petition through lawyer Munir A Malik.

They also said that Section 44 (a)(5) inserted in the ordinance - that bounds the courts to decide defamation cases within six months - will pressurize the judges hearing the cases.

The petitioners counsel contended that Sections 2 and 3 of the impugned Ordinance bound to chill free speech. The fear of being dragged in to criminal proceedings on the complaint of any member of the general public on the alleged defamation of public officials, treating false statements as non-bailable and cognizable by the investigation agency as provided for by sections 2 and 3 of the impugned Ordinance are bound to chill free speech and fair comment.

He further said that the section introduced as 44A (5) is a colourable piece of legislation and shall pressurize the judge and hang as a sword over his independence and would thus be offensive of Article 175 and 10-A of the Constitution.

The counsel added that increase in the period of imprisonment from three to five years for disseminating false statements as provided for through the impugned Ordinance is calculated to impose “self-censorship” which impinges the liberty of man and is an affront to human dignity.

He further argued that the satisfaction of the President as to the existence of circumstances necessary to take immediate action as contemplated under Article 89 must be objective and is justiciable. Even assuming, but not admitting that the satisfaction may be subjective where the circumstances may have been purposefully created, the exercise of power under Article 89 would be malafide and a fraud upon the Constitution that the courts have sworn to preserve.

Therefore, he prayed that the court may strike down the said Ordinance as being ultra vires the Constitution of the Islamic Republic of Pakistan.

 Prime Minister Imran Khan’s government recently passed a cybercrime ordinance that prescribes a punishment up to five years in jail for posting “fake news” about government officials, the military and judiciary on social media.

Human rights groups have said the Prevention of Electronic Crimes (Amendment) Ordinance 2022 is merely a tool to curb freedom of expression in the South Asian country.

A couple of months ago, Amnesty International and Human Rights Watch said the Pakistan government’s amendment to its cybercrimes act is the latest in a concerted campaign to restrict freedom of expression and stifle dissent, On February 18, 2022, the government passed an ordinance amending the Pakistan Electronic Crimes Act, 2016 (PECA) to make online “defamation” of authorities, including the military and judiciary, a criminal offense with harsh penalties.

“PECA has been used to silence freedom of expression on the pretext of combating ‘fake news,’ cybercrime, and misinformation,” said Nadia Rahman, Acting Deputy Regional Director for South Asia at Amnesty International. “This amendment not only violates the Pakistan Constitution, but also puts anyone who questions the government or other state institutions at further risk. It particularly targets journalists, human rights defenders, and political opponents who run the risk of prosecution for merely doing their jobs.”