IHC to resume hearing in petitions challenging Prevention of Electronic Crimes Ordinance today

ISLAMABAD   -   The Islamabad High Court (IHC) will Monday (today) resume hearing in identical petitions challenging vires of the Prevention of Electronic Crimes (Amendment) Ordinance, 2022. A single bench of IHC comprising Chief Justice of IHC Justice Athar Minallah will conduct hearing of the petitions filed by Pakistan Federal Union of Journalists (PFUJ), Pakistan Broadcasters Association, Council of Pakistan Newspaper Editors (CPNE), Pakistan Peoples Party (PPP) leader Farhatullah Babar and others challenging the recently promulgated Prevention of Electronic Crimes (Amendment) Ordinance, 2022. Previously, the bench had summoned the Attorney General for Pakistan (AGP) to appear before the court in person in this matter. During the last hearing, the counsel representing Pakistan Broadcasters Association (PBA) and other media bodies informed the court about the impact of the controversial PECA ordinance on the independence of judiciary. Their counsel Muneer A Malik Advocate said that Article 144-A of PECA undermined the independence of the judiciary and the judges. He adopted the stance that the amendment to PECA makes it incumbent upon courts to conclude trials within six months and furnish monthly progress reports of pending trials, and orders federal and provincial officials to remove any obstacles that may hinder the progress of the proceedings.

Malik contended that the ordinances are issued through executive power which could be subject to judicial review. According to the lawyer, the Constitution allowed the issuance of ordinances under Article 89 in cases of emergency.

Then, he shared a screenshot of President Arif Alvi’s Twitter account with the court saying that the President summoned a session of Parliament on February 18 whereas the ordinance was also issued on the same day.

Adil Aziz, the PFUJ lawyer, informed the court that the session of the National Assembly was postponed which showed the mala fide intention of this law.

Usama Khawar the counsel for Farhatullah Babar said that Article 19-A that is related to freedom of speech did mention some limitations but they are pertaining to national security, blasphemy, provocation, and contempt of court.

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 and 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.

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 pressurise the judges hearing the cases.

He further argued that the satisfaction of the President as to the existences 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 mala fide 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.

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