ISLAMABAD - The Islamabad High Court (IHC) Wednesday halted the government from arresting people under section 20 of the Prevention of Electronic Crimes (Amendment) Ordinance, 2022.

A single bench of IHC comprising Chief Justice of IHC Justice Athar Minallah issued the directions while hearing the petition of Pakistan Federal Union of Journalists (PFUJ) challenging the recently promulgated Prevention of Electronic Crimes (amendment) Ordinance, 2022.

The bench stated that the Federal Investigation Agency, the executing agency under the Act of 2016, has already submitted SOPs before this court regarding the mode of exercising powers in relation to complaints under the offence described in section 20.

It added that according to the prescribed SOPs, a person is not to be arrested without giving the latter a reasonable opportunity and conclusion of the inquiry contemplated under the Federal Investigation Agency Act, 1974.

Justice Athar noted in the written order, “This Court, therefore, expects that the FIA will ensure that the SOPs are strictly complied with in cases of complaints alleging acts amounting to the offence described under section 20 of the Act of 2016.”

“The Director General, FIA, and the Secretary Interior shall be responsible if the liberty of a person is breached in violation of the SOPs submitted before this Court as well as the august Supreme Court,” maintained the IHC Chief Justice.

He mentioned that through this petition, PFUJ assailed the vires of the Prevention of Electronic Crimes (Amendment) Ordinance, 2022 notified in the official gazette on 18.02.2022, whereby amendments have been made in various provisions of the Prevention of Electronic Crimes Act, 2016. The amendments have been, inter-alia, introduced in section 20 of the Act of 2016.

The petitioner’s counsel contended that promulgation of the impugned ordinance is in violation of the scheme of the Constitution of the Islamic Republic of Pakistan, 1973. He further contended that promulgation of the impugned Ordinance is in the nature of “colourable legislation”.

The counsel stressed that many sovereign states have decriminalized the offence of defamation including Zimbabwe, Congo and Uganda. He contended that the vires of section 20 of the Act of 2016 have already been challenged and the matter is pending before the court.

The IHC bench directed the registrar office to issue notice to the Attorney General for Pakistan in terms of Order XXVIIA of the Code of Civil Procedure, 1908. It further directed to relist the petition alongwith the other petitions wherein vires of section 20 of the Act of 2016 have been challenged on February 24.

Justice Athar also said that the Court expects that the Attorney General will assist the Court, interalia, regarding interpretation of Articles 19 and 19-A of the Constitution in the light of Article 19 of the International Covenant on Civil and Political Rights read with the United Nations Human Rights Committees General Comment no. 34, which was finalized on July 21, 2011.

He noted that the States parties have been urged to decriminalize defamation. “It has been explicitly stated that, in any case, imprisonment or arrest even in criminalized defamation is ‘never an appropriate penalty’. The Attorney General is also expected to justify introducing amendments through an ordinance promulgated under Article 89 of the Constitution, which, prima-facie, appears to have the effect of making an already criminalized defamation more oppressive and draconian,” added the IHC Chief Justice.

He continued that the likely consequences for freedom of expression and right of access to information appear to be profound and not consistent with the fundamental rights guaranteed under Articles 19 and 19-A of the Constitution. The protection of a private person’s reputation can definitely not outweigh the right of free speech in a democratic society governed under the Constitution.

The bench said that the Attorney General is also expected to justify how the offence of criminalized defamation can be resorted to by public office holders, whether or not elected, and the institutions/organs of the State.