New media law ignites heated debate

ISLAMABAD/ KARACHI: The signing of two ordinances by President Dr Arif Alvi on Sunday, making changes in the Prevention of Electronic Crimes Act, (PECA) 2016, and the Elections Act, 2017, ignited a heated debate in the media about the consequences of the government move.

The laws were signed by the president after the cabinet approved them. The changes made in the electronic crimes act have been made under the Prevention of Electronic Crimes (Amendment) Ordinance, 2022. Under the ordinance, the definition of a “person” has been broadened to include any company, association, institution, organisation, authority, or any other. Furthermore, anyone found guilty of attacking a person’s “identity” will now be sentenced to five years instead of three years.

The ordinance also states the informant or the complainant shall be “aggrieved person, his authorised 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”.

Cases falling under PECA will be supervised by a high court and the trial court will have to conclude the case within six months. “The court shall submit a monthly progress report of any pending trial to the high court concerned and shall give reasons for the inability of the court to expeditiously conclude the trial,” says the ordinance.

Apart from sending the report to the high courts, copies of the progress report will be sent to the law secretary if the case is registered in the Islamabad Capital Territory. However, if a case is registered in a province, then the copies of the report will be submitted to the “provincial secretaries of prosecution departments, the prosecutor general or advocate general”.

The ordinance also authorises the high court to issue “fresh timelines” of a case if it finds the “reasons” given by the trial court “plausible” and beyond its control. The ordinance also empowers the high courts to summon federal or provincial government officers to remove any “difficulties, hindrances and obstacles” it finds in the case.

If the law secretaries find that the case was delayed due to the “presiding officer or any of its functionaries” then they may inform the high court. If the high court is of the view that the delay in the disposal of a trial is attributable to the presiding officer of the court or any other court functionary then they can initiate or “direct commencement of appropriate disciplinary proceedings”.

The ordinance also empowers the chief justice of every high court to nominate a judge along with other officers. The other ordinance signed by the president makes changes in Section 181 of the Election Act, 2017. The amendments have added a new section titled 181 (A) in the law.

The new law allows a member of “parliament, provincial assembly or elected member of local government, including member holding any other office under the constitution or any other law, will be allowed to visit or address public meetings in “any area or constituency”.

Separately, Federal Minister for Law and Justice Barrister Muhammad Farogh Naseem said the latest ordinance, promulgated to amend the Prevention of Electronic Crimes Act-2016, is only aimed at preventing dissemination of fake news by making it a criminal offence as per the Constitution to foil the designs of the enemies of Pakistan.

Speaking at a press conference here on Sunday, the minister clarified that the latest ordinance was not aimed at targeting bona fide working journalists, who were sincere with their profession and not involved in spreading fake news.

The minister gave the examples of former chief justice of Pakistan Gulzar Ahmed against whom utterly false news containing foul language was spread besides the case of the First Lady of Pakistan as propaganda was done claiming that she had separated from Prime Minister Imran Khan.

The minister said legislation was necessary to stop the fake news, adding fake news was published that First Lady had left home. Some people, who are not in fact journalist, are claiming to be journalists, he said.

He said false propaganda had been spread in the past, particularly against the sitting judges. Those behind such malicious campaigns knew very well that the honourable persons associated with the judiciary would never come forward to initiate lawful action against those involved in tarnishing their reputation.

“It is high time that whatever wrong has been committed in the past shouldn’t happen anymore as Pakistan should be put on the right path and its foundations should remain correct,” said the minister as he clarified that the latest ordinance didn’t deprive anyone of its right to do criticism against the government, which was a fundamental right of every citizen enshrined in the Constitution. He said the elements involved in disseminating the fake news could never be loyal to their motherland as their aim was to cause commotion in Pakistan.

He mentioned that dissemination of false news against Pakistan had also been the proven design of India, which had transpired from the latest instance of the EU Disinfo Lab being run by the neighbouring country.

The minister told media persons that the ordinance had been promulgated to increase the punishment of spreading fake news from three-year imprisonment to five-year jail term while such an act would also become a criminal and non-bailable offence. He said the latest ordinance also carried the provision that anyone from the public at large could become a complainant to lodge a criminal case if false news was spread against any public figure or holders of public office.

“I give the example of our great film industry actor, Nadeem. If in case someone spreads fake news about Nadeem sahib, then it is not necessary that he himself will become a complainant to pursue the case, as anyone from the general public could come forward to file a case against the spread of baseless news against the film actor,” said the minister.

He said the ordinance would make it binding upon the trial court to conclude the case lodged against the dissemination of fake news within six months. He said the amendments to the PECA Act also authorised the chief justice of the relevant high court to ask the trial court judge about the reasons if the case proceedings were not concluded within six months. Disciplinary proceedings could be initiated against a trial court judge if in case he failed to give plausible reasons for not concluding the trial within six months, said the minister.

He said the past instances involving the spread of false news against public figures had proven that it had become utterly necessary to make the unlawful act a criminal and cognizable offence whose trial should be concluded within six months.

Barrister Farogh Naseem also gave the example of the European countries and the United States where the courts were empowered to slap fine of hundreds of millions of dollars or pounds in cases involving the spread of fake news.

He said the latest ordinance was not aimed at stopping someone, particularly the opposition leaders, from criticising the authorities as fake news and criticism of the government’s working or policies were entirely two different things in most of the instances. He, however, conceded that there were certain grey areas in this regard that need more explanation.

To a question, the minister said he didn’t agree to the notion that the days of the present government were numbered but if in case certain elements thought that they could secure a majority in the National Assembly, then they should come forward and form the government as per the Constitution.

“And if I agree to your notion that our days in government are numbered, then such an ordinance would not suit us if we were to soon sit on the opposition benches,” he told the questioner.

To another question, he said the latest ordinance was not aimed at trampling upon the powers of any other state authority like the Pakistan Electronic Media Regulatory Authority (PEMRA) as all over the world defamation law, PEMRA-like agencies and the law to initiate criminal proceedings against the spread of fake news "separately exist".

Answering a query, Barrister Farogh Naseem said it was entirely up to the courts to do the needful interpretation if they wanted to apply the latest ordinance retrospectively to deal with the past instances of spread of fake news.

However, the opposition parties, Pakistan Federal Union of Journalist (PFUJ) and Human Rights Commission of Pakistan (HRCP) on Sunday rejected the promulgation of presidential ordinances for amending the Prevention of Electronic Crimes Act 2016 (PECA 2016)

The Pakistan Muslim League Nawaz (PMLN) and Pakistan People’s Party (PPP) said that the legislation through ordinance amounts to denying a national debate and depriving Parliament of its constitutional right of legislation and condemned misuse of all such laws to silence dissent.

Both the opposition parties lashed out at the government on promulgating the PECA 2016 while rejecting the amendment to social media laws, fearing that the laws would only be used against the opposition and media. They vowed to challenge ordinance in Parliament.

PMLN Vice President Maryam Nawaz Sharif, while reacting to the promulgation of Presidential ordinance amendments in the PECA 2016, and the Elections Act 2017, tweeted: “Whatever laws this government is making are meant to silence the media and the opposition, but these laws are going to be used against Imran & Company. Don't say that you hadn't been warned.”

Commenting on the promulgation of the presidential ordinance, former Senate chairman Mian Raza Rabbani said the amendments to the electronic crimes law amount to denying a national debate and depriving Parliament of its constitutional right to legislate.

Raza Rabbani said since 2018, the government has taken systematic steps to apply censor to online content through the, “Citizens Protection (Against Online Harm) Rules 2020” and the “Removal and Blocking of Unlawful Online Content (Procedure, Oversight and Safeguards) Rules 2020”. “Such Rules were opposed by journalists and digital rights groups,” he said.

He said that the proposed legislation converts bailable offences to non-bailable offences. “The punishment for defaming a person or an institution on social media from two years is being increased to five years and this is condemned,” he added.

He said this is placing fetters on the fundamental rights of the citizens and cannot be done without a national debate i.e. through legislation in Parliament. “The president should not have signed the ordinances, as under Article 50, Constitution, 1973, he is a part of Parliament, here Parliament is being denied the right to legislate and fundamental rights are being curtailed outside of Parliament,” he said.

PPP Parliamentary Leader in the Senate Sherry Rehman, meanwhile talking with The News, said that “we condemn misuse of all such laws to silence dissent”.

“This is not about regulating fake news, but shutting down criticism. If this was a genuine initiative to curb fake news then stakeholders and journalist bodies would have been taken on board,” she said.

Instead, she said, this government runs troll farms on taxpayer money and has single-handedly been responsible for lowering the tone of public discourse in Pakistan.

Sherry said that journalists are harassed, picked up, tortured and taken off air in unprecedented numbers, making Pakistan a hostile country for dissent. The PTI has created a republic of fear with its draconian laws and suppression of democratic rights and freedom of expression. “We all know that Article 89 of the Constitution allows the president to promulgate an ordinance only if he is satisfied that “circumstances exist which render it necessary to take immediate action,” she said.

She said that unsurprisingly the law minister made no mention of this requirement in his fervent defence of the ordinance factory the president rubberstamps.

PMLN Senator Irfan Siddiqui said that amendments to the PECA 2016 would be used against the opposition and against the freedom of media. “We reject it and all the opposition will formulate the joint strategy against it in Parliament,” he said.

Chairman National Assembly Standing Committee on Information Mian Javed Latif said Pakistan Media Development Authority (PMDA) bill is being implemented in a new form through PICA Amendment Ordinance. “In a society where criticism ceases no reforms could take place,” he said.

He said this act of the government reflects their motive to mute the voices and dictatorial thinking as they used to raise the voice for presidential system and sometime talks about to abolish 18th Amendment. “We will not allow any legislation against freedom of expression and basic human rights,” he said.

Also on Sunday, addressing a press conference in the federal capital along with the PPP’s Media Coordinator Nazir Dhoki, Sindh Information Minister Saeed Ghani rejected the ordinance to amend the Prevention of Electronic Crime Act 2016 laws and that said the amendments to PECA laws are dangerous and these amendments are an attempt to ban the freedom of expression.

Ghani said that in the political history of Pakistan the PTI has told most lies and no one spread false news more than PTI. “The most ridiculous things on social media are being shared by PTI and if the government insists on implementing such laws then it should be implemented from 2010 and let's take action against those who have spread false news since 2010.

In a joint statement on Sunday, the Pakistan Federal Union of Journalists (PFUJ) leaders have expressed serious concerns over the reported approval of the federal cabinet to make draconian amendments to the PECA 2016 through an ordinance.

PFUJ President Shahzada Zulfiqar and Secretary General Nasir Zaidi said that it is alarming that instead of reforming existing laws to enforce constitutional guarantees of freedom of expression and right to information, the laws are being amended further to make them more coercive aimed at eroding these rights.

“All the stakeholders, including the media community and civil society have been agitating for and demanding withdrawal of black clauses in PECA 2016 that are against civil liberties and basic human rights ensured in both the United Nations Charter and the Constitution of Pakistan, but it appears that the government is now making the laws more regressive in the name of dignity and security of institutions,” they said.

“There are already clear provisions in the Constitution protecting the integrity and dignity of the judiciary and the armed forces, so why the need for further coercive measures,” they asked.

The PFUJ leadership pointed out that the courts can use all available relevant laws to punish anyone involved in intentionally vilifying or defaming any institution with a mala fide purpose while any citizen can be prosecuted under the Defamation Act for any similar grievance, and therefore there was no need to amend PECA for enhancing punishments.

“It appears that the government is driven by mala fide intentions as the proposed amendments, especially without any parliamentary inputs, are designed to further shrink the space for freedom of press and expression which is already deeply compromised as evinced by various media freedom indexes,” the statement said.

The PFUJ leaders said despite this if the government is still determined to introduce such harsh provisions and punishments then people would be forced to conclude that the PTI-led government is on a mission to silence all critical voices.

The PFUJ leaders vowed to challenge this proposed ordinance in court besides launching a countrywide protest against its issuance. “This government action is unwarranted and deplorable and undermines democratic, political and media freedoms,” they added.

They also appealed to all media, journalists, civil society and political parties, as well as saner voices within the PTI, to register their protest against this proposed ordinance and block it in the Parliament for saving democracy and freedom of expression and to prevent Pakistan’s further backsliding in international media freedom indexes.

The HRCP said that the amendments to PECA are undemocratic and will inevitably be used to clamp down on dissenters and critics of the government and state institutions.

“HRCP deplores the proposed laws that will increase the jail term for online criticism of the state by citizens from two to five years, and make it a non-bailable offence. Not only is this legislation undemocratic, but it will also inevitably be used to clamp down on dissenters and critics of the government and state institution. All government and state functionaries are reminded that they are accountable to citizens as elected representatives and public servants, respectively. It is their job to heed criticism. With other problematic laws in place to counter defamation, the proposed ordinance must be rolled back immediately, it said in a statement.