Threat to free speech can't be tolerated: IHC

ISLAMABAD: The Islamabad High Court (IHC) issued on Monday a show-cause notice to the Federal Investigation Agency's (FIA) cybercrime wing over the "misuse of power", noting that threat to free speech or abuse of oppressive and draconian powers having the effect of stifling the rights of the people, cannot be tolerated.

A bench, headed by IHC Chief Justice Athar Minallah, was hearing a case related to journalist Mohsin Baig arrest. The petition was filed by Baig's wife through the Journalist Defence Committee.

The FIA raided the journalist's house last Wednesday in the federal capital, along with the police, and took him into custody on a complaint, containing allegations of defamation, filed by Minister for Communications and Postal Services Murad Saeed.

During the hearing, the court declared the raid on Baig's house abuse of power. The court observed that the FIA was continuously misusing power on the directives of public office holders, which is alarming.

The court order written by Justice Minallah said that the consistent abuse of the Act of 2016 by the FIA has raised questions of paramount public importance. The threat of arrest can effectively discourage exposing wrongdoings and corruption of public office holders and public bodies. They exist to solely serve the people. Criminalisation of defamation and its abuse, prima facie, appears to be in violation of the Constitution and the fundamental rights guaranteed there. The government and public office holders are in a dominant position. The limits of acceptable criticism are wider for a public official than the private citizens.

"Such a role by an agency or the state in a democratic country is not tolerable," IHC CJ Minallah remarked. Justice Minallah inquired from the FIA officials about the Standard Operating Procedures (SOPs) and undertaking they had given to the high court and Supreme Court to deal with the defamation cases.

Responding to a query by the court, the cybercrime wing director apprised the court that Murad Saeed lodged the complaint in Lahore on February 15. At this, Justice Minallah inquired if the minister was visiting Lahore on the day he filed the complaint.

When asked if the FIA issued a notice to Baig upon receiving the complaint, the Cybercrime Wing Director Babar Bakht Qureshi said that no notice had been issued. "Your laws tell you to first conduct an inquiry but you didn't abide by it because the complaint was filed by a minister," Justice Minallah remarked.

The judge stated that Section 21 D of the Prevention of Electronic Crimes Act 2016 (PECA) doesn't apply to the case if the remark was made during a TV show, he added. Justice Minallah noted that abuse of powers vested in the FIA under the Act of 2016 has been rampant, widespread and remains unabated despite repeated observations and directions by the court in several pending matters. The abuse is so persistent and grave that its effect regarding fundamental rights guaranteed under the Constitution, particularly Articles 19 and 19A are likely to be profound. It is ironic that beneficiaries of such pervasive abuse are public office holders and powerful entities while the fundamental rights of the public at large are being exposed to be violated.

At this, the cybercrime wing director said that they took an action when the talk show went viral on Facebook, Twitter, and other social media. The court inquired if Baig made the clip from the TV show viral and why didn't the FIA arrest all three individuals who were present at the show.

The judge asked the official to read aloud the remark which is claimed to be aimed at defamation. The cybercrime wing director read Baig's remarks and said that it contained the reference to the book which is defamatory.

Meanwhile, the additional attorney general maintained that he had not read the book that was referred to but everyone knew what was written in it. At this, the IHC chief justice censured the additional attorney general that he was basing his argument on assumptions.

"The misuse of power doesn't prevent anyone's reputation from being tainted," CJ Minallah remarked, adding that people's trust in a public office holder was their actual reputation. He said that this court would not allow any misuse of power. "This was a public office bearer's complaint and the arrest would not be justifiable even if it was a random complaint," the CJ remarked.

The order said that it has been consistently observed and emphasised by the court that criminalising defamation has profound consequences for democratic values and free speech. Many states across the globe have decriminalised defamation because of its chilling effect on free speech and democratic accountability.

The court said: “It is noted that threat to free speech or abuse of oppressive and draconian powers having the effect of stifling the rights of the people, cannot be tolerated in a democratic society governed under the Constitution. The case in hand as well as other pending cases, are classic examples to, prima facie, show that criminalization of defamation is violative of the constitutionally guaranteed rights and contrary to public interest. Reputation of public office holders cannot be protected through abuse of oppressive State power nor criticism, regardless of its harshness, can be treated as a crime. It is inevitable to strike a balance between guaranteeing the fundamental right to freedom of expression on the one hand and protecting the reputation of individuals on the other.”

The IHC issued a show-cause notice to the FIA's cybercrime wing director and adjourned the hearing till February 24. It also summoned the Attorney General for Pakistan Khalid Javed Khan to the next hearing to give arguments in defence of FIA's case.

"[The] attorney-general should satisfy the court on abolishing the Section 21 D pertaining to this [misuse of power] offence of the PECA," the court remarked. The IHC issued the attorney general notice to satisfy the court that the rampant abuse of criminalised defamation under the Act of 2016 is not violative of the Constitution and the fundamental rights thereunder, particularly guaranteed under Articles 19 and 19A.

Moreover, the IHC directed the cybercrime wing director to submit an affidavit containing arguments for why the court should not take action against him on misuse of power. Besides, the court disposed Advocate Latif Khosa's plea seeking cancellation of the case registered against Baig. "Whatever the accused did at the time of arrest is a separate matter. The relevant court would look into it," the court remarked.