Draconian in nature, PECA is worse than NAB law: IHC CJ

ISLAMABAD: Islamabad High Court (IHC) Chief Justice Athar Minallah on Thursday observed that the Pakistan Electronic Crimes Act (PECA) Ordinance 2022 was "draconian in nature", adding that it was even worse than the National Accountability Bureau (NAB) law.

During a hearing of pleas against the new ordinance that makes defamation a non-bailable and a criminal offence, he remarked that it was concerning for the court how ordinances were promulgated to make the laws draconian.

The IHC CJ said the PECA law was only used to target critics of the government, adding, “It is being said with regret that the proceedings [under PECA] were initiated against individuals who criticised the government”.

He said, “It does not look like this is happening in a democratic country.” The court also referred to a case against a neighbour of a PTI lawmaker over criticism. “The FIA harassed the said person,” the court said, calling it a “shocking case”.

There are 14,000 complaints pending with the FIA, but only the government’s rivals were being targeted, it added. “Why shouldn’t the court declare Section 20 of PECA null and void,” the IHC CJ said, adding that such decisions have been taken by courts across the globe.

The chief justice said how can a party, PTI, that rose to fame due to the support it garnered on the social media make such legislation. Furthermore, he blamed the political parties and workers for “whatever is happening on the social media”. The judge said that the political parties, except the Jamaat-e-Islami, encourage their workers to troll and hurl accusations against opponents on the social media

“Why are political parties afraid of dissent when they themselves have established social media cells,” the court asked. The state institutions do not have fundamental rights, how can they be included in the aggrieved parties, the court further said, adding that the public bodies shouldn’t be afraid of criticism.

He said if the executive was so concerned about its repute then it should remove the “public office holders” from the law. The IHC CJ told the opposition parties to play their role against the PECA ordinance in parliament instead of making petitions in the court. “This court respects parliament and will not initiate proceedings at the request of the political parties,” the IHC CJ said, adding that the government made the ordinance and it should let Senate “accept or reject” it.

The PECA ordinance was challenged by the PPP and PMLN along with media bodies and superior bar councils. Addressing the opposition, the IHC CJ said: “You have a majority in the Senate... you have the power to reject the ordinance.”

The judge also questioned the urgency to bring the ordinance, saying it was in contrast to Article 19 of the Constitution. Media personality Mohsin Baig’s lawyer Latif Khosa said the National Assembly session was postponed for the sake of the ordinance.

During the hearing, the IHC CJ grilled the Federal Investigation Agency (FIA) for abusing its powers in cases against the critics of the government. The IHC CJ said before the amendment to the PECA law, in every case that came before this court, the FIA had abused its authority in complaints involving public office holders. The judge maintained that through this ordinance, the government is giving the FIA powers to arrest anyone and put them in jail till the conclusion of the trial. “The court has no hesitation in saying that the ordinance is a draconian law,” he added.

The FIA has been reduced to saving the reputation of office holders, said CJ Minallah, asking whether the agency had nothing else to do. He said the ordinance will result in self-censorship, adding that the law was even worse than the National Accountability Bureau (NAB) law. “People will stop writing out of fear of this law,” he added.

Speaking further about the FIA, Justice Minallah said the cybercrime agency had submitted SOPs for arrest in the court, but it still did not follow them. “Such is the highhandedness of the FIA,” he added.

The IHC said the FIA picked up two journalists from Lahore under the PECA law. “These journalists were picked up in a manner that they were not even told the reason for their detention,” the court said, adding that they remained “disappeared” for quite some time. When asked about the arrests, the FIA said a complaint was registered against them.

Justice Minallah said one of the journalists was picked up for quoting a history book in his vlog. “Now, it is not even allowed for anyone to cite history,” he questioned. The attorney general for Pakistan (AGP) contested, saying this did not happen.

The CJ also remarked on the confiscation of Mohsin Baig’s laptop from his house, saying the government was even targeting the “sources of journalists” even though media persons are not asked about their sources.

The judge reiterated that defamation laws were being decriminalised across the world as he gave examples of Britain and Uganda. The attorney general responded that there were many countries where the law was not decriminalised. Attorney General of Pakistan Khalid Jawed Khan said Section 20 was not unconstitutional.

He, however, added that there was a need to provide safeguards against the misuse of the law. He said he would meet the prime minister as he has a “plan” for changes in the law. He further said the law would not apply to political speeches. The IHC CJ, however, asked him to ensure that the law would not apply to all types of speech.

The AGP said he will take up the issue with the cabinet members. Subsequently, the hearing in the case was adjourned till March 10. Separately, Pakistan Muslim League Nawaz (PML N) challenged the PECA ordinance in the Islamabad High Court, asking the court to declare it unconstitutional. The ordinance has been challenged in the IHC by PMLN spokesperson Marriyum Aurangzeb, who also made secretary law, secretary president of Pakistan, secretary IT and DG FIA as respondents in the case.

It plea highlighted that Section 37 (1) of the PECA Act 2016, which carries the definition of integrity, security and defence, is vague, overboard and unconstitutional, therefore, the court should provide relief that it deemed necessary.

Also, PECA ordinance has been challenged in the Balochistan High Court (BHC). A constitutional petition has been filed by Balochistan Bar Council (BBC) and Balochistan Union of Journalists (BUJ) with deputy registrar high court in this regard.

Talking to the media before filing the petition, Chairman Executive Committee Balochistan Bar Council Rahib Baledi said PECA was a draconian law, which was tantamount to undermining freedom of expression. People of Balochistan, lawyers and journalists have rejected the ordinance.

President PUJ Iran Saeed said the government had taken in haste the step regarding PECA amendment ordinance. This law is a bid to gag the voice of media, he added.