Declaring as ‘unconstitutional’: IHC strikes down Peca ordinance

ISLAMABAD: The Islamabad High Court (IHC) on Friday declared the Prevention of Electronic Crimes Act (Peca) 2016 Ordinance "unconstitutional." The court instructed the federal government to investigate the abuse of law and submit a report in 30 days.

The petition against the Peca ordinance was heard by IHC Chief Justice Athar Minallah. The petition was filed by the Pakistan Federal Union of Journalists (PFUJ). President Dr Arif Alvi promulgated an ordinance in February to amend the Peca law as the government moved (PBA), All Pakistan Newspapers Society (APNS), Council of Pakistan Newspaper Editors (CPNE), Association of Electronic Media Editors and News Directors (Aemend) and some senior journalists of the country, had filed the petition through senior lawyer Munir A Malik.

The four-page order of the IHC issued on Friday stated that free speech protected under Article 19 and the right to receive information under Article 19-A of the Constitution are essential for the development, progress and prosperity of a society and suppression thereof is unconstitutional and contrary to the democratic values.

“The criminalisation of defamation, protection of individual reputations through arrest and imprisonment and the resultant chilling effect violates the letter of the Constitution and the invalidity thereof is beyond a reasonable doubt,” said the order authored by IHC Chief Justice Athar Minallah.

The court ruled that the ordinance was promulgated in derogation of the Constitution and the fundamental rights guaranteed thereunder, particularly Articles 9, 14, 19 and 19-A. “The jurisdictional preconditions were also not in existence,” it further said.

“The Prevention of Electronic Crimes (Amendment) Ordinance 2022 and promulgation thereof is declared as unconstitutional, invalid beyond reasonable doubt and it is, therefore, struck down.”

The offence under section 20 of the Prevention of Electronic Crimes Act 2016 to the extent of the expression “or harms the reputation” and the punishment thereof is unconstitutional, invalid beyond reasonable doubt and is, therefore, struck down.

The court also quashed the proceedings against the petitioners. “The Federal government is expected to review the defamation laws, particularly the Defamation Ordinance 2002 and thereafter propose appropriate legislation to the Majlis-e-Shoora (Parliament) for making its implementation effective,” the court order stated.

IHC CJ Athar Minallah also directed the Interior Ministry to probe the conduct of the officials of the Cyber Crime Wing of Federal Investigation Agency, which had led to widespread abuse of powers and consequent grave violations of the fundamental rights of the citizens.

The secretary has been ordered to submit the report within 30 days. Pakistan Muslim League-Nawaz (PMLN) Spokesperson Marriyum Aurangzeb welcomed the IHC's decision of declaring the Peca ordinance unconstitutional. Congratulating the journalists, civil society, media houses and public, the PMLN spokesperson called the decision “commendable”.

Aurangzeb congratulated the journalist associations and said: “The judiciary has decided that no one can control the media and people." She added that the "Constitution protects the liberty of people which includes freedom of speech and democracy."

Calling the Peca ordinance a “black law”, Aurangzeb said it was "an expression of Imran Khan's fascism and dictatorship and he will always be condemned for this." She further said the high court has played a role in protecting the Constitution.

Talking about the IHC's decision, Pakistan Peoples Party (PPP) Parliamentary Leader in the Senate Sherry Rehman said that “it just got a little easier to breathe in Pakistan.” Taking to Twitter, the senator wrote: “Islamabad High Court declared both ordinance and amendments in cybercrime laws illegal & violative of constitutional provisions.”

“Chief Justice Minallah ordered secretary interior to probe misuse of the law by officials,” added Rehman. PPP Parliamentarians Central Information Secretary Shazia Atta Marri said “we congratulate the entire nation and the journalist community over this constitutional victory.” She said that IHC decision is an immense pleasure to all of us because selected Imran Khan Niazi, like dictators of the past, wanted to snatch freedom of expression. “Imran Khan government has turned the President House into a centre of conspiracies,” she added.

Muttahida Qaumi Movement-Pakistan (MQMP) also welcomed the IHC decision, saying that it stands with the journalist organisations. In a press statement, the MQMP said that they considered the Peca ordinance a bid to asphyxiate the freedom of expression.

The PFUJ also welcomed the IHC verdict. In a statement issued here, PFUJ President Shahzada Zulfiqar and Secretary General Nasir Zaidi said that the decision was a victory of all democratic forces and champions of human rights. "The journalist fraternity especially deserves appreciation as it was the first to spring into action, taking notice of the ordinance, involving all the stakeholders and civil society and approaching the court against the black ordinance."

The PFIJ activists staged protests across the country, making it clear that they would not be accepting such a draconian ordinance, the leaders said, adding that the verdict would go a long way in protecting press freedom besides deterring governments from violating the Article 19 of the Constitution. The journalists’ leaders vowed to resist any move on part of government in the future that might threaten the freedom of expression. “We salute the judiciary and thank it for ensuring implementation of the Constitution and striking down this unconstitutional ordinance,” they added.