A recent report of the Human Rights Commission of Pakistan (HRCP) – Rethinking the Prevention of Electronic Crimes Act – notes that the Prevention of Electronic Crimes Act (PECA), 2016 was enacted with the “purported agenda to curb terrorism and hate speech online and save women from harassment”. However, this report argues that the Act “has failed to achieve these purported agendas. Instead, the law has been used to persecute dissidents and enable censorship, and further entrench a patriarchal system to silence women.”

This situation is also evident from the fact that, only in 2020, more than 13 cases were initiated by the Federal Investigation Agency (FIA) under PECA against journalists and human rights defenders for their online exercise of freedom of expression. In most of these cases, Section 20 of the PECA (offence against dignity of a natural person) was invoked. This section makes “exhibition or display or transmission of any information” which “harms the reputation or privacy of a natural person” (online defamation) an offence punishable with imprisonment for up to three years and/ or fine of up to one million rupees.

However, this offence was non-cognizable and bailable. The law required the investigation agency to follow the process of inquiry into the complaint, explicit notice about the complaint to the alleged accused/ suspect and afford her/ him due opportunity of being heard before converting the complaint into a criminal case. No arrest was permissible without court permission.

It is noteworthy that in most of the cases where proceedings were initiated against journalists and media persons under this section the FIA did not adhere to the due process of law. Ironically, houses of journalists were raided (Arshad Sulehri) without any intimation. They were picked up by the FIA without giving them notice and due opportunity of being heard (Imran Shafqat and Amir Mir). Cases were initiated against them on mere referral to historical facts in tweets and social media posts (Bilal Ghauri).

When the proceedings were challenged at the High Court level, in almost all such cases, the courts reprimanded the FIA and directed it to follow the due process of law. In Rana Muhammad Arshad versus Federation of Pakistan (PLD 2021 Islamabad 42), the Islamabad High Court asked the agency to prescribe “special guidelines regarding proceedings against persons engaged in the profession of journalism on account of the profound effect on the freedom of Press and independence of a journalist.”

In this landmark judgment, the court held that “[f]reedom of speech and expression is the most cherished human right and fortifies the other constitutionally guaranteed rights. Blocking, inhibiting or limiting free speech and thus undermining freedom of the Press are hallmarks of regressive states and are unacceptable in a society governed under a constitution, which guarantees fundamental rights. When these rights are denied to the people, or are allowed to be breached by state functionaries, then other constitutionally guaranteed rights are also profoundly affected.”

The FIA can now arrest anyone whose social media post, a tweet, a WhatsApp message or an interview, a comment or a question in a television or radio programme is not according to the whims and wishes of those in power.

The court also mentioned that “an apprehension or fear [of being arrested] in the mind of a person who is engaged in the occupation of reporting and dissemination of information to the public not only undermines the independence of the occupation but is intolerable in a society governed under [the] constitution.”

However, despite the court directions, the FIA continued non-adherence to its own standard operating procedures (SOPs), which the agency submitted before the Supreme Court and the Islamabad High Court, for inquiry and investigation of complaints under Section 20 of the PECA. The latest episode of such non-adherence was seen on February 16, when the FIA raided the house of Mohsin Jamil Baig, editor-in-chief of the daily Jinnah and Online News Agency, in Islamabad after just 30 minutes of the registration of the first information report (FIR) against him under Section 20 and 21(1)(d) of the PECA in Lahore.

The Islamabad High Court, while admitting the petition filed on behalf of Mr Baig, said: “[r]eputation 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. Criminalisation of defamation and its abuse, prima facie, appear to be in violation of the constitution and the fundamental rights guaranteed thereunder.”

While adjudication of the case was pending, the Federal Government introduced the infamous Prevention of Electronic Crimes Ordinance, 2022 on February 19. This presidential ordinance has made Section 20 – an already problematic provision of PECA for free speech – a more draconian one by enhancing punishment from three years to five years imprisonment and making it a cognizable, non-bailable and non-compoundable offence.

Besides, the ordinance has added the definition of “person”, which includes “any company, association, or body of persons whether incorporated or not, institutions, organisations, authority or any other body established by the government under any law or otherwise.” Now, public sector organisations and institutions, which otherwise are subject to public accountability and do not hold right to reputation and privacy, will have the same level of ‘reputation and privacy’ as is meant for a natural private person.

Furthermore, the ordinance authorises anyone to file a complaint on behalf of any ‘aggrieved’ person, natural or legal, under the amended Section 20. Moreover, the ordinance removes immunity available to television programmes from the operation of the PECA. Now, this special law, which was meant for cyberspace only, is applicable beyond the cyberspace and internet.

The FIA, which is a federal agency operating under the Ministry of Interior, can now arrest anyone (on a complaint of any real or fictitious/ anonymous person or without any formal complaint) whose social media post, a tweet, a WhatsApp message or an interview, a comment or a question in a television or radio programme is not according to the whims and wishes of those in power.

Leaving aside the critical issues of alleged human rights violations by security and intelligence agencies, simple comments about the efficacy of Sehat Card, glitches in Single National Curriculum, transparency in Tosha Khana proceeds, malpractices in allocation of subsidies for basic household items and utilities, quality of construction of roads and public sector infrastructure etc, can put one behind bars. Public accountability and the people’s right to know, which are the hallmarks of a democratic governance, are now declared offences.

Nevertheless, the Islamabad High Court, in its order dated February 24, in writ petition 216/2021, has stated that “[i]t, prima facie, appears that the likely effect of the amendments would be to discourage free speech. The chilling effect that has already been created through the rampant and widespread abuse of the offence of criminalised defamation, seems to have been sanctioned through the repressive and draconian powers given to the agency pursuant to the impugned Ordinance. Criminalisation of defamation under Section 20 of the Act of 2016 and the impugned Ordinance do not satisfy the threshold of reasonable restrictions and thus they are not compatible with the fundamental rights guaranteed under Articles 19 and 19-A of the constitution.”

The writer is an  Islamabad-based media law expert and heads an  independent research and advocacy institute. He tweets @aftabalam_77