ISLAMABAD: The Islamabad High Court (IHC) on Monday observed that “criminalisation of defamation and its abuse, prima facie, appears to be in violation of the Constitution” and the “threat to free speech… cannot be tolerated in a democratic society governed under the Constitution”.

IHC Chief Justice Athar Minallah made these observations while hearing the petitions filed by media personality Mohsin Jameel Baig and his spouse against the registration of FIRs against Mr Baig under the Anti-Terrorism Act (ATA) and Prevention of Electronic Crimes Act (Peca).

During the hearing, Justice Minallah issued a show-cause notice to the Federal Investigation Agency’s cybercrime wing director for “wrongly” invoking Peca sections against Mr Baig.

The court noted that the abuse of powers vested in the FIA under the 2016 law has been rampant, widespread and remains unabated despite repeated observations and directions by the court in several pending matters, adding that 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.

Court says officials’ repute can’t be protected by abusing state power, treating criticism as a crime

The chief justice called it 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”.

The court order stated 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 effects on free speech and democratic accountability”.

The consistent abuse of Peca 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, the court order stated, adding that criminalisation of defamation and its abuse appeared to be in violation of the Constitution and fundamental rights.

The government and public office holders are in a dominant position. The limits of acceptable criticism are wider for a public official than private citizens and they cannot be perceived or seen as complacent to the rampant abuse of the criminal offence of defamation, it further said.

The criminal offence of defamation, therefore, cannot be resorted to by public office holders to protect their reputations let alone resorting to abuse of powers vested in a state-controlled agency or institution such as the FIA, the court noted.

Justice Minallah observed that “the 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”.

He called Mohsin Baig’s case as well as those pending “classic examples to, prima facie, show that criminalisation of defamation is violative of the constitutionally guaranteed rights and contrary to public interest”.

According to the chief justice, the “reputation of public office holders cannot be protected through abuse of oppressive State power nor can criticism, regardless of its harshness, 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 court, meanwhile, asked Mr Baig’s counsel to approach the ATC against the FIR registered against him under the ATA.

Chief Justice Minallah was hearing the petitions filed against registration of FIRs against Mr Baig under Peca and ATA by the FIA and Islamabad police.

Islamabad Advocate General Niazullah Niazi submitted reports of the district magistrate and Islamabad inspector general on the alleged torture on Mr Baig.

The district magistrate stated that FIA’s cybercrime wing raided Mr Baig’s house to execute the “search-and-seize warrant” issued by Lahore Judicial Magistrate Ghulam Murtaza Virk. However, the police helpline 15 received a call about an attack on the FIA raiding team following which the Margalla station house officer reached the spot. Mr Baig was arrested and shifted to the police station concerned.

Justice Minallah inquired from cybercrime wing director Babar Bakht Qureshi why he had misused his authority.

Mr Qureshi replied that the investigation agency can proceed against a suspect in certain circumstances even without conducting an inquiry, adding that sometimes a suspect could destroy evidence if not arrested before conducting the inquiry.

“Do you think there is no rule of law?” Justice Minallah questioned. “Has a martial law been imposed in this country?”

The CJ expressed displeasure over the FIA’s response, asking why they considered themselves above the law and Constitution. “Why shouldn’t the court proceed against the FIA for contempt of court,” he asked.

The court directed Mr Qureshi to explain why proceedings may not be initiated against him or other officials for violating the standard operating procedures for conducting an inquiry under Peca, and the unambiguous assurances given before the court of ensuring safeguards against abuse of offences under the 2016 law, which criminalised defamation.

Additional Attorney General Qasim Wadud conceded before the court that the FIA should not have invoked Section 21 of Peca against Mr Baig.

Justice Minallah directed Qureshi to submit a reply after the perusal of which the court would decide whether or not to proceed against him for contempt. Regarding invoking of terrorism charges against Baig for attacking the FIA personnel, the court asked the defence counsel to take up the matter with the ATC.

The court also issued a notice to the attorney general asking him to “satisfy the Court that the rampant abuse of criminalised defamation under the Act of 2016 is not violative of the scheme of the Constitution and the fundamental rights thereunder, particularly guaranteed under articles 19 and 19A. If the answer is in the affirmative then the ensuing consequences. The challenge to vires of offences under the Act of 2016, which have criminalised defamation, is already pending before the court”.

Further hearing in the case was adjourned till Feb 24.

Meanwhile, the ATC extended the physical remand of Mohsin Baig for two more days.

Published in Dawn, February 22nd, 2022