ISLAMABAD: The government seems to have woken up to the fact that promulgation of a controversial presidential ordinance amending the cybercrime law was ill-timed, as it sought time from the Islamabad High Court (IHC) to check the abuse of power of arrests by the Federal Investigation Agency (FIA).

IHC Chief Justice Athar Minallah resumed hearing on petitions filed by the PML-N, PPP, journalists’ representative bodies and former senator Farhatullah Babar challenging amendments to the Prevention of Electronic Crimes Act, 2016 (Peca).

At the outset, Justice Minallah stated that prima facie, the Peca is a draconian law. He noted that political parties should not have invoked the jurisdiction of the court since they could decide such issues within parliament. He proposed the ordinance be laid before the Senate and the petitions would remain pending till the Upper House decides its fate. He also sought an assurance from the attorney general that in the meanwhile the government would not make any arrests under the law.

Attorney General of Pakistan (AGP) Khalid Jawed Khan sought time for the federal government to ensure safeguards against the FIA’s abuse of power while dealing with defamation complaints under Section 20 of Peca. He however assured the court that since the IHC has already issued directions to the FIA to abide by the standard operating procedures to conduct inquiries, the government would make sure the agency did not make arrests indiscriminately.

The AGP however argued that neither criminalisation of defamation nor the amendments to Peca were incompatible with the fundamental rights under articles 19 and 19-A of the Constitution.

The court informed the AGP that based on record the gross abuse of powers of the FIA was restricted to complaints of attacks on reputations of public office holders against critics, dissenters, political activists, human rights defenders and journalists.

Justice Minallah remarked that the court has exercised restraint expecting the FIA and the government would ensure safeguards against the abuse of powers. It appears that rather than exercising caution and taking measures against the abuse of criminalised defamation, oppressive amendments were introduced, the court noted. The likely effect of these amendments would be to discourage free speech through the rampant and widespread abuse of criminalised defamation sanctioned through the draconian powers given to the FIA under the ordinance.

Arrest or imprisonment in complaints of defamation raises the question whether the threshold of “reasonable restriction” under articles 19 and 19-A has been met, the court order said. It may be justified only in exceptional circumstances such as hate speech or incitement to violence, but definitely not when it could breach or discourage free speech to protect a private individual’s reputation, it added.

Therefore, the criminalisation of defamation and the ordinance do not meet the threshold of “reasonable restriction” and are incompatible with the fundamental rights under the Constitution, the court order reads.

Justice Minallah also pointed out that public bodies did not enjoy protection of fundamental rights under the Constitution; their existence is solely to serve the people and a test of their performance is the confidence reposed in them by the people. Therefore, public bodies cannot claim immunity from scrutiny and accountability by the public.

He observed that the vires of the ordinance also has to be justified on the jurisdictional preconditions prescribed under Article 89 of the Constitution and whether the circumstances rendered it necessary to exercise powers under Article 89 and circumvent the legislative process within parliament.

Would an unjustified circumvention not be a fraud upon the Constitution, particularly when it violates one of the most important fundamental rights under Article 19, the court noted. Subsequently, the AGP was asked to satisfy on the next haring why the court shouldn’t declare the criminalisation of defamation under Section 20 of Peca and the oppressive amendments introduced through the ordinance “unreasonable restriction”, incompatible with the fundamental rights guaranteed under the Constitution and liable to be struck down.

Further hearing was adjourned till March 3.

Published in Dawn, February 25th, 2022