“The right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and will always be, folly; but we have staked upon it our all.” — Justice Learned Hand

PRESIDENT Alvi promulgated an ordinance, amending the Pakistan Electronic Crimes Act (Peca), 2016, last Sunday. For the uninitiated, Peca was passed in 2016 amidst concerns regarding the act being disproportionately draconian and allowing the state to muzzle dissenting views. Prime Minister Imran Khan had, at the time, said that “the right to criticise is dear to us, even when it is used to criticise PTI. It’s a right worth fighting for and this bill is truly an effort to oppress the most democratic medium of expression — the internet”.

President Alvi, then a parliamentarian, had similarly said that “Cybercrimes bill, as passed by the National Assembly standing committee is actually closer to a ‘cybercrime’ itself if allowed to pass. I will move amendments in the National Assembly”.

Fast forward to 2022, President Alvi has indeed amended the law, albeit through an ordinance. Instead of repealing provisions susceptible to abuse, however, the law now makes the state’s role even more ubiquitous. The amendment, among other things, increases Peca’s ambit by recognising companies and state institutions as aggrieved parties. The government would, thus, have the right to act against speech it deems ‘false’ and believes hurts the reputation or privacy of an institution.

Is the amendment really an attempt to curb ‘fake news’?

Additionally, the offence would be made non-bailable and cognisable. The amendment also increases the sentence from three to five years in case of an attack on the identity of any person. Parody or satirical accounts and websites too may be proceeded against. Is the amendment then a good-faith attempt to curb the proliferation of fake news or do concerns about it being an insidious attempt to muzzle all dissent hold merit?

Disproportionately curtails free speech: The purpose of guaranteeing certain fundamental rights to citizens in any democracy is to not only protect conduct and views that society approves but to also especially protect views that it finds unpleasant. The right to free speech, thus, guarantees protection from the state’s intrusion even when the speech in question is shocking, offensive and disturbing. To protect the political, security, and judicial elite from critique, hence, does not merely regulate the right to free speech but renders the guarantee entirely redundant.

Arrest before conviction: The amendment allows law enforcement to arrest those accused of peddling fake news or hurting a person’s reputation before conviction. Offences under the act are now non-bailable. The amendment, thus, vests the government with unfettered discretion to intimidate dissenting voices by threatening them with arrests pending trial.

In a judgement authored by Justice Maqbool Baqar, it was observed that the “Capricious exercise of the power to arrest has deleterious consequences, thus highlighting the need to exercise it with care, caution and sensitivity. The power of arrest should not be deployed as a tool of oppression and harassment.” With the recent arrest of an erstwhile supporter of the prime minister and the government’s subsequent criticism of the judge who declared the raid on the former to be unlawful, the government’s previous conduct engenders little confidence and may be a harbinger of the times to come.

Bypassing parliament: Most disconcerting perhaps is the government’s decision to amend the law through an ordinance, thus, running roughshod over a central tenet of our democratic dispensation, which is, to legislate through parliament. As lawyer Umer Gilani has argued before the Islamabad High Court, the power to promulgate an ordinance is not uninhibited. To the contrary, an ordinance can only be promulgated when the Assembly is not in session and the president is satisfied as to the existence of circumstances rendering it necessary to take immediate action. The onus to establish the existence of such circumstances rest with the government.

Was passing an ordinance on a Sunday when parliament was admittedly not in session necessary? Should the amendment have been made through an ordinance or through debate and deliberation in parliament, given its divisive nature and implications for fundamental rights?

In a recent address, the prime minister warned the opposition that he would become more dangerous, should he be forced out of office. Would the prime minister and his government, however, be more fatal for civil liberties and democratic norms if they continue in office?

Tread carefully as you answer this question and speak only in whispers. Or else, the state may appear and say ‘Peca-boo’!

The writer is a lawyer.

Twitter: @MoizBaig26

Published in Dawn, February 27th, 2022