SEEN as a tool for repressive governmental sanctions on online free speech by rights activists, the Pakistan Electronic Crimes Act (Peca) 2016 was bulldozed through parliament as it was considered necessary by the government of the time to address the inadequacy of Pakistan’s existing criminal legislation and legal system in dealing with new and emerging online threats.

Almost three years later, the federal government has moved to frame stringent rules and amendments to make Peca even harsher against anti-state and fake news online. This move has come right after the parliamentary committee on human rights’ direction to the National Commission on Human Rights to suggest amendments to ensure the act is no longer a tool in the hands of the government or military establishment to stifle free speech and dissent. While the federal law ministry and the NCHR race against time to propose workable amendments to be incorporated into the law by parliament, the elephant in the room needs to be addressed: is Peca even constitutionally valid?

According to many legal experts, many important provisions of Peca, which can be considered the linchpins of the entire legislation, are violative of the Constitution, and thus it should be struck down as an unconstitutional piece of legislation. To understand why, one need only look at the two major functions of the act, both of which are facially unconstitutional.

Firstly, Peca criminalises certain online conduct and then it provides special procedures for the prosecution and trial of these offences before a specific forum and prescribes special sentences for these offences. However, many of the criminal offences provided by Peca are unconstitutional and liable to be struck down because they criminalise conduct which is already criminalised by other special criminal statutes. Examples of this are the provisions on cyberterrorism and online hate speech provided under Peca: these offences are already criminalised under the Anti-Terrorism Act, 1997, which provides its own specialised procedures, sentences and forum for trial and conviction.

Is the cyberlaw even constitutionally valid?

Our Supreme Court in Syed Mushahid Shah v. Federal Investment Agency, which is reported as 2017 SCMR 1218, unanimously held that where two criminal statutes enjoy concurrent jurisdiction over the accused for criminalising the same conduct and provide different forums, procedures and punishments for the offence, they are liable to be struck down as this is discriminatory and in violation of the accused person’s right to be treated equally under the law as per Article 4 of the Constitution.

The second function of Peca is that it provides the federal government the power to remove unlawful online data from cyberspace. Peca empowers the Pakistan Telecommunication Authority (PTA) to receive complaints and independently determine if content which is being complained about is liable to be removed if, among other grounds, the authority considers the content to be prejudicial to “the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, public order, decency or morality”.

On closer analysis however, it is clear that the power granted to the PTA under Peca to decide which content is lawful or not is liable to be struck down as it violates Article 19 of the Constitution which guarantees the right to freedom of speech and expression subject to reasonable restrictions imposed by law on seven enumerated subjects. It is well understood that Pakistan’s parliament is the only body which is empowered to make laws under our constitutional scheme and while parliament may allow authorities to create sub-delegated legislation, it cannot excessively delegate its functions.

This view is fortified by the ruling of the Supreme Court in Pakistan Tobacco Company v. Government of NWFP, which is reported as PLD 2002 SC 460, where it was held that the legislature cannot delegate essential legislative functions to the executive, especially without providing guiding principles. Therefore, any law which provides for specific content based restrictions to limit the exercise of the fundamental right of free speech must necessarily be made by parliament and it cannot be simply sub-delegated to an executive authority such as the PTA.

A cybercrime law is essential for the protection of Pakistani citizens’ rights and interests in the arena of cyberspace. Thus it is the need of the hour for parliament to make Peca compliant with the stringent requirements of our Constitution so that it can survive judicial scrutiny. The current attempts of the federal government to make the law stricter and NCHR’s attempt to make it less strict would both be an exercise in futility if parliament does not deal with the unconstitutionality of Peca first and foremost.

The writer is a human rights lawyer working at the Law and Policy Chambers in Islamabad.

omerimranmalik@gmail.com

Published in Dawn, June 30th, 2019