• Hears arguments by counsel representing journalists
• Clubs together all petitions against social media rules
• Farhatullah, another PFUJ faction challenge ordinance

ISLAMABAD: The Islamabad High Court (IHC) on Wednesday stopped the Federal Investigation Agency (FIA) from arresting any person without giving them a reasonable opportunity and until the conclusion of the inquiry, on complaints under Section 20 of the Prevention of Electronic Crimes Act (Peca).

While hearing a petition filed by a faction of the Pakistan Federal Union of Journalists (PFUJ) against the recently-amended Peca through a presidential ordinance, IHC Chief Justice Athar Minallah warned the FIA director general and interior secretary of consequences for any violation of the restraining order.

The government amended Peca through a presidential ordinance, which was promulgated on Feb 18, in a questionable manner after abruptly proroguing the Senate session and deferring the session of National Assembly, PFUJ counsel Qazi Adil Aziz, informed the court.

He pointed out that after the amendment, Peca’s Section 20 not only allowed any person or institution to file a complaint against any social media content that the former considered libel, but also omitted the proviso that was protecting the mainstream electronic media from the ambit of the cybercrime law.

After hearing the initial arguments, Justice Minallah noted that the FIA had already submitted SOPs regarding mode of exercising powers in relation to complaints under the offence described in Section 20. According to the SOPs, a person cannot be arrested without giving them a reasonable opportunity and the conclusion of the inquiry contemplated under the FIA Act, 1974.

The chief justice, therefore, observed that the FIA would ensure that the SOPs were strictly complied with in complaints alleging acts amounting to the offence described under Section 20.

“The Director General, Federal Investigation Agency and the Secretary, Ministry of Interior, shall be jointly and severally responsible if the liberty of a person is breached in violation of the SOPs submitted before this Court as well as the august Supreme Court,” the IHC declared in its order.

The counsel earlier argued that the promulgation of the impugned ordinance was in the nature of “colourable legislation”. He said many sovereign states had already decriminalised the offence of defamation including the Republic of Zimbabwe, Democratic Republic of Congo and Republic of Uganda.

He also reminded the court that the vires of Section 20 of Peca had already been challenged and the matter was pending before the court.

The IHC then directed the registrar’s office to issue a notice to the Attorney General for Pakistan and clubbed the pending petitions against social media rules along with the instant petition.

Earlier, former senator Farhatullah Babar and another PFUJ faction also filed identical petitions before the IHC.

Justice Minallah sought AGP’s as­­s­i­­­stance for interpretation of Articles 19 and 19-A of the Constitution in the light of Article 19 of the International Covenant on Civil and Political Rig­h­­ts, read with the UN Human Rights Committees General Comment No 34, which was finalised on July 21, 2011.

The AGP is expected to justify introducing amendments to Peca through the presidential ordinance promulgated under Article 89 of the Constitution, which, prima-facie, appears to have the effect of making defamation ‘more oppressive and draconian’.

He is supposed to justify how public office holders, whether or not elected, and the institutions/organs of the state could use criminalised defamation law.

The court will resume hearing of the case on Thursday (today).

Published in Dawn, February 24th, 2022