ISLAMABAD: The Islamabad High Court on Friday declared the controversial Prevention of Elect­ronic Crimes (Amendment) Ordinance unconstitutional and also scrapped Section 20 of the Prevention of Electronic Crimes Act (Peca) 2016 that had criminalised defamation.

The PTI government had promulgated the ordinance in February at a time when the legality of Peca’s Section 20 was already under examination before the IHC. Two factions of the Pakistan Federal Union of Journalists (PFUJ), Pakistan Broadcasters Association (PBA) and others had challenged the ordinance.

IHC Chief Justice Athar Minallah issued a short order stating “the petitions are allowed”.

The court order noted: “Freedom of expression is a fundamental right and it reinforces all other rights guaranteed under the Constitution of the Islamic Republic of Pakistan, 1973… [and] free speech protected under Article 19 and the right to receive information under Article 19-A of the Constitution are essential for development, progress and prosperity of a society and suppression thereof is unconstitutional and contrary to the democratic values.”

Scraps Section 20 of act that criminalised defamation; opposition parties, PFUJ welcome decision

The court observed that “the criminalisation of defamation, protection of individual reputations through arrest and imprisonment and the resultant chilling effect violates the letter of the Constitution and the invalidity thereof is beyond reasonable doubt. The Prevention of Electronic Crimes (Amendment) Ordinance, 2022 was promulgated in derogation of the Constitution and the fundamental rights guaranteed thereunder, particularly Articles 9, 14, 19 and 19-A. The jurisdictional preconditions were also not in existence”.

Subsequently, the court declared: “The Prevention of Electronic Crimes (Amendment) Ordinance, 2022 and promulgation thereof is declared as unconstitutional, invalid beyond reasonable doubt and it is, therefore, struck down.”

Moreover, Justice Minallah declared that “the offence under Section 20 of the Prevention of Electronic Crimes Act, 2016 to the extent of the expression or harms the reputation and the punishment thereof is unconstitutional, invalid beyond reasonable doubt and is, therefore, struck down”.

The controversial ordinance through an amendment to Section 2 stated that the “person includes any company, association or body of persons whether incorporated or not, institutions, organisations, authority or any other body established by the government.” It enabled any person to lodge a complaint over criticism of even the working of a civic body.

The high court scrapped the proceedings in Peca cases. “However, the aggrieved complainants would be at liberty to avail the remedies provided under the respective laws in the context of defamation,” the order said.

It asked the federal government to review defamation laws, particularly the Defamation Ordinance 2002 and thereafter propose appropriate legislation.

Justice Minallah directed the interior secretary to probe the conduct of officials of the Cybercrime Wing of Federal Investigation Agency, which had led to widespread abuse of powers and the consequent grave violations of fundamental rights of the citizens.

“The court expects that the Secretary, Ministry of Interior, will conclude the probe within 30 from the date of receiving a certified copy of this order and inform the registrar regarding action taken against the delinquent officials,” the order said.

Decision hailed

Opposition parties PML-N and PPP welcomed the IHC decision.

In a tweet, PMLN spokesperson Marriyum Aurangzeb congratulated the people of Pakistan, journalists, civil society and media institutions, including PBA, All Pakistan Newspapers Society, Council of Pakistan Newspaper Editors, PFUJ and Association of Electronic Media Editors and News Directors.

“The judiciary has ruled that no one can make the media and the people blind, deaf and dumb,” she said, adding that protecting civil liberties and freedom of expression enshrined in the Constitution was in fact ensuring the protection of the Constitution and democracy.

PPP’s central information secretary Shazia Atta Marri said her party warmly welcomed the IHC decision, terming it a victory of the Constitution.

“We congratulate the entire nation and the journalists’ community of the country on this constitutional victory,” MNA Marri said in a statement, adding that “selected Imran Khan Niazi wanted to snatch the freedom of expression of the common man like dictators of the past”.

She said the PPP had already rejected the draconian black law of Peca, and today (Friday) the IHC had taken a constitutional step by declaring the Peca amendment ordinance unconstitutional. She said Imran Khan’s government had turned the President House into a “centre of conspiracies”.

PFUJ president Shahzada Zulfiqar and secretary general Nasir Zaidi said the IHC decision was a victory of all democratic forces and champions of human rights.

“The journalist fraternity especially deserves appreciation as it was the first to spring into action, taking notice of the ordinance, involving all the stakeholders and civil society and approaching the court against the black ordinance,” they said in a statement.

Published in Dawn, April 9th, 2022