• Information minister says FIA move against stated policy for ensuring freedom of expression
• Agency admits it filed appeal without interior ministry’s permission

ISLAMABAD: Hours after the Federal Investi­gation Agency (FIA) sought restoration of its ‘draconian’ powers by challenging the Islamabad High Court (IHC) order that scrapped the controversial legislation for making defamation a cognizable and non-bailable off­ence, the federal government on Saturday announ­ced that the petition stood ‘withdrawn immediately’.

The retreat was annou­nced by Information Minis­ter Marriyum Aurangzeb after the journalists’ and media bodies expressed serious concern over the move and dema­nded immediate withdrawal of the petition.

The FIA earlier in the day had filed a petition before the Supreme Court to challenge the April 8 order of the IHC that struck down the presidential ordinance on Pre­vention of Electronic Crimes Act (Peca), particularly Section 20 of Peca Act that criminalised defamation.

Interestingly, when Presi­dent Arif Alvi had promulgated the ordinance in Febr­u­ary, the Pakistan Muslim League-Nawaz and Pakistan Peoples Party, which were then in the opposition, filed petitions against the law terming it against the fundamental rights.

Read: ‘Peca-boo’

The federal agency that can file a petition with the express permission of the Ministry of Interior challenged the IHC’s decision before the Supreme Court and defended the promulgation of the ordinance, arguing that it was done in accordance with law.

However, after the federal minister’s announcement on Saturday evening, the FIA spokesperson admitted that the appeal was filed without getting permission from the government, particularly the Ministry of Interior. “The appeal is being withdrawn immediately,” the official confirmed to Dawn.

In the appeal filed before the apex court, the FIA contended that “the observations of learned single bench of Islamabad High Court…amount to undue intrusion into the legal parameters of national and internationally-based Law Enforcement Agency (the FIA), which does enforce law strictly in accordance with law and the provisions of the Constitution.” It said that the impugned interim order dated April 8, 2022 of the IHC is the result of misreading and non-reading of the spirit of section 20 of the PECA - 2016 as well as Articles 9, 14, 19 and 19-A of the Constitution of Islamic Republic of Pakistan 1973, which have never been violated by the State/Petitioner (the (FIA), but instead the same are uninterruptedly violated every now and then by the Respondent [Pakistan Federal Union of Journalist] yellow press / electronic media involved in anti-state activities.”

The FIA stated that the IHC’s decision has given “a clean chit to defame those restricted by Article 19-A of the Constitution of Islamic Republic of Pakistan 1973, without any compunction” adding that striking down “Section 20 of PECA 2016… would also affect adversely the smooth-running official functions of the FIA Cyber Crime Wing.”

The FIA posed the questions before the Supreme Court, whether IHC while passing the order has not acted much beyond jurisdiction? Whether it was justified or correct to strike down section 20 of Peca unwarrantedly? Whether the decision was not in direct clash and conflict with Article 184 (3) of the Constitution.

The appeal asked as to whether IHC’s decision was tantamount “to extending undue favour to the PFUJ as certain unscrupulous elements amongst them are involved in slinging unbecoming, un-parliamentary, defamatory and sarcastic remarks/ language upon the law-abiding citizens as well as the honourable judges of superior judiciary, the hierarchy of the Federation and the State institutions valiant armed forces?”

It stated that the IHC decision ordered an inquiry against FIA’s officials without giving them right of audience and they have been condemned unheard.

The appellant requested the court to set aside the decision against Peca law and “in the meanwhile this Hon’ble Court may graciously suspend the operation of impugned interim order dated April 08, 2022 till the final disposal of instant appeal.”

IHC Chief Justice Athar Minallah in a short order issued on April 8 observed, “Freedom of expression was a fundamental right and reinforces all other rights guaranteed under the Constitution. Free speech and the right to receive information are essential for development, progress and prosperity of a society, he said, adding that their suppression was “unconstitutional and contrary to the democratic values”.

“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 order stated.

Justice Minallah said the Peca ordinance was “promulgated in derogation of the Constitution and the fundamental rights guaranteed thereunder, particularly Articles 9, 14, 19 and 19-A”. He also declared “the offence under Section 20 of the Prevention of Electronic Crimes Act, 2016 to the extent of the expression ‘or harms the reputation’ unconstitutional.

Section 20 of the Act states: “Whoever intentionally and publicly exhibits or displays or transmits any information through any information system, which he knows to be false, and intimidates or harms the reputation or privacy of a natural person, shall be punished with imprisonment for a term which may extend to three years or with fine which may extend to one million rupees or with both.”

Justice Minallah said in his order that the punishment for the offence was also “unconstitutional” and hence, both, the offence and punishment, were “struck down”.

Minister’s tweet

Hours after the FIA challenged the order before the SC on May 7, Minister Aurangzeb tweeted: “The Prime Minister and I learned a short while ago that FIA has filed a petition in SC against the IHC Judgement regarding PECA Act 2016 to seek restoration of section 20 of the Act.

"Please note that this petition stands withdrawn immediately, as it is squarely against the government’s stated policy and principle of standing for and ensuring freedom of expression. The Prime Minister has taken strict notice of the filing of this petition. Unfortunately, the news of this petition was a little late to reach us due to the fact that we were in Bisham during the day where there were no signals.”

Background

Peca was passed by the National Assembly in 2016 amid opposition’s protest. The PML-N, which was in the government at the time, had used its majority to bulldoze the controversial bill. The opposition, meanwhile, criticised the legislation for giving the executive what it called sweeping powers that could be misused against anyone and further curb freedom of expression.

The legislation stated that parody or satire-based websites and social media accounts can be proceeded against on ‘spoofing’, which makes it an offence to run a website or send information with a “counterfeit source”. It also authorised FIA officers to unlock any computer, mobile phone or other device that may be required for the purpose of investigating a crime or offence, and said that defamation would be treated as a punishable offence.

In November 2020, the PTI government framed social media laws under Peca, drawing criticism from digital rights activists, the Internet Service Providers of Pakistan and the Asia Internet Coalition. President Alvi later promulgated the ordinance to amend the Peca on February 20. Among some of the most consequential changes to the Act was an amendment to Section 20 of Peca, which increased the jail term for defaming any person or institution from three years to five years.

Published in Dawn, May 8th, 2022