The PECA has faced wide-spread criticism for violating the fundamental, constitutional right of free speech. Journalists have increasingly been under fire, especially in the last two years
A few days back, the Human Rights Commission of Pakistan (HRCP) and Amnesty International-South Asia expressed grave concern following reports that the Federal Investigating Agency (FIA) is registering cases against 49 journalists and social media activists under the PECA, also posting tweets on the matter. However, Shireen Mazari, the federal minister for human rights and Fawad Chaudhry, the federal minister for science and technology have denied such reports.
Mazari has admitted that the FIA is examining “12 complaints against journalists lodged by a citizen”. Meanwhile, Fawad Chaudhry has asked those “who created fuss without any confirmation” to “apologise to the nation and to the government”.
Journalists have been increasingly under fire over the last two years or so. The registration of cases against Bilal Farooqi, an editor with The Express Tribune, and Absar Alam, a former chairman of the PEMRA (Pakistan Electronic Media Regulatory Authority) under charges of “spreading hatred” and “defaming the prime minister of Pakistan” and “other institutions are the latest examples.
Some journalists’ organisations, including the Reporters Without Borders (RWB), Committee to Protect Journalists (CPJ), International Consortium of Investigative Journalists (ICIJ), Pakistan Federal Union of Journalists (PFUJ), and the Freedom Network have raised serious apprehensions on the Pakistan Tehreek-i-Insaaf (PTI) government’s ‘aversion to criticism’.
Following the recent events, the Pakistan Bar Council, on September 29, constituted a Journalists Defence Committee (JDC) comprising a seven-member team of lawyers for providing free legal assistance and services to journalists for protecting their rights.
“Sadly, the government is undermining the freedom of expression through the PECA, making it particularly difficult for journalists to perform their duties independently”, states Muhammad Usman Warraich, a member of JDC. “Therefore, the Pakistan Bar Council has decided to provide legal assistance to journalists for protecting their democratic and constitutional right”, he adds.
The PECA came into effect on August 2016. The National Assembly enacted the Prevention of Electronic Crimes Act (“PECA”) to “provide a comprehensive legal framework to define various kinds of electronic crimes, mechanisms for investigation, prosecution and adjudication in relation to electronic crimes”.
Although this cybercrime bill was applauded by the National Assembly at the time, lawyers, journalists, social media activists and human rights activists have been raising alarm. They have pointed out that the law grants the FIA an unchecked power to access or block content or make arrests; it potentially criminalises journalism; it empowers PTA (Pakistan Telecommunication Authority) to remove content based on various subjective bases; and it defines cyberterrorism broadly, and therefore, may be applied to non-terrorism cases to impose harsher punishments.
The PECA has faced a lot of criticism for violating the fundamental right of freedom of speech guaranteed under Article 19 of the constitution. In The Prevention of Electronic Crimes Act 2016: An Analysis, Eesha Arshad Khan sheds light on the contradictory spirit of the PECA law, arguing that freedom of speech and press are fundamental rights that signify the cornerstones of democratic institutions.
“The Constitution of Pakistan is embodied with the articles which safeguard the ‘Right to Speech’ and ‘Right to Information’, and also guarantee the same. Unfortunately, use of this draconian and oppressive laws as a weapon to control and steer the functioning of journalism is not unprecedented in this oppressive regime. State and its functionaries have emerged as principal threat to the freedom of speech and journalistic practices”, Warraich tells TNS.
Sections 18 and 21 of the PECA create hiccups for journalists who are trying to carry out their professional obligations, says Islamabad-based lawyer and analyst Muhammad Aftab Alam.
“These sections, in fact, criminalise proper journalism. Section 18 criminalises the intentional transmission of any ‘false intelligence’, which is likely to harm or intimidate the reputation or privacy of a natural person”, he adds.
The definition of word ‘likely’ seems very ambiguous and creates tremendous opportunity for the relevant authority to misuse it, according to Alam.
Moreover, the word ‘act’, writes Khan, under the definition section, has been defined as ‘a series of acts, without even explaining it as to what constitutes an ‘act’. Similarly, she notes, a dishonest or bad intention is defined as “intention to cause injury, wrongful gain or wrongful loss or harm to any person or to create hatred”. Alam and Khan agree that the words ‘to create hatred’ in this section have created more fuzziness.
Digital Rights Foundation (DRF) has been an advocate for the sound jurisprudence on issues on online harassment and cybercrimes. Nighat Dad, a lawyer and the executive director of DRF says that provisions that help encounter online harassment and cyber-stalking are producing good results to a limited extent.
“The overall draft of the PECA cannot be called ideal. There are several lacunae that should have been addressed prior to the enactment of this law”, she says.
She adds that Section 31 of the Act that discusses ‘expedited preservation and acquisition of data’, and Section 37 that provides unquestionable powers to PTA to block or remove online content, are restricting the right of freedom of expression.
Under Sub-Section 1 of Section 37 of the Pakistan Electronic Crimes Act (PECA) 2016, the PTA has been unilaterally empowered to block the websites if the content is “against the glory of Islam, integrity, security and defence of Pakistan, public order, morality or contemptuous”. Until September 2019, the PTA had blocked more than 900,000 websites by practicing its ‘proscribed legal right’ despite the fact, the Islamabad High Court (IHC) has declared that the “PTA is not empowered to block any website in violation of due process and without hearing the other party.”
“Apart from Section 37, Section 31 of the Act gives the executive direct authority to instruct a person to hand over data without producing any court warrant or scrutiny, which may create problems in absence of adequate accountability”, says Dad.
Discussing Section 37 further, Alam says that PTA has been given the absolute authority to interpret the ‘right to freedom of speech’ that falls within the Article 19 of the Constitution.
Section 9 of the Act relates to the ‘issues of national security, a crime related to terrorism, and activities of proscribed organisations’.
“Apparently, Section 9 is crucial to sorting out issues that carry a serious threat to national security but some provisions of this Section do not resolve the direct threat to journalism and freedom of speech”, Alam says.
The author is a staff member. He can be reached at firstname.lastname@example.org