A key problem is the mandate given to the Federal Investigation Agency to proceed against anyone on the wrong side of the amendment
The government has gone for an overkill. By amending the PECA 2016 law to make it easier to legitimise a crackdown on free speech and, therefore, harder to defend its exercise by dissenters and critics, the very fundamental right to freedom of expression defined by the constitution under Article 19 has been reshaped. In response, even the chief justice of a high court has wondered out aloud if the premier had been misguided, or inadequately guided, by his advisors on the nature and purpose of the amendment. The implication does not lack merit.
While the purpose of the amendment is a separate analysis and debate altogether, a key problem with it is the mandate given to the Federal Investigation Agency (FIA) to be the principal executor of the amended part of the PECA. It has been empowered to proceed against anyone on the wrong side of the amendment. This is problematic on several counts. The FIA is a federal institution and can take cognizance of a case only when referred to it by federal authorities or on a matter falling under federal jurisdiction. The PECA amendment of February 2022 allows it suo motu powers to become a referee to itself on cases related to defamation.
This was not the case earlier. Under the previous FIA mandate, only a third party – including the federal government or the judiciary – could refer a complaint to it. This was just as true for a cognizable offence (violation of a law) as for a non-cognizable offence (private dispute between two persons). Now any FIA official can be both a complainant and the investigator of their own complaint. This inherent conflict of interest is violative of the legal grundnorm. This allows the FIA, which is supposed to be only an investigator, the powers of adjudication, thereby allowing it to encroach upon the judicial domain.
Another key problem with the prime minister’s enlistment, under the PECA amendment, to crack down against dissent is distracting FIA from its principal role of combating cybercrime. Dissent and criticism, especially against a public office holder, is not a cybercrime. Instead, cybercrime is criminality online such as identity theft, e-fraud, spoofing, trolling, stacking, hacking, data theft, etc.
Even before the controversial and widely rejected amendment was birthed last month, the PECA law was being increasingly misused as a legal tool against journalists and critics of the government. Digital rights activist Farieha Aziz, the author of the report Rethinking the Prevention of Electronic Crimes Act: How Cybercrime Laws Are Weaponised against Women produced by Human Rights Commission of Pakistan in 2022, says the stated aim of PECA 2016 stemmed from a security state narrative drawing cover from the National Action Plan. Its purported agenda was, first, to curb terrorism and hate speech online; and second, to save women from harassment. It failed on both counts.
According to the report, the PECA is “a political problem wedged in a criminal justice system” and draws conclusions from several case studies pointing out that the pre-trial stage of cases falling in the domain of FIA is “the most coercive with no checks or balances and least protections available where the need is the greatest,” acting outside the law with impunity is the norm.
Another report, Pakistan Silencing Online Journalists Through Legal Victimisation, produced by Freedom Network in November 2021, revealed a chilling pattern in the use of PECA law. Based on detailed investigation of 23 cases (of journalists) sent notices by the FIA and charged under the criminal defamation section of the law between 2019-2021, the second highest number of initiators of the cases were FIA officials. Section 20 was the most frequently invoked PECA section against journalists with over 80 percent of the journalists summoned by the FIA compelled to appear before it to answer charges.
Over half of the journalists who mounted a legal challenge to FIA notices got relief from courts which suspended the notices that indicated exceeding mandate. Only about a third of the complaints against journalists by FIA under PECA resulted in inquiries completed in due time. Two-thirds remained incomplete, indicating injustice. For almost all journalists against whom inquiries were completed, legal cases were registered and prompt arrests made. Criminal cases were registered against two-thirds of all journalists pursued under the PECA. Clearly, there seems to be an arbitrary exercise of the jurisdiction by FIA to register cases irrespective of whether inquiries against journalists are completed or not completed.
In September 2021, responding to a petition filed by Asad Baig of Media Matters for Democracy, the FIA told the Islamabad High Court that nearly 150,000 complaints under the PECA were registered with it between mid-2019 and mid-2021, of which less than 250 were decided. The FIA admitted its gross incapacity to deal with the PECA workload before it, including “inadequate staff, inadequate training and capacity building and need for upgrade of the forensic labs… The number of trained officials/ investigators is not adequate to effectively deal with the huge spike of cyber-related offences.”
And yet, under the new amendment, the prime minister wants the FIA to also take suo motu notice of criticism against him, his government and its institutions without allowing bails and completing the cases within six months without any additional budget, human or technical resources. To ensure that the FIA doesn’t get buried under its own files and instead focuses on tackling cybercrime, the government should have decriminalised defamation and dissent rather than sent insensitive FIA officers chasing after critics of public office holders and government departments run with taxpayers’ money. Criminalising criticism makes criminals out of everyone. Is that what we want?
The writer is a political analyst and media development specialist. He can be reached at firstname.lastname@example.org