The Pakistan Broadcasters Associations (PBA), media associations, and senior journalists, Wednesday, moved the Islamabad High Court (IHC) against the Prevention of Electronic Crimes (Amendment) Ordinance, 2022.

The petitioners including the PBA, the All Pakistan News Papers Society, the Association of Electronic Media Editors and News Directors, the Council of Pakistan Newspaper Editors, Mohammad Malick, Azhar Abbas, Ali Kazam Waheed, Aijaz-ul-Haq, and Sarmad Ali moved the petition through lawyer Munir A Malik.

They adopted the stance that the ordinance aims to stifle criticism and debate on the actions of the public office holders in the garb of action against fake news and disinformation. They said that criticism of the actions of the public office holders was necessary for a vibrant democracy. They also said that Section 44(a)(5) inserted in the ordinance - that bounds the courts to decide defamation cases within six months - will pressurise the judges hearing the cases.

The petitioners said, “The introduction of Section 2(1) (xxva) in and the amendments to section 20 of the Act impede the right of free speech and beyond the pale of reasonable restrictions permissible under Article 19 of the Constitution in “the interest of the glory of Islam or the integrity, security or defense of Pakistan or any part thereof nor are these relatable to friendly relations with foreign states, public order, decency or morality, or in relation to commission of an offence.”

They argued, “The freedom to comment on the conduct of public officials and bodies is essential to good governance yet under the garb of punishing defamatory statements, Sections 2 and 3 of the Impugned Ordinance curtail the right to information provided for by Article 19A of the Constitution. Insofar as section 20 is concerned, governments and its bodies, agencies, authorities, departments cannot claim and enjoy a general right to reputation that can be protected either under civil or criminal law.

Similarly, they cannot enjoy a general right to privacy save for any reasonable and specific exceptions provided under law such as Official Secrets Act, Income Tax Ordinance, Right to Information Acts cc. Claiming such would offend against Art. 19 and 19-A. Public interest demands a far greater latitude in speech concerning them.”

The petitioners further said that if the mischief sought to be remedied is the dissemination of defamatory statements the means employed through section 2 and 3 of the impugned Ordinance are wholly disproportionate, irrational and unreasonable.

Munir A Malik contended that Sections 2 and 3 of the impugned Ordinance bound to chill free speech. The fear of being dragged in to criminal proceedings on the complaint of any member of the general public on the alleged defamation of public officials, treating false statements as non-bailable and cognizable by the investigation agency as provided for by sections 2 and 3 of the impugned Ordinance are bound to chill free speech and fair comment.

“That enlarging the definition of person to include any body or association of persons whether incorporated or not is unreasonable. In particular, allowing members of the general public to be the complainant / informant in respect of statements made about “public officials” and “public figures” and act as an “aggrieved person” even in the absence of any complaint by the public official or figure concerned is clearly unreasonable and bound to lead to abuse,” contended the counsel.

Malik continued that Prevention of Electronic Crimes Act (PECA) has an overriding clause, so does Pakistan Electronic Media Regulatory Authority Ordinance (PEMRA Ordinance). With the removal of the proviso, PECA would appear to apply to electronic media too. But it cannot. PEMRA Ordinance also imposes criminal sanctions for breach of provisions of Ordinance. But they require a complaint by Pakistan Electronic Media Regulatory Authority and starts with fine and only on repeat rise to imprisonment, As per Mushahid Shah and Waris Meah – you cannot have parallel criminal regimes and in case of conflict; the one favourable to accused is to prevail.

He further said that the section introduced as 44A (5) is a colourable piece of legislation and shall pressurize the judge and hang as a sword over his independence and would thus be offensive of Article 175 and 10-A of the Constitution.

The counsel added that increase in the period of imprisonment from three to five years for disseminating false statements as provided for through the impugned Ordinance is calculated to impose “self-censorship”, which impinges the liberty of man and is an affront to human dignity.

He also argued that the impugned Ordinance under the pretense and disguise of fighting fake news and disinformation will in reality shutter discussion and comment on the working of public figures, officials and institutions which discussion and comment is vital to good governance and a functioning democracy. Parliament lacks legislative competency to shutter such discussion and comment and as such The Impugned Ordinance is colourable legislation liable to be struck down as such.

He further argued that the satisfaction of the president as to the existence of circumstances necessary to take immediate action as contemplated under Article 89 must be objective and is justiciable. Even assuming, but not admitting that the satisfaction may be subjective where the circumstances may have been purposefully created, the exercise of power under Article 89 would be malafide and a fraud upon the Constitution that the courts have sworn to preserve.

Therefore, he prayed that the court may strike down the said Ordinance as being ultra vires the Constitution.

This story was first published in Business Recorder on March 3, 2022.