Petition relating to banning TikTok: IHC raises question over rules regarding social media

ISLAMABAD: Islamabad High Court (IHC) raising question over the government rules regarding social media said that criticism was essential for democracy. A single bench of Chief Justice Athar Minallah Friday heard a petition relating to banning TikTok and social media rules under the PECA 2016 and the Awami Workers Party cases. Usama Khawar, representing the petitioner, has raised broader issues concerning misuse of the PECA by the Pakistan Telecommunication Authority (PTA), unbridled discretion of the PTA, lack of existence of proportionality test, lack of competency of the PTA to determine vague terms such as indecency/immorality, non-framing of rules, etc.

The PTA on October 9, 2020, had banned video-sharing application in view of number of complaints from different segments of the society. The chief justice expressing dissatisfaction over the Rules framed by it declared in the order that "Social Media Rules framed by PTA are prima facie not in consonance with Art 19 & 19A of the Constitution."

He observed that the best manner to ensure accountability in a democracy was to let the people have access to information. He said criticism was very important for democracy. Let the people have information and let them judge the government, adding, the PTA is discouraging accountability.

"PTA should encourage accountability by facilitating access to information," he added.

The chief justice said when even the courts and judges were not immune from constructive criticism, how could the government be shielded from criticism?

The IHC chief justice discouraged the PTA's counsel for citing India as an example, and remarked that the court was very clear that fundamental rights of the citizens would not be violated. He remarked if India is doing wrong then they need not to follow its footsteps.

Vice-Chairman PBC Abid Saqi, who was appointed amicus curiae, submitted brief regarding the matter. The Court greatly appreciated it, and directed the PTA to take into account the reservations emphasized on the representative of the apex body of the lawyers.

The Court emphasised on the need for meaningful consultation before notifying Rules affecting Art 19 & 19A. Court observed meaningful consultation would entail sharing a draft of the Rules before finalising it, not just writing generic letters inviting consultation.

Court berated the PTA for not sharing a draft of the Rules with the relevant stakeholders, especially the Pakistan Bar Council, apex body of lawyers which is by law required to promote the rule of law and work for protection and promotion of fundamental rights.

When the PTA tried to justify the Rules by pointing out that in India such restrictions of freedom of speech and information are also allowed, the Court advised the PTA to not follow those counties where fundamental freedoms are being restricted.

The PTA official informed the court that letters were written to the PBC and the Islamabad Bar Council for suggestions. He added that some provisions of the rules gave the impression that they were unconstitutional.

The IHC bench directed the PTA's counsel to argue his case and prove that the rules were not in conflict with Article 19 and 19A on the next hearing. He reiterated that the objections raised by the PBC were justified and directed the PTA to also take into account the objections raised by the PBC. The case was adjourned until December 18.

Copyright Business Recorder, 2020