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ISLAMABAD: The Islamabad High Court (IHC) restrained the authorities from arresting people under Section 20 of the newly-promulgated Prevention of Electronic Crimes (Amendment) Ordinance, 2022.

“The Director General, Federal Investigation Agency and the Secretary, Ministry of Interior shall be jointly and severally responsible if the liberty of a person is breached in violation of the SOPs submitted before this Court, as well as, the august Supreme Court,” maintained the IHC chief justice.

A single bench of Chief Justice Athar Minallah, on Wednesday, issued the order, while hearing the Pakistan Federal Union of Journalists (PFUJ)’s petition.

The bench stated that the Federal Investigation Agency (FIA), executing agency under the Act of 2016, has already submitted SOPs before this Court regarding mode of exercising powers in relation to complaints under the offence described in Section 20 of the Act.

According to that a person will not be arrested without giving him a reasonable opportunity and conclusion of the inquiry contemplated under the Federal Investigation Agency Act, 1974.

In the written order, Justice Minallah noted; “This Court, therefore, expects that the FIA will ensure that the SOPs are strictly complied with in cases of complaints alleging acts amounting to the offence described under section 20 of the Act of 2016.”

PFUJ moves IHC against PECA ordinance

He mentioned that through this petition, the PFUJ assailed the vires of the Prevention of Electronic Crimes (Amendment) Ordinance, 2022 notified in the official gazette on 18.02.2022, whereby, amendments have been made in various provisions of the Prevention of Electronic Crimes Act, 2016. The amendments have been, inter-alia, introduced in section 20 of the Act of 2016.

The petitioner’s counsel contended that promulgation of the impugned Ordinance is in violation of the scheme of the Constitution of the Islamic Republic of Pakistan, 1973. He further contended that promulgation of the impugned Ordinance is in the nature of “colourable legislation”.

The counsel stressed that many sovereign States, including Zimbabwe, Congo and Uganda, have decriminalised the offence of defamation He contended that the vires of section 20 of the Act of 2016 have already been challenged and the matter is pending before the Court.

The IHC bench directed the registrar office to issue notice to the Attorney General for Pakistan in terms of Order XXVIIA of the Code of Civil Procedure, 1908. It further directed to re-list the petition along with the other petitions, wherein, vires of section 20 of the Act of 2016 have been challenged on February 24.

Justice Minallah also said that the Court expects that the Attorney General for Pakistan will assist the Court, interalia, regarding interpretation of Articles 19 and 19-A of the Constitution in the light of Article 19 of the International Covenant on Civil and Political Rights read with the United Nations Human Rights Committees General Comment no. 34, which was finalized on July 21, 2011.

He noted that the States’ parties have been urged to decriminalize defamation. “It has been explicitly stated that, in any case, imprisonment or arrest even in criminalized defamation is ‘never an appropriate penalty’. The attorney general is also expected to justify introducing amendments through an Ordinance promulgated under Article 89 of the Constitution, which, prima-facie, appears to have the effect of making an already criminalized defamation more oppressive and draconian,” added the IHC chief justice.

He continued that the likely consequences for freedom of expression and right of access to information appear to be profound and not consistent with the fundamental rights guaranteed under Articles 19 and 19-A of the Constitution. The protection of a private person’s reputation can definitely not outweigh the right of free speech in a democratic society governed under the Constitution.

The bench said that the Attorney General is also expected to justify how the offence of criminalized defamation can be resorted to by public office holders, whether or not elected, and the institutions/ organs of the State.

In this matter, the PFUJ moved the petition through their advocates Adil Aziz Qazi and Haseeb Hassan and cited the President of Pakistan, Federation through Secretary Ministry of Law and Federation of Pakistan through Secretary Ministry of Information Broadcasting and National Heritage as respondents.

The petitioner prayed before the court that the Promulgation of the impugned Prevention of Electronic Crimes Amendment Ordinance of 2022 itself and the Ordinance may be declared as ultra-vires to the entire scheme of Constitution of Islamic Republic of Pakistan 1973 and the fundamental rights of the people of Pakistan.

The petition stated that through the said Ordinance sections 2, 20, 43 have been amended while section 44A has been inserted in the existing law. The definition of the term “person” has been extended to company, association or body of persons whether incorporated or not, institution, organization, authority or any other body established by the Government.

It also said, “Furthermore in section 20 the word natural has been omitted and the sentence has been increased from three to five years while adding a new subsection 1(A) whereby the informant or complainant in respect of offence under subsection (1) shall be an aggrieved person, his authorized representative, or his guardian, where such person is a minor, or a member of the public in respect of a public figure or a holder of public office” has been added to the existing law.”

Copyright Business Recorder, 2022

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