ISLAMABAD: The Islamabad High Court (IHC), Thursday, termed the powers given to the Federal Investigation Agency (FIA) under the Prevention of Electronic Crimes Act (Amendment) Ordinance, 2022 as “draconian”.
A single bench of IHC comprising Chief Justice of IHC Justice Athar Minallah said this, while hearing identical petitions challenging the recently-promulgated Prevention of Electronic Crimes (amendment) Ordinance, 2022.
The bench stated that prima facie, it appears that the likely effect of the amendments would be to discourage free speech. It noted,
“The chilling effect that has already been created through the rampant and widespread abuse of the offence of criminalized defamation, seems to have been sanctioned through the repressive and draconian powers given to the Agency pursuant to the impugned Ordinance.”
During the hearing, Attorney General for Pakistan Khalid Jawed Khan argued that the federal government may be given time to ensure safeguards against abuse of powers, while dealing with complaints relating to the criminalised offence of defamation under section 20 of the Prevention of Electronic Crimes Act, 2016 as amended through the impugned Ordinance i.e. the Prevention of Electronic Crimes Act (Amendment) Ordinance, 2022.
He informed that the federal government is considering making rules to regulate the power of arrest in relation to offences described under the Act of 2016. He strenuously argued that criminalisation of defamation nor amendments introduced through the impugned Ordinance is incompatible with the fundamental rights under Articles 19 and 19-A of the Constitution of the Islamic Republic of Pakistan, 1973.
The bench drew the attention of the attorney general to the pending cases and the rampant, widespread and unabated gross abuse of powers by the executing agency under the Act of 2016 i.e. the FIA. He was informed that it has, prima facie, become obvious on the basis of the record before the Court that the gross abuse of powers vested in the Agency was restricted to alleged complaints of attacks on reputations of public office holders.
The victims were critics, dissenters, political activists, human rights defenders, journalists and even a neighbour who had raised his dissent regarding damage caused to the environment at the behest of an elected public office holder.
The IHC bench noted that the Court has exercised restraint expecting that the Agency and the Federal Government would ensure safeguards against abuse of powers while dealing with complaints regarding offences under the Act of 2016.
“Regrettably, the gross abuse, having profound consequences in the context of the fundamental rights guaranteed under Articles 19 and 19-A of the Constitution, have continued unabated and that too in disregard to the Standard Operating Procedures (SOPs) submitted by the Agency not only before this Court but the august Supreme Court as well,” added the court.
It continued that while the matter was pending before the court, the impugned Ordinance was promulgated in exercise of powers conferred under Article 89 of the Constitution. It said that a plain reading of the amendments made through the impugned Ordinance, and having regard to the conduct of the executive authorities as indicated above, it appears that, rather than exercising caution and taking effective measures against abuse of criminalized defamation, prima facie, oppressive amendments have been introduced.
Justice Minallah maintained, “Arrest or prison sentence in complaints relating to defamation has sufficient “chilling” effect to raise the question whether the threshold of “reasonable restriction” in the context of Articles 19 and 19-A of the Constitution has been met.
Moreover, whether even unjustified attacks on the reputation of private individuals would outweigh compromising the right of free speech guaranteed under the aforementioned constitutional provisions. Arrest or imprisonment may be justified only in exceptional circumstances i.e. when there is serious impairment of fundamental rights i.e. in case of hate speech or incitement to violence but definitely not when it has a “chilling” effect likely to breach or discourage free speech in order to protect a private individual’s reputation.”
He added that it, therefore, prima facie, appears to the Court that criminalization of defamation under section 20 of the Act of 2016 and the impugned Ordinance do not satisfy the threshold of “reasonable restriction” and thus, they are not compatible with the fundamental rights guaranteed under Articles 19 and 19-A of the Constitution nor the obligation of the State of Pakistan.
“There is another crucial question regarding the constitutional validity of the impugned Ordinance. Public bodies do not enjoy protection of fundamental rights guaranteed under the Constitution because they are bereft of the required status. Their existence is solely to serve the people and the test of their performance is confidence reposed in them by the actual stakeholders i.e. the people. Public bodies, therefore, do not require protection against attacks on their reputation. They cannot claim immunity from rigorous scrutiny and accountability by the people,” maintained the IHC chief justice.
He further said that the vires of the impugned Ordinance also has to be justified on the touchstone of jurisdictional preconditions prescribed under Article 89 of the Constitution. It has to be justified that circumstances existed which rendered it necessary to take immediate action by exercising powers conferred under Article 89 and thus circumvent the legislative process within the exclusive jurisdiction of the Majlis-e-Shoora (Parliament).
Justice Minallah said, “Would an unjustified circumvention not be a fraud upon the Constitution, particularly when it has the effect of violating one of the most important fundamental rights i.e. guaranteed under Article 19 of the Constitution.”
He also said the Attorney General is, therefore, expected to satisfy on the next date fixed, why the Court may not declare criminalization of defamation under section 20 of the Act of 2016 and the oppressive amendments introduced through the impugned Ordinance, as “unreasonable restriction”, consequently incompatible with the fundamental rights guaranteed under Articles 19 and 19-A of the Constitution and thus ultra vires and liable to be struck down.
Later, the bench directed to relist the case on March 10, adding that the direction given vide order, dated 23-02-2022 (in W.P. No.632/2022), regarding strict adherence to the SOPs submitted before this Court by the Agency shall continue till the next date fixed.
Copyright Business Recorder, 2022