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ISLAMABAD: Media organisations’ counsel said Article 144-A of the Prevention of Electronic Crimes (Amendment) Ordinance, 2022 undermines the independence of the judiciary and the judges.

A single bench of Chief Justice of Islamabad High Court (IHC) Athar Minallah on Monday heard the petitions filed by the Pakistan Federal Union of Journalists (PFUJ), the Pakistan Broadcasters Association (PBA), Council of Pakistan Newspaper Editors (CPNE), Pakistan Peoples Party (PPP) leader Farhatullah Babar, and others challenging the recently-promulgated Prevention of Electronic Crimes (amendment) Ordinance, 2022.

The bench ordered the Attorney General for Pakistan (AGP) to appear on the next date. Munir A Malik representing the PBA and other media bodies argued about the impact of the controversial PECA ordinance on the independence of judiciary. He said Article 144-A of the PECA undermined the independence of the judiciary and the judges.

He argued that the amendment to the PECA makes it incumbent upon courts to conclude trials within six months and furnish monthly progress reports of pending trials, and orders the federal and provincial officials to remove any obstacles that may hinder the progress of the proceedings.

Malik contended that the ordinances, issued by the executive, could be subject to judicial review, adding the Constitution allows the issuance of ordinances under Article 89 in case of emergency.

Then, he shared a screenshot of President Arif Alvi’s Twitter account with the court saying that the president summoned a session of parliament on February 18, whereas, the ordinance was also issued on the same day.

Adil Aziz, the PFUJ lawyer informed the court that the session of the National Assembly was postponed, which showed the mala fide intention of this law.

Usama Khawar, the counsel for Farhatullah Babar said Article 19-A that is related to freedom of speech did mention some limitations but they are pertaining to national security, blasphemy, provocation, and contempt of court.

Justice Minallah after hearing the arguments summoned the AGP and deferred the hearing until March 21.

The PFUJ moved the petition through advocates, Adil Aziz Qazi advocate and Haseeb Hassan advocate and cited the President of Pakistan, Federation of Pakistan 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 PBA, All Pakistan Newspapers Society, Association of Electronic Media Editors and News Directors, Council of Pakistan Newspaper Editors, Mohammad Malick, Azhar Abbas, Ali Kazam Waheed, Aijazul Haq, and Sarmad Ali filed the petition through lawyer Munir A Malik.

The petitioner said, “The introduction of Section 2(1) (xxva) 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 defence 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.”

Petitioners’ counsel contended that Sections 2 and 3 of the impugned Ordinance are bound to suppress 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.

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 further argued that the satisfaction of the President as to the existences 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 of Pakistan.

Copyright Business Recorder, 2022

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