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ISLAMABAD: The Islamabad High Court (IHC) on Friday declared promulgation of the Prevention of Electronic Crimes (Amendment) Ordinance, 2022 as “unconstitutional”, saying suppression of free speech is contrary to the democratic values.

A single bench of Chief Justice Athar Minallah heard the petitions of the Pakistan Federal Union of Journalists (PFUJ), the Pakistan Broadcasters Association, the 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 IHC declared that freedom of expression is a fundamental right and it reinforces all other rights guaranteed under the Constitution. It further said that free speech protected under Article 19 and the right to receive information under Article 19-A of the Constitution are essential for development, progress and prosperity of a society and suppression thereof is unconstitutional and contrary to the democratic values.

The chief justice ruled, “The criminalisation of defamation, protection of individual reputations through arrest and imprisonment and the resultant chilling effect violates the letter of the Constitution and the invalidity thereof is beyond reasonable doubt.” He added: “The Prevention of Electronic Crimes (Amendment) Ordinance, 2022 was promulgated in derogation of the Constitution and the fundamental rights guaranteed thereunder, particularly Articles 9, 14, 19 and 19-A. The jurisdictional preconditions were also not in existence.”

“The Prevention of Electronic Crimes (Amendment) Ordinance, 2022 and promulgation thereof is declared as unconstitutional, invalid beyond reasonable doubt and it is, therefore, struck down,” declared Justice Minallah.

He also said the offence under section 20 of the Prevention of Electronic Crimes Act, 2016 to the extent of the expression “or harms the reputation” and the punishment thereof is unconstitutional, invalid beyond reasonable doubt and is, therefore, struck down.

The IHC chief justice said the proceedings against the petitioners in the connected petitions are consequently a nullity and thus, quashed. However, the aggrieved complainants would be at liberty to avail the remedies provided under the respective laws in the context of defamation.

Legal fraternity says PECA Ordinance 2022 'reflection of extremism'

He said: “The Federal Government is expected to review the defamation laws, particularly the Defamation Ordinance, 2002 and thereafter, propose appropriate legislation to the Majlis-e-Shoora (Parliament) for making its implementation effective.”

Justice Minallah directed, “The secretary, Ministry of Interior, to probe into the conduct of officials of the Cyber Crime Wing of Federal Investigation Agency, which had led to widespread abuse of powers and the consequent grave violations of fundamental rights of the citizens.”

The secretary was asked to conclude the probe within 30 days from the date of receiving a certified copy of this order and inform the Registrar regarding action taken against the delinquent officials.

The PFUJ through advocates, Adil Aziz Qazi and Haseeb Hassan had filed the petition 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, organisation, authority or any other body established by the government.

The Pakistan Broadcasters Association, 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 moved the IHC through senior lawyer Munir A Malik.

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 had 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 cognisable 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.

They also said that the section introduced as 44A (5) is a colourable piece of legislation and shall pressurise 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 petitioners prayed to strike down the PECA Ordinance as being ultra vires the Constitution.

Copyright Business Recorder, 2022

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