Journalists' union challenges Peca ordinance in IHC

The Pakistan Federal Union of Journalists (PFUJ) on Tuesday filed a petition in the Islamabad High Court (IHC) challenging the Prevention of Electronic Crimes (Amendment) Act Ordinance 2022.

The high court will hear the petition tomorrow (Wednesday) at 9am.

President Dr Arif Alvi had promulgated an ordinance on Sunday to amend the Prevention of Electronic Crimes Act, 2016 (Peca).

Under the ordinance, online defamation has been made a non-bailable, cognisable offence and the jail term for defamation has been increased from three years to five years. The ambit of the Federal Investigation Agency (FIA) has also been broadened.

Read: Defamation amendment goes against decisions of courts

The president and the federation of Pakistan through the secretaries of the law and information ministries have been made respondents in the petition, a copy of which is available with Dawn.com.

The petition states that the respondents tried to "sneak amendments to existing laws at the eleventh hour" despite the fact that the upper house of Parliament was in session a day before the ordinance was promulgated.

"It appears that the respondents had already prepared the draft of the ordinance and were waiting for the ongoing session to expire in order to avoid the due process of legislation," the petition reads.

The journalists' union said that the ordinance was promulgated without passing the "necessary tests imposed under the Constitution of Pakistan for legislation through the mode and manner of ordinances", adding that the promulgation was based on "malice".

It noted that the Senate was in session till Feb 17, while the National Assembly session scheduled for Feb 18 was called off at the eleventh hour.

The petition said that there was no "emergency situation" that called for issuing an ordinance of this nature, adding that it could have waited till the NA session was called.

Commenting on the changes made to the law, the petition said that the word "natural" had been omitted from Section 20 in an "illegal and unlawful manner", while by adding institutions, associations and corporate persons to the law, the respondents tried to "criminalise the civil wrong already defined and available under the law".

"The weaponisation of the section against print, electronic and social media is against the constitutional rights of freedom of expression as provided under Article 19 of the Constitution."

The petitioner also stated that the insertion of Section 44-A went against the constitutional freedom of the judiciary. It added that the court could not be dictated by the legislature and by doing so, the independence of the judiciary was being undermined.

"Killing free speech in the country is tantamount to [sabotaging] democracy in the country. It is ironic that the government is moving towards criminalisation of free speech at a time when the entire world is moving towards de-criminalising defamation," the petition said, adding that it was a crude attempt by the government to "browbeat its opponents".

Salient features of ordinance

The PTI government has promulgated the ordinance at a time when the legality of Peca’s Section 20 that criminalises defamation is already under examination before the Islamabad High Court.

The law has rendered the recent jurisprudence of the superior courts irrelevant that was evolved in the cases registered against journalists and bloggers on the complaints of people other than the aggrieved persons, as the IHC had made it clear that nobody except the "aggrieved person" could file a complaint against defamation, but after the promulgation of the ordinance any person or institution, not necessarily the aggrieved person, could file a defamation case.

In addition to defining the nomenclature of the aggrieved person in Section 20, the punishment has been enhanced from three years to five years.

While explaining salient features of the amendments to Peca, federal Law Minister Barrister Farogh Naseem forcefully defended the government’s move by highlighting that it gave right to anyone, and not just the aggrieved person, to file a complaint against online defamation. He said it was only aimed at bringing about "reforms in the media", where disinformation had badly damaged social norms and defamed many including the former chief justice of Pakistan and family of Prime Minister Imran Khan.

While the IHC had declared that the complainant under the Section 20 would be a natural person, the ordinance has added more categories to it. The ordinance omitted the word natural in the heading of Section 20, which was previously titled “offences against the dignity of natural person”.

Through another amendment, online defamation would become non-compoundable offence, meaning that the aggrieved cannot settle the matter out of court despite reaching a compromise with the complainant. Another amendment to Section 44 of Peca sets a six-month timeline to dispose of the trial and asks the high court to appoint a judge under Peca.