Fact check: Govt has designated Islamabad courts for Peca offences, not special courts for ‘digital terrorists’

Certain news outlets reported on Tuesday and Wednesday that the federal government had established special courts in Islamabad, with some saying they were to try “digital terrorists”. However, the courts established were regular ones for offences related to the Prevention of Electronic Crimes Act (Peca), 2016.

During a press conference on Monday, Inter Services Public Relations Director General Lieutenant General Ahmed Sharif had said that a false narrative was being propagated against the army and its leadership on social media, where “digital terrorists” were using tools such as cell phones, computers, falsehood, and propaganda to impose their will on society “akin to terrorists”.

The same day, PTI spokesperson Raoof Hasan was arrested during a raid conducted by the Islamabad police and Federal Investigation Agency on the party’s digital media wing with the interior ministry accusing the party of peddling “anti-state propaganda”.

The term “digital terrorism” entered the country’s political vernacular quite recently when a top military moot used it on May 30, 2024. There are no laws in Pakistan for “digital terrorists” or “digital terrorism”. Section 8 of Peca deals with cyberterrorism.

Express Tribune published a report on Wednesday titled: “Govt establishes special courts to tackle ‘digital terrorism’”.

It said the federal government had established the special courts under Peca to trial “digital terrorists”, adding that the decision came after a law ministry notification about the setting up of the special courts.

“In pursuance of Section 44 (1) of the Prevention of Electronic Crimes Act, 2016 (XL of 2016), the Federal Government in consultation with the Chief Justice of the Islamabad High Court, Islamabad, is pleased to designate the courts of Additional District & Sessions Judges and Civil Judges-cum-Magistrates of Civil Districts & Sessions Divisions (East) & (West), Islamabad for the trial of offences under the said Act in their respective jurisdiction,” the reported quoted the text of the alleged notification.

It also quoted a “ruling coalition source” as saying on the condition of anonymity that “the government has designated special courts in Islamabad under Peca to try digital terrorists and those involved in spreading anti-state propaganda through digital content.”

Similarly, Geo News and 24 News also published reports on Wednesday and Tuesday about the formation of the special courts.

A fact check was initiated to determine the veracity of the report due to noted digital rights expert Fareiha Aziz pointing out concerns in the alleged development and saying what it said was not the case.

Contacting Dawn.com correspondent Umer Mehtab, who covers court reporting in Islamabad, for corroboration of the alleged notification yielded that it was authentic.

The notification was issued on July 19 and the text was the same as reproduced in the Express Tribune report.

However, unlike the anonymous “ruling coalition source” quoted in the report, the notification did not refer to the designated courts as special courts nor did it say they would be trying “digital terrorists”.

It said the courts were designated under Peca’s Section 44(1) which says: “The federal government, in consultation with the chief justice of respective high court, shall designate presiding officers of the courts to try offences under this act at such places as deemed necessary.”

It also said that the courts would try offences under Peca, which notably does not mention “digital terrorist” or “digital terrorism” anywhere.

Meanwhile, in an interview on Friday on Dawn News English programme ‘Spotlight’, lawyer Rida Hosain said: “There is no such term as digital terrorism or digital terrorist within our legal framework. It is just not defined.”

She said she was “not clear” what the military spokesperson or government officials meant when they used the terms since “the law does not define it”.

Aziz concurred with her, saying: “When these phrases are thrown around … they have no legal basis.”

Meanwhile, Peca’s Section 44 or the act anywhere does not use the term or phrase of “special court”, including when referring to those courts that will be designated to hear offences related to it.

A “special court” is a specific legal term for a particular category of courts and not a general descriptor which can be used generally.

As per the definition on the Ministry of Law’s website:

“Special courts were established under Section 8(i) of the Protection of Pakistan Act, 2014 to provide protection against waging of war or insurrection against Pakistan, prevention of acts threatening the security of Pakistan, speedy trial of offences falling in the Schedule and for matters connected therewith or incidental thereto.

“The government, after consultation with the chief justice of the concerned high court, may appoint any person as judge of the special court constituted under this act who is or has been a sessions judge in any province of Pakistan, or has been an advocate of the high court for a period of not less than ten years, and is not more than seventy years of age.”

Meanwhile, unlike Peca, laws such as the Anti-Terrorism Act, 1997, or the Sindh Building Control (Amendment) Act, 2013, do use the phrase of “special courts” and lay out procedures for their establishment.

This was further corroborated by searching for “special court” on the law ministry’s website that yielded various notifications for the appointments of judges of various special courts for offences related to treason, narcotics, smuggling, terrorism and more.

What was seen in the various notifications, unlike the notification for the Islamabad courts, is that they specifically used the phrase “special court” when referring to the new court being designated.

According to an April 10, 2024, news report from leading English publication Dawn, special courts, along with administrative tribunals, are different courts established under federal and provincial law, including anti-terrorism, banking, consumer courts and other appellate tribunals, and are supervised by ministries at the federal level and by departments at the provincial level.

Along the same lines, Aziz, the co-founder of Bolo Bhi, an advocacy forum for digital rights, said in a July 24 X post while responding to the Express Tribune report: “This is off. Court notification is for Peca courts. All cities have designated Peca courts. This is for the new judicial complex in Islamabad, notification was awaited for a while. Unconnected to digital terrorism.”

In a follow-up post, she said: “This notification was pending for a while and was required so trial of cases could proceed before courts of competent jurisdiction. Special courts under Peca mean designating existing courts as Peca courts where trials are conducted. And that’s about all that has happened.”

Summing up the situation in another post, the digital rights expert said: “No special courts have been set up for digital terrorism. These are regular Peca courts which exist in all provinces.”

Notifications for the designations of courts to hear Peca-related offences for Sindh, Punjab, Balochistan and Khyber Pakhtunkhwa also showed that they did not use the phrase “special court” anywhere.

Dawn.com correspondent Umer Mehtab and The Nation correspondent Ali Hamza, who both cover court reporting in Islamabad, also confirmed that the courts set up as per the July 19 notification were normal courts to hear Peca offences instead of “special courts” to try “digital terrorism”.

Hamza further corroborated that notifications for the designation of special courts included that particular legal term in their text. He added that special courts could only be set up if a particular law enshrined the process of establishing them to try offences under it — which Peca does not.

Additionally, as per Wednesday’s Express Tribune report, “sources in the ruling coalition revealed that the recently-arrested PTI officials, including Information Secretary Rauf Hasan … could also be tried in the newly-designated courts.”

However, none of the news stories from leading news outlets Dawn.com, Geo News or Express Tribune on Hasan’s Wednesday hearing referred to the court as a special court.

Furthermore, in a June 6 order about a case regarding the jurisdiction of the judge of a special court to try Peca offences, Islamabad High Court Justice (IHC) Babar Sattar held:

“The court of special judge established under section 3 of the Act of 1958 is not a court that has been conferred jurisdiction under any law to take cognizance of and try Peca offences. In order to designate the court of special judge for purposes of Section 44(1) of Peca, the federal government would first need to amend the Schedule to the Act of 1958 to include therein Peca offences in relation to which the court of special judge could then be conferred with jurisdiction.”

He said that a criminal court that could be designated to try Peca offences was a court of a judicial magistrate, sessions judge or additional session judge.

Justice Sattar had ordered the government to designate judges of criminal courts of appropriate jurisdiction as per Peca’s Section 44(1) within two weeks, adding that Peca cases pending in special courts would subsequently be transferred to the newly designated courts.

Therefore, the fact check determined that the claim regarding special courts being established in Islamabad to tackle digital terrorism is misleading.

While new courts have been designated by the federal government in consultation with the IHC chief justice, they will include trials for cases charged under Peca sections instead of “digital terrorism” and are not special courts as defined by Pakistan’s various laws and statutes.

Special courts are a distinct category of courts whose parameters are outlined in the law and Justice Sattar also specifically ordered the government to transfer Peca cases in Islamabad special courts to the appropriate designated courts.

Therefore, to continue to use an exact and specific legal term of “special courts” to refer to the courts set up to hear Peca offences has the potential to misguide and mislead the public into thinking it is an unusual development instead of the normal procedure that it is, as apparent from the July 19 notification.

This fact check was originally published by iVerify Pakistan — a project of CEJ and UNDP.