PECA Ordinance: a weapon against freedom of expression?

On February 18, 2022, the Government of Pakistan approved an amendment in the widely criticised Prevention of Electronic Crimes Act (PECA) 2016 through a presidential ordinance to supposedly curb the spread of ‘fake news’ in the country.

The amendment, titled Prevention of Electronic Crimes (Amendment) Ordinance 2022, is made in section 20 of the Act to expand the scope of criminal defamation to protect government institutions, departments and public office holders.

Through this change, now anyone, including public officials, departments or people representing them, can move courts against citizens who they believe to be posting defamatory content on the internet. The offence is now non-bailable, and the accused will have to spend time in prison until the trial ends within six months.

Various stakeholders, including the public, have raised concerns over the potential of abuse of the law against criticism of government policies and individuals, and have rightly termed it an attack on freedom of expression.

In a joint statement, various media bodies including the Pakistan Federal Union of Journalists (PFUJ), All Pakistan Newspapers Society (APNS), Council of Pakistan Newspaper Editors (CPNE) and others, said that the Ordinance is a “blatant move to stifle media independence, freedom of speech and dissenting voices.” They further stated, “It is evident that the Government is adamant to push through its ill-conceived and draconian agenda through various Presidential ordinances.”

The process through which it has been passed warrants questions regarding the urgency that the government has acted with. It made use of Article 89 of the Constitution of Pakistan that empowers the president to sign an ordinance under emergency situations.

However, during a hearing on petitions filed by PFUJ and PPP senator Farhatullah Babar on February 24 in Islamabad High Court, Chief Justice Athar Minallah questioned the emergency for which the ordinance was passed instead of sent to the Cabinet for approval. He termed PECA a “draconian law” and remarked that the PECA Ordinance is clearly in violation of Article 19 of the Constitution.

Various civil society and digital media organisations said, “The use of an Ordinance to amend a law passed by Parliament is extremely worrisome and part of an alarming trend where the government is using its extraordinary powers of Ordinance-making to erode the powers of the Parliament and lawmaking institutions.”

The lack of stakeholder and public consultation is akin to deflecting comments and criticism on the amendments, and certainly not a unique step taken by the government in passing a legislation. In fact, a similar pattern was witnessed when the Removal and Blocking of Unlawful Online Content (Procedure, Oversight and Safeguards) Rules 2021, commonly known as the Social Media Rules, were initially passed in secrecy in early 2020. It was only after a source revealed a copy of the Rules to civil society that they were made public.

The repeated disregard of democratic lawmaking process indicates an attempt to stifle civil liberties in the country rather than protecting them as a duty to the citizens.

Laws that are passed behind closed doors lose their legitimacy as they indicate the lawmakers’ lack of intention for them to be for public good; and they can certainly not be made through Twitter polls. A democratic process of lawmaking requires open and transparent consultation with stakeholders, including the general public – a principle that has been reminded to the current government multiple times in the past four years.

Owing to the history of how section 20 has been weaponised against journalists, critics, dissidents and survivors of gender based violence, the Ordinance that opens existing law to more abuse will be used against those critical of state policies, procedures and officials, and directly threatens freedom of expression, freedom of the press and access to information which are fundamental rights protected under the Constitution of Pakistan and multiple international treaties that Pakistan is a signatory of.

The Government of Pakistan has been increasingly focused on controlling the spread of ‘fake news’ – a term that has largely been used to discredit journalists and activists, and has expressed intention to introduce policies to curb it, especially the kind targeted critical of the government and its representatives. This Ordinance is the first piece of legislation that criminalises this kind of online defamation.

In light of this, it is not rare for internet users (mostly social media teams of political parties) to engage in heated political arguments that escalate to organised campaigns with vile and insinuating claims against each other – in fact this is the gist of political social media wars as they happen on Pakistani internet.

This Ordinance will not only enable these wars to lead to arrests of individuals for partaking in political rivalry, but would also be used against critics, academics, journalists and activists who often share opinions that many do not or may not agree with. In addition, this change is a direct threat to women and gendered minorities who routinely turn to the internet to demand justice for the abuse they face offline.

The #MeToo movement in Pakistan, for instance, which began solely through the internet, helped many women to share their experiences of violence not just at the hands of regular individuals but by some influential people as well. Young students shared their experiences of institution-wide harassment incidents in closed as well as public spaces online while defying the policies of schools that threaten students to remain silent in order to protect integrity of the institution. The PECA Ordinance is a clear attempt to enable these entities to use legal mechanisms as a weapon against survivors of abuse: do not speak up or you would be jailed for six months.

One could argue that this law is only targeted towards disinformation and defamation, or as the government calls it - ‘fake news’, but it is also not clear how ‘fake news’ is defined. A major reason why countries around the world are decriminalising defamation is because they have not been able to define it in a way that would not hinder people’s freedom of expression. Criminalising defamation not only hampers any room for dialogue or criticism, but also opens these laws to be used against individuals, as is seen and will be seen in the case of section 20 of PECA. A mainstream example of its application is the case of Ali Zafar against seven individuals who he filed a complaint of defamation under section 20. Instances like this are a reminder of how laws are used as intimidating and silencing tools against victims and survivors of abuse.

Whereas, an exclusive story by a journalist on corruption of an influential person that has not been reported previously can be termed fake news; sharing experience of sexual harassment by someone can be termed as fake news; criticism of state policies can also be termed ‘fake news’. You could receive a notice from FIA stating that a certain public official has filed a complaint against you; or a notice mentioning that someone has sued you for defamation on behalf of a political party or public official. Neither the parent Act PECA has defined defamation or ‘fake news’ precisely, nor the PECA Ordinance has made an effort to add the definition.

The intention with this amendment is clear: to control freedom of expression and criticism of the state which is a right of every citizen in a democratic country. Many of such laws are made to intimidate and force critics and opponents into silence — an intention certainly not unique to this government, in fact, all those who ruled before them have also attempted to introduce similar laws. PECA itself is the work of PML-N when it was in power in 2016 , and the potential of misuse of this law was communicated to lawmakers at the time in detail. Ironically, the current ruling party PTI opposed PECA when it was still a bill, and has now not only made the policy more regressive but has also adopted the same arguments to favour the legislation that PML-N used: protecting women of the country.

It is imperative to mention that if the law is not repealed, it will be used against the ruling party when it sits in opposition, much like how PECA is being used against those who drafted it in the first place.