Silencing dissent: Living under Pakistan's repressive Electronic Crimes Act

On 18 February 2022, amendments were made to the Pakistan Electronic Crimes Act (PECA) which increased the prison sentence for defamation to three to five years. Passed with the help of two presidential ordinances, Pakistan's already controversial cyber-law has been made more controversial. 

According to Pakistan’s Federal Minister for Law and Justice Barrister Muhammad Farogh Naseem, the two presidential ordinances were solely aimed at criminalising the spread of so-called "fake news". 

"PECA has been used to silence freedom of expression on the pretext of combating ‘fake news’, cybercrime, and misinformation"

The minister said: “It is high time that whatever wrong has been committed in the past shouldn’t happen anymore as Pakistan should be put on the right path and its foundations should remain.”

Initially, PECA had been launched as part of Pakistan’s National Action Plan in response to large-scale terror attacks in 2014. When it was passed on 11 August 2016, government officials stressed the law would provide an “unfettered ability to monitor, locate and prosecute alleged militant activity.”

But some ambiguities in the drafting of the law had created confusion as to what exactly amounts to criminal conduct.

As per the newly amended PECA Ordinance 2022, the definition of a “person” has now been broadened to include any authority, organisation, company and association, and anyone found guilty of attacking a person’s “identity” could be sentenced to five years instead of the previous three years. 

Social media comments are equated with the deliberate “defamation” of government authorities.

According to Amnesty International, expanding PECA’s remit to include online statements about government institutions violates Pakistan’s international obligations.

Nadia Rehman, acting deputy director for South Asia at Amnesty International said, “PECA has been used to silence freedom of expression on the pretext of combating fake news, cybercrime, and misinformation.

“This amendment not only violates the Pakistan Constitution but also puts anyone who questions the government or other state institutions at further risk," Nadia added. "It particularly endangers journalists, human rights defenders, and political opponents who run the risk of prosecution for merely doing their jobs.”

Dr Ahsan Rajput, a jurist and fellow at the Lauterpacht Centre of International Law at The University of Cambridge told The New Arab, “It's ironic that kakistocracy always unfolds towards authoritarian rule.

"When governments try to curtail the fundamental human right of expression and information, an atmosphere of suppression and suffocation is created for citizens. The PECA ordinance was an attempt in the same direction by the IK [Imran Khan] government, wherein failures of governance were converted by curtailing the right of expression.”

While ordinary citizens became cautious about what they shared on social media, journalists started self-censorship and could not report freely.  

In Dr Rajput’s opinion, “Although the courts tried to overt the same and uphold fundamental rights enshrined in the constitution of Pakistan, the government has tried using other mediums at its disposal to suppress the same voices.

"The forced dismissal of a large number of mainstream journalists from media houses was an example of such suppression. Both the civil society and intelligentsia were way-laid in the same covert manner and cornered systematically. The current government has tried to do all this in a single tenure.”

"The Prevention of Electronic Crimes Act neither protects the public from legitimate cybercrime concerns nor respects fundamental human rights. The new amendments will further embed violations of basic rights with a thin veneer of legality"

The rising tide of opposition eventually led the Pakistani government to decide to withdraw these two provisions. So what caused this U-turn?

First, the courts pointed out various flaws and ambiguities due to which the law could not be implemented. In fact, the law was so flawed that no ministry in Pakistan’s federal government was ready to accept responsibility.

In the end, the Interior Ministry, Information Ministry and Information Technology Ministry all stepped back and refused to take responsibility.

Furthermore, The Supreme Court disapproved of the frequent use of presidential ordinances instead of referring a matter to parliament.

A three-judge special bench led by Justice Ijazul Ahsan also observed that PECA could not curtail fundamental rights like freedoms of expression and press as they were enshrined in the Constitution.

Second, the Pakistan Federal Union of Journalists (PFUJ) and the Human Rights Commission of Pakistan (HRCP) proclaimed that the amendments to PECA were undemocratic. By not consulting with civil society groups, the government had avoided public scrutiny completely.

As Zubair Faisal Abbasi, an independent public policy specialist told The New Arab, “The PECA Law and then its amendment should have been brought in after open, broad-based, and transparent consultations with civil society organisations such as human rights groups.”

In Abbasi’s opinion, "In its current form, it is toothless to protect natural persons against defamation but takes away the right to express an opinion on institutional arrangements who executes public policies. It is warranted to either repeal it or make fundamental changes in it to serve the purpose of protection against electronic crimes.”

Third, other political parties had simply rejected the presidential ordinances, saying that such legislation gives no room for national debate and deprives the Parliament of its constitutional right to legislation. They also felt apprehensive that the laws would be mainly used against them.

Patricia Grossman, Associate Director of Asia at Human Rights Watch says, “The Prevention of Electronic Crimes Act neither protects the public from legitimate cybercrime concerns nor respects fundamental human rights. The new amendments will further embed violations of basic rights with a thin veneer of legality.”

Finally, the government has since become stuck in a political quagmire with the PM having to face a no-confidence vote in parliament. Getting busy elsewhere, the administrator may have wanted to close this Pandora’s box as it now has bigger problems to resolve.

Instead, the Pakistan government needs to have a moderate law that provides practical rules and regulations in line with the modern media landscape. Having ratified the International Covenant on Civil and Political Rights (ICPR) which protects the right to freedom of expression along with necessary restrictions, Islamabad will have to broaden its approach on this matter.

Sabena Siddiqui is a foreign affairs journalist, lawyer, and geopolitical analyst specialising in modern China, the Belt and Road Initiative, the Middle East, and South Asia. 

Follow her on Twitter: @sabena_siddiqi