Daily Times

The Prevention of Electronic Crimes Bill, 2015 has created a storm of sorts among sections of the liberal media. The bill has reportedly been approved by a standing committee of the National Assembly and is now set to be tabled before the assembly itself. One of the graphics circulating social media states in bold capital letters, about the bill, “Did you know that political criticism and expression in the form of analysis, blogs, cartoons and memes has been criminalised?” A terrifying thought, indeed. Upon seeing this graphic, one would think that freedom of expression will be curtailed to the point of being nearly finished altogether. A popular social media page passionately evokes romantic images of revolution and says about the bill, “The powers of the status quo have realised that if this freedom of the Pakistani people, which the internet has given them, continues to exist, soon there will come a time when Pakistan would really begin changing from within. The PML-N is a fascist political party, which should be equated with the Nazis of Germany.” The unexciting fact of the matter is that there is hardly an ounce of truth to this fear mongering.
The information about the bill that is being shared is largely selective and out of context. The offences laid out in the bill are all prefixed with the requirement of “intention” or “malicious intent”. It is being proclaimed from the proverbial rooftops of social media that the words “malicious intent” are vague and arbitrary and that anybody can be construed to possess malicious intent. This could not be further from the truth. Malicious intent, as a legal requirement, is difficult to prove in a court of law and it has been defined and redefined numerous times over the course of over a century in the common law system.
Another provision of the bill that has caused much anxiety is Clause 18, which is titled ‘Offences against the dignity of the natural person’. It is argued that this clause, if passed by parliament as is, will entail the prosecution of anyone who criticises the government, particularly the prime minister. Social media has gone into a great frenzy over this, perhaps because, admittedly, the funniest memes out there involve depictions of the prime minister and his numerous follies. In actuality, this clause is actually a ‘lite’ version of the chapter on defamation that already exists in the Pakistan Penal Code (PPC). The clause reads, “Whoever intentionally publicly exhibits or displays or transmits any false intelligence, which is likely to harm or intimidate the reputation or privacy of a natural person shall be punished with imprisonment for a term, which may extend to three years.” The requirements to prove this offence are so numerous and difficult that it will be nigh impossible to prove in a court of law if the bill is passed in its current form. Firstly, the information will need to be false and it is well settled that caricatures do not fall within this. Secondly, it will need to be proved that the person sharing the false information was doing so intentionally, which includes having knowledge that the information/intelligence is false.
The bill actually needs to be applauded for criminalising hate speech, spoofing, spamming and, most important of all, the superimposing/editing of faces and pictures of people in compromising positions. Now, that does not mean that the bill is all hunky-dory. The expressions “critical infrastructure” and “unauthorised information” need to be better defined. Most of all, clause 34 needs to go, which reads, “The authority (PTA) is empowered to manage intelligence and issue directions for the removal or blocking of intelligence through any information system. The authority or any officer authorised by it in this behalf may direct any service provider, to remove any intelligence or block access to such intelligence, if it considers it necessary in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof…public decency, morality. ” This clause is hopelessly vague and arbitrary, and suffers from what is called excessive delegation, which in a nutshell means that too much power is delegated to an undemocratic functionary/body.
What needs to be kept in mind is that this bill has not even been tabled before the National Assembly yet. It still has to face scrutiny from both houses of parliament and even if the bill is enacted as is, provisions like Clause 34 will not survive the writ jurisdiction of the superior courts. The Supreme Court (SC), in Chief Justice (CJ) Iftikhar Chaudhry’s first major decision in the Hisba Bill case back in 2005, has already held provisions like Clause 34 to be unconstitutional. Perhaps the deluge of (mostly inaccurate) criticism should cause parliament to remove this section altogether, although it might actually be salubrious for parliament to pass Clause 34 in its current form, thereby allowing the judiciary to strike it down. This would provide the judiciary a foothold to go into detail about how the blocking of websites such as YouTube and WordPress is a violation of the freedoms of expression and information guaranteed in Articles 19 and 19 A of the Constitution, a foothold the judiciary has lacked in the YouTube case, which is still pending before the Lahore High Court (LHC).
It goes without saying that the legislative track record of the present government is clearly atrocious, what with the Protection of Pakistan Act, the Fair Trial Act and, worst of all, the 21st Amendment to the Constitution, which has bestowed on us the scourge of military courts. The Prevention of Electronic Crimes Bill, 2015, however, does not fall into this category. Granted, the bill has issues but criticism of the bill must be informed by an actual reading and understanding of it rather than vociferous polemic that is gleaned from bold capital letters on the misinformed social media.

The writer is a lawyer and former law clerk to the CJ of Pakistan. He is currently pursuing a Master of Laws at Harvard Law School and can be contacted at zhashmi@llm16.law.harvard.edu