Daily Times

Since the country’s founding in 1947, Pakistan has had a lengthy history of controversial laws. Soon after independence, the country’s first constitution, which established a parliamentary form of government, was drafted. However, the democratic system was short-lived, as the country’s military intervened in 1958, imposing martial law and suspending the constitution. Over the next four decades, Pakistan saw periods of military rule alternated with brief civilian regimes. During both military and civilian governments, several authoritarian laws were enacted, including the Defense of Pakistan Rules, which gave the military broad powers to arrest and detain individuals without trial, and the Maintenance of Public Order Ordinance, which criminalized peaceful protest and assembly. While discussing authoritarian laws, one cannot forget the Hudood Ordinances, which introduced harsh punishments for “moral crimes.”

Even in today’s world, when there is a strong emphasis on the protection of fundamental rights, Pakistan has not shied away from enacting such legislation. The Prevention of Electronic Crimes Act (PECA) is a cybercrime legislation passed in Pakistan in 2016. While the goal of the law was to deter illegal activity online, the law’s execution has raised several concerns about its impact on fundamental rights.

PECA has been abused to allegedly register fake cases against workers of political parties as a tool for silencing opposition.

One of the most noteworthy advantages of the PECA is that it criminalizes previously unpunished electronic crimes such as hacking, identity theft, and cyberstalking. This gives law enforcement agencies the legal authority to investigate and prosecute such violations. PECA also requires internet service providers and other intermediaries to collaborate with law enforcement agencies in the detection and prevention of cybercrime. Another beneficial aspect of PECA is that it safeguards important information infrastructure, which is essential for national security. Regardless of what has been discussed above, there are numerous concerns with the legislation, the most pressing of which is that it contains measures that impair free expression and the right to privacy. Further, it contains ambiguous and broad provisions that can be easily misinterpreted and abused. Section 34 of the law, for example, criminalizes “glorification of an offence or a person convicted of a crime,” which is overbroad and can be used to target journalists, activists, and ordinary citizens who express their thoughts online. This provision also encourages self-censorship and prohibits people from speaking out on issues of public concern, which is a violation of free expression. The provision corresponds to Section 66A of India’s Information Technology Act, which was struck down by the Indian Supreme Court in 2015 for being unconstitutional.

Another flaw of PECA is its lack of transparency and accountability. The law gives law enforcement authorities broad powers to investigate and prosecute electronic crimes, with little oversight. As a result, countless individuals have allegedly been wrongfully charged and punished. It was seen in recent days that PECA has been abused to allegedly register fake cases against workers of political parties as a tool for silencing opposition. Furthermore, sections in PECA violate international human rights norms such as the right to privacy and due process. Section 37 of the PECA, for example, permits the government to prohibit access to any internet content it deems undesirable, with no judicial review. This provision violates the right to freedom of expression and information, as well as the principle of proportionality.

In addition to the impediments provided above, another grave concern in the implementation of the law is the insufficiency of law enforcement personnel designated for the task. The Cyber Crime Wing of FIA was tasked with the implementation of PECA, which doesn’t have adequate human resources for catering for the 231 million population of Pakistan. When the population of the country is compared to the number of employees of the FIA’s CCW, an employee of the CCW is responsible for more than 550,000 people.

To summarize, PECA is a step in the right direction for combating cybercrime in Pakistan; nevertheless, additional efforts can be taken to improve PECA’s implementation. To start with, the law should be amended to eliminate unclear and overbroad provisions that can be abused. This will make the law more clear and more certain, lowering the risk of violations of free expression and speech. Secondly, the execution of PECA should be made more transparent and accountable. Law enforcement authorities should be compelled to comply with due process and provide reasons for their actions, which will serve to reduce the possibility of wrongful accusations and penalties. Thirdly, there should be increased cybercrime awareness and training for law enforcement and the general public. This will aid in the detection and prevention of cybercrime, as well as the effective enforcement of the law. Fourthly, as envisioned in the law, special training should be conducted for Presiding Officers of courts along with the prosecutors to enable them to handle such cases. Pakistan can also learn from India’s experience in implementing similar legislation and take a more nuanced approach to ensure that fundamental rights and freedoms are protected while ensuring national security.

The writer is a lawyer and can be reached at mumerrafiqawan@gmail.com.

He tweets @mumerrafiq.