Daily Times

The Senate of Pakistan has passed the Pakistan Electronic Crimes Bill (PECB) with a whopping 55 amendments. Now obviously the law must return to the National Assembly, following which it will become the law after presidential assent. As such there was much apprehension about the law, and much of it was justified. A number of organisations and individuals, including this writer, have been agitating against its passage for more than a year now. After all, we are about to regulate a hitherto unregulated space of which governments and social forces of status quo are deathly afraid.

Yet unfortunately, at this crucial juncture when the law is about to be passed, those who have appropriated for themselves the leadership of civil society on this issue have been so massively ill-equipped and inept in their criticism of the law that they have blown any real chance of a constructive engagement on the real issue with the bill. One must call a spade a spade. Amongst the illustrious list of civil society representatives whose opinions have been elicited by the honourable senators, you have self-proclaimed non-practising lawyers who have never worked a day as lawyers in their lives. The legal profession needs serious reform and regulation but that is an issue that calls for a separate article.

It, therefore, remains a mystery to me why eminent lawyers like Salman Akram Raja and Babar Sattar who know their constitution as well as their Internet were not given a more prominent advisory role in this important critical final stage. Thankfully, PPP’s senators include seasoned operators like Aitzaz Ahsan and Sherry Rehman whose interventions, through amendments, have ensured that the jagged edges of what promised to be a draconian piece of legislation are to some extent smoothened. Most notable and of prime importance was the right to appeal in the High Court against a decision in review by the authority to block or remove certain content online. Yet despite all their best efforts the Senate and all the legislators involved in this law, either by design or because they were not advised properly, left a gaping hole in the law. It is on this point that the proposed law is most problematic: the reasons for legal online censorship.

During the YouTube case, which I fought on behalf of Bytes for All before the Lahore High Court, I had the opportunity to look at Article 19 of the Constitution of the Islamic Republic of Pakistan very closely. This article gives us the right to freedom of expression and speech. As with the Indian constitution, whose scheme our constitution closely follows, this right is subject to certain restrictions. Indeed our constitution has replicated the language of the Indian constitution with one addition i.e. glory of Islam. So this right is subject to reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, commission of or incitement to an offence.

So what did the draftsmen behind the PECB do? They took the language of the Constitution, and put the exceptions as an exhaustive list of reasons for which online content can be censored in Pakistan under Section 34 of the PECB, though mercifully the reference to relations with foreign states was omitted. The important part that they left out was that the reference to “reasonable restrictions” imposed by “law.” In other words, the Pakistan Telecommunication Authority (PTA) can under PECB decide which content online falls in those exceptions without a framework to judge the issue against. Are they planning on hiring muftis or are they going to refer the issue to the Council of Islamic Ideology, the law does not say. Similarly, how are they going to determine whether something is against the integrity of Pakistan or amounts to contempt of court? The law is silent.

The Constitution envisages the exceptions to freedom of speech to have come into operation through reasonable restrictions, which would have to be explained in black and white through a piece of legislation. Therefore, for example, what is against the interest of the glory of Islam should first have been debated by the legislature, and then put in through law, which, in turn, had to be reasonable. All this has been bypassed. Now the PTA will decide what is or what is not decent and moral and what might hurt public order in the country.

So what could have been done differently? Ideally, Section 34 should have been left out altogether. Barring that any censorship should have been made subject to legal due process i.e. a court order expressly stating why certain content online was illegal and therefore subject to removal or blocking. The PTA should have been the executing agency of the block, and not a quasi-legal body determining what content was in the interest of the moral and religious health of the nation.

These points were not agitated by our digital rights defenders. Indeed they failed to raise any concrete issues whatsoever, and the issues they did raise were more about the implementation of the law, and which are going to be settled as jurisprudence develops under it. It seems that their objective from the start to the end was obstruction (there were notable exceptions though; some were more serious than others). Hell bent on stalling the lawmaking process instead of improving it, their hubris made them incapable of grabbing the opportunity to ensure that the law was truly people-friendly. Now most of them are found on the social media bemoaning the legislative process, a process that they failed to utilise properly in the first place.

A law on cybercrimes had to be passed. Pakistan needed intermediary liability protection, which has been built through Section 35 of the PECB. This was important to ensure that Pakistan remains open for business to international corporations that might want to invest here, not to mention to protect existing service providers including telecom companies. Pakistan also needed laws against child pornography and online harassment. On these points the law is quite admirable. So stalling the law was never an option, unless, of course, one was only interested in global self-promotion and donor funding. It seems that in the end, personal considerations trumped the cause of digital rights in Pakistan.

The writer is a lawyer based in Lahore and the author of the book Mr Jinnah: Myth and Reality. He can be contacted via twitter @therealylh and through his email address yasser.hamdani@gmail.com