The Prevention of Electronic Crimes Bill (PECB) 2016 was passed in the National Assembly without quorum — at that time — with 30 members in attendance. The opposition parties present in the 30 members did not object to a lack of quorum because, according to one legislator, “we did not want to harm democracy.” Unknown to these defenders of democracy, the PECB is the greatest threat to democracy and free speech in Pakistan, and the harm it will do to democracy in the country will be felt for years to come, not to mention that it will completely stifle the Internet as a medium of exchange of views.
The PECB is a draconian law that might as well have been promulgated as an ordinance by General Zia-ul-Haq. It seems that after decades of struggle, the government of Pakistan Muslim League-Nawaz has not learnt its lesson and is still wedded to the worldview of the late dictator. The said piece of legislation, a sinister attempt at controlling the Internet and stamping upon it outdated and outmoded ideas of morality, decency and ideology, is fundamentally bad. What is worse are the defences put up by the government.
The government’s defence of proposed Section 34 of the PECB sadly is that they have taken the language as is from Article 19 of the Constitution of Pakistan when empowering the Authority, and in its lieu the Federal Government with the power to censor and block content online. Crucially, however, government has omitted that part of Article 19 that speaks of “reasonable restrictions” imposed by “law.” In doing so the draftsmen of this odious piece of legislation have defeated the very purpose of Article 19 and its claw-backs i.e. glory of Islam, national sovereignty, decency, morality etc. The Article 19 envisages specific and reasonable restrictions in different circumstances through a law that is passed by the legislature. It is unlikely that those who put Article 19 in our Constitution imagined that someday someone would empower the federal government to arbitrarily block whatever content they please.
It does not stop at censorship. There is the question of legitimisation of surveillance as well as search and seizure. It seems that the implications that the law would have for Article 14 of the Constitution of Pakistan that promises privacy as an inviolable right have completely escaped the government. In Pakistan’s particular conditions, to provide a legal cover for abuse of power and authority by law enforcement agencies (LEA) means that once this law passes, there would always be surveillance, both real time and through search warrants. The proposed law empowers LEAs to even resort to surveillance and search and seizure of information systems without a warrant, in the event that it is feared that the integrity of the information system cannot be secured. Everything has been left to the individual judgment of the agency official. Any official who may have a grudge against someone is likely to abuse these provisions to settle scores. Your data will never be private after this bill. Everything you do online will be recorded in a database. We would all be like cyber-prisoners in an Internet panopticon.
There are criminal provisions introduced in this bill for hate speech, revenge porn and damage to reputation. There are no two opinions that these are issues that need to be dealt with, but experience tells us that hate speech laws even in the most developed societies viz. rule of law have resulted in the persecution of weakest sections of society. In Pakistan the situation is actually worse. In Punjab, for example, government’s efforts to stamp out hate speech have only resulted in banning of religious literature of Shias and Ahmadis. Inevitably, the majorities are able to game the system, through threat of violence and by sheer numbers. Other criminal provisions deal with critical infrastructure information systems. Government is free to designate anything as critical infrastructure, which basically means that almost anything that the government deems fit can become the holy cow.
To begin with, there is no tradition of whistleblowing in the country when it comes to accountability. This will, for all purposes, stifle any attempt to keep government accountable. To give you an example, had Panama Leaks happened in Pakistan, and the PECB was in force, both those responsible for the leak and those journalists using the information so leaked would be behind bars for a very long time.
The real problem here is the mindset behind this proposed law. It is a mindset that wants to stifle free speech and freedom of choice for Pakistanis. It is an attempt to create what I had described as the ‘nanny state’ in the YouTube case three years ago. Both through the writ petition before the High Court in Lahore, and in a column for this newspaper, I warned against the pitfalls of going down that route i.e. the state assuming the role of a nanny to its citizens. Since then countless websites have been blocked as being immoral and against the cultural values of Pakistanis. It is ironic that the state needs to determine what the cultural values of Pakistanis are. It is really a totalitarian worldview that our state seeks to impose on the people of Pakistan. What if a Pakistani disagrees with your ‘cultural values’? Where in the Constitution of Pakistan does it say that the cultural values, as determined by the state, will be imposed on individual citizens? The most the state can do under the Constitution is to enable — not enforce — Muslims to live their lives according to their faith as well as to enable minorities of other faiths develop cultures freely. The Constitution of Pakistan, whatever its flaws, and there are many, does not seek to force people to live a certain way. Indeed, it gives ample freedom for the naysayers and refuseniks to live according to their lights but those parts of the Constitution are very conveniently sidestepped. Perhaps when the time is right, lawmakers and jurists of the future will finally respond to the grave assault on personal liberties and constitutional rights that successive governments have been guilty of, unconstitutionally
and arbitrarily.
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 [email protected]