SPOTLIGHT | Muzzling Dissent: PECA’s Logical End
Despite being in the middle of an ongoing global pandemic, a crackdown against journalists, political activists and members of opposition appears to be the number one priority for the state in Pakistan. The Prevention of Electronic Crimes Act (PECA), 2016 is the weapon of choice. Over the last few months, there have been a spate of FIRs against journalists while others have received summons ordering them to appear before the Federal Investigation Agency (FIA) for questioning. One tweet or a post on social media is all it takes for coercive action under the law.
Crackdown against journalists
On October 28, 2020, Executive Editor of AwamiKhabarnama.com, Umair Solangi, tweeted he was illegally detained by the Federal Investigation Agency’s (FIA) cybercrime wing. Picked up at 9pm on October 21, 2020, he was released the next day in the early hours, around 4am. Just a few days prior to this, on October 23, 2020, Ali Imran Syed, a journalist with Geo News went missing. His disappearance was connected to the CCTV footage he had obtained, of Captain Safdar’s arrest from Avari hotel in Karachi. An FIR was lodged by Syed’s brother, stating he had gone to a bakery near the house and did not return. Journalists, journalist unions, rights groups, the Pakistan Bar Council, members of opposition, all issued statements and called for his immediate recovery. The Sindh government and police took immediate notice. After much public outrage, calls for recovery and investigation into his disappearance, Syed returned home after nearly a day. His disappearance was later attributed to a case of “mistaken identity.” This is similar to journalist Matiullah Jan’s narration of his abduction in July 2020.
Picked up in the middle of the day from Islamabad, outside the school his wife teaches at, Jan’s abduction was caught on CCTV. The news of his abduction drew immediate outrage, statements by international and local groups, and calls for recovery. By midnight the same day, Jan was home. Speaking about his abduction in a video uploaded to his YouTube channel, MJTV, Jan said he was released after his abductors seemed to “realise” they had the wrong person. Prior to his disappearance, Jan was also issued a contempt notice by the Supreme Court, for a tweet about the Supreme’s Court’s short order in Justice Qazi Faez Isa’s case. Bizarre also was the explanation in Sajid Gondal’s case. A joint director at the Securities and Exchange Commission of Pakistan (SECP), his car was found parked outside the National Agricultural Research Centre in Chak Shahzad. When on September 4, 2020, he did not return, his mother filed a habeas corpus petition before the Islamabad High Court (IHC) for recovery. He returned a few days later. He was in the ‘northern areas’ with friends and did not have signals, is one version.
No surprise then that when on September 9, 2020, journalist Bilal Farooqi was taken from his house in Karachi, the immediate reaction was he had ‘disappeared,’ creating a social media frenzy. The police then informed the family, he was in their custody in connection to an FIR lodged against him. Accused of ‘hate speech’ and ‘defamatory’ remarks against state institutions, Farooqi was charged under Sections 500 and 505 of Pakistan Penal Code (PPC) and Sections 11 and 20 of PECA. Two days later, on September 11, 2020, an FIR was lodged against journalist and former PEMRA chairperson Absar Alam, under Sections 124-A (sedition), 131, 499 and 505 of the PPC, and 20 of PECA. He was accused of using derogatory language about state institutions and individuals on social media. Three days later, on September 14, 2020, journalist Asad Ali Toor tweeted a news report through which he came to know about an FIR against him. Ihtesham Afghan, a Pashtun Tahafuz Movement (PTM) activist also discovered there was an FIR against him, through a news report. While two separate cases, the FIRs were uncanningly similar. Both contained Sections 499 and 505 of PPC and Sections 11, 20 and 37 of PECA.
On October 26, 2020, Asad Ali Toor tweeted a copy of the summon he received from the FIA, ordering his attendance at their office. Toor received the summon at 9:32am, requiring him to be at the FIA office at 11am the same day. As has become practice in many instances, the summon was sent via Whatsapp. This, as it later became apparent, was in connection to the FIR against him, even though an application to quash the FIR was already pending before court. Sometimes there are FIRs and sometimes there are summons in connection with ‘inquiries and investigations’. On October 24, 2020, Mian Dawood, a Lahore-based lawyer and court reporter, tweeted a ‘notice of attendance u/s 160’ he received from the FIA, requiring him to present himself before the authority. Without providing any details as is now standard procedure with the FIA, the summon stated he was “well aware of the facts/circumstances of the said complaint.” Earlier, on October 7, 2020, Amir Mir of Googly News – a channel on YouTube – tweeted a summon he received ordering his attendance at the FIA office, purportedly, in relation to a video deemed ‘anti-state’.
On October 1, 2020 a summon issued to journalist Arshad Sulehri was tweeted by Jan. As Sulehri was in the process of filing a petition, his house was raided. Sulehri filed a petition before the IHC. The raid was also brought on record. The investigation officer, when questioned by the court, said it was merely a ‘visit’ to confirm his home address. In August, journalist Imad Zafar tweeted about a call he received from the deputy director of the FIA in relation to a complaint against him by General (retd) Amjad Shoaib. The phone call was followed by a summon. Zafar later withdrew his tweet and posted saying he was sorry if anyone got hurt by the tweet ‘which was posted inadvertently’.
Malafide in law
Unanimously quashing the government’s reference against Justice Qazi Faez Isa, the Supreme held that the reference was malafide in law, meaning that there were legal and procedural irregularities and illegalities in the manner it was put together. It took a long drawn out process to arrive at this conclusion. Justice Isa is a sitting Supreme Court Justice and was represented by a stellar legal team. Media and public attention was on his case throughout. Multiple petitions were filed and clubbed together with his case arguing against the government’s actions. The petitioners and counsels in those are well-known names within the legal fraternity; bar associations and councils became a party. And yet, none of this prevented the harassment he and his family were subjected to during this time.
Each time a citizen goes “missing,” is arrested, has an FIR lodged against them or is summoned, depending on the profile of the individual, the network they are plugged into, politics of the day and ability of others to raise their voice for them, how soon they return and what eventually happens to the case against them, if often dependent on these variables. But how is this viable and sustainable? And what of those who are not well known and have fewer resources?
Once a summon is received or an FIR registered, the first step is getting legal advice and representation. This has costs attached. With a summon out, there is a risk of escalation. In the case of an FIR, bail is required – set at an amount determined by court – which means additional costs. In Toor’s case, the FIR against him was registered in a far-flung tehsil of Rawalpindi. He first had to apply for protective/transitory bail before the IHC, then travel to the relevant court in Pindi and obtain pre-arrest bail there. But it was not as straightforward as that. Which court? The one assigned to the thana where the case was registered or a designated PECA court since there were PECA offences in the FIR. The police have no jurisdiction to register and prosecute cases under PECA. That authority lies only with the FIA as the designated investigation agency. Yet, the FIRs against Toor and others were registered by the police. The burden then falls upon those accused to point out the legal flaws through court challenges and navigate the bureaucracy that comes with it.
When FIA harassment is challenged before courts, typically they issue directions saying “no coercive action.” However, litigants are still directed to join the investigation which means appearing at the FIA office for questioning. There is no inquiry into the legality of the summons or FIRs, and resultant investigations – whether due authorisation as per law was obtained and the charge qualifies under the offence. These aspects require consideration at the preliminary stages of a case. Yet citizens are subjected to illegal and roving investigations. While the FIR against journalist Shahzeb Jillani under PECA was ultimately discharged by the magistrate as C-class, he had to obtain bail, appear before the FIA and do the round of courts. It took public outcry, media attention, notice by the human rights committee of the National Assembly and for his legal team to argue the merits and demerits of the charges before court, for the case to finally come to an end.
In an interview to MJTV, former DG FIA, Bashir Memon made several revelations about his time in office. He spoke about the pressure from the present government, to register cases and how he would serve reminders about the procedure under PECA for non-cognizable sections of the law, under which the FIA cannot act without first seeking the court’s permission. That’s what the law requires, however, FIA routinely flouts procedures under PECA.
Common in the recent FIRs is the use of Sections 499 and 500 of the PPC and/or Section 20 of PECA – a non-cognizable offence. FIA routinely issues summons without first obtaining the court’s permission as required under PECA and its Rules. It issues standard-template notices of attendance – when it’s not a phone call. Notices are not always sent by post but via Whatsapp or other social media channels. A copy of the complaint, despite requests, is never provided, unless these directions are issued by the court. In most instances, those summoned or charged in FIRs do not know the specific content the complaint is in relation to. Sections 11 and 20 of PECA are frequently added to FIRs. Under PECA, both are non-cognizable and require the court’s permission but are often applied in conjunction with Section 10, a cognizable section under PECA, or then other cognizable sections of the PPC. Registering an FIR and adding a cognizable section of the law means circumventing court and the ability to arrest. While PECA requires a warrant for search and seizure of devices, this is also a provision under the law FIA pays no heed to and violates.
In cases constructed against journalists and political activists, the accusation is usually of maligning state institutions, engaging in ‘hate speech’ and ‘defamation’ against them. However, the legal requirements set out under different sections of the law for speech to qualify as an offence, are not met. Speech under Section 11 (Hate speech) must be ‘interfaith, sectarian or racial’ in nature. Section 20 (offence against the dignity of a natural person) requires that the ‘aggrieved person’ be the complainant. Yet third parties routinely file complaints about the ‘harm to reputation’ caused to state institutions or officials, and these result in summons and FIRs. Section 10 (cyber terrorism) has to be applied in relation to Sections 6, 7, 8 or 9 of PECA, which pertain to unauthorised access, copying and interference with critical infrastructure or the glorification of an offence. These sections are not found in challans or FIRs and even if they were, are not applicable to speech except Section 9, which also lists applicable categories similar to Section 11. Most curious of all has been the addition of Section 37 of PECA to FIRs, which is not even an offence but an overbroad power given to the Pakistan Telecommunication Authority (PTA) to regulate online content.
After Nawaz Sharif’s speech at the All Parties Conference, an FIR was registered against the PML-N leader and several other party members. The charges included sedition but also Section 10 of PECA. Sharif’s FIR sparked a lot of debate on the misuse and misapplication of sedition laws. Critics pointed out that an FIR for sedition cannot be registered without the permission of the Federal Government. None of this is new. In December 2019, following the Students’ Solidarity March in Lahore, the organisers were charged with sedition. In January 2020, those protesting the arrest of Manzoor Pashteen in Islamabad were rounded up, arrested and put in jail. These included several workers of the Awami Workers Party (AWP). After much public outrage and court challenges, the charges were dropped and those arrested in Islamabad released.
Many associated with the PTM have been charged with offences against the state under the PPC and PECA across the country. Their cases are still pending. Alamzeb Mehsud was charged in Karachi and spent months in jail before the Supreme Court granted him bail. Alamgir Wazir was charged with sedition along with several others in Lahore. They were granted bail but, like Mehsud, the High Court rejected Wazir’s bail application too. Ultimately he had to approach the Supreme court, which granted him bail. The sedition case against them is ongoing. PECA cases against Professor Ismail, Hayat Preghal, Ismail Mehsud and Dr Abdul Hai are the more well known ones. There are several others and they are all still pending.
What meaning and practical value do Articles 4 and 10-A of the Constitution have? How is a trial supposed to be fair without a fair investigation. If and when the trial commences is not known. Leaving cases hanging is another harassment tactic. The accused in a criminal case has to appear at every hearing. There is always the threat of cancellation of bail. The pre-trial harassment is harrowing and used as a punishment, to teach those who don’t mind the lines a lesson, to remind them what the consequences can be. Such “legal” harassment usually achieves its goal of a retraction, apology or silence. Even in the instances in which challans and FIRs are challenged, or have been quashed or discharged by court, there is no accountability of the FIA. Who will compensate for the costs incurred and trauma faced? Initiating fresh proceedings against the FIA is not something everyone is in a position to do. Coming out of one harrowing experience, opening up a new front is not a privilege many enjoy. With no accountability, there is no deterrence for the FIA or state to repeat their illegal actions against others, so they flout the law with impunity. After all, in most cases, the objective is to exhaust the other party and send a message to others to maintain silence or face similar consequences.
Politics of change and resistance?
It was under the PML-N government that PECA was introduced. The first crackdown under it was led by then Minister for Interior, Chaudhry Nisar, in 2017. At the time it was FIA’s counter-terrorism wing which issued summons. Later, the cybercrime wing detained social media activists associated with the Pakistan Tehreek-e-Insaaf (PTI) – then in opposition – and registered FIRs against journalists. In 2020, the second wave of this crackdown continues under the PTI government. While journalists remain on the radar this time around too, the leader of the largest opposition party hailing from the heart of Punjab has been charged under a law his own government bulldozed through parliament with a two-thirds majority, and which his interior minister first weaponised against against journalists and members of opposition – PTI’s social media workers – for spreading “anti-state” and “anti-institution” content on social media.
During advocacy against PECA in 2015, members of opposition but also many within the journalist and legal fraternity undermined the threat it posed. There was much skepticism regarding claims made by digital rights and human rights groups, about what it may lead to, and the impact it would have on speech. Social media needed to be regulated, said many. Four years on, disqualified politicians find themselves censored in a stifled mainstream media. Lead anchors have been pushed off screen to YouTube channels. Social media today is their only avenue. It’s taken all this for the realisation to sink in all around, what the gravity of the situation is. The illusion that rule of law prevails or that protections under the law and Constitution are readily available to all, or the notion that surely the FIA and state “won’t go that far,” has finally shattered. It took an increase in the number of cases and for them to be lodged against those from the same fraternity, class, ideological bent, ethnicity etc, for there to be some awakening and acceptance of what is happening, and the scale it exists on. But disbelief when it happens to others till it happens to you, only enables the culture of abuse and contributes to the culture of impunity.
After a meeting with joint opposition, the Pakistan Bar Council constituted a committee of lawyers who will provide pro bono help to journalists charged with political cases. Now the question is, what does Pakistan Democratic Movement have to offer in parliament through its members? In June 2020, Senator Raza Rabbani moved a private members bill in the Senate to abolish sedition. On several occasions, the Human Rights Committees of the National Assembly and Senate have taken up the issue of FIA’s excesses. Proposals have been laid before them for the decriminalisation of defamation by repealing the laws. Members are at liberty to move bills. Will the FIA and PTA be held to account for their excesses using powers available to parliamentary committees and its members, to seek answers and check abuse?
If free expression, democractic freedoms, fundamental rights and the Constitution hold value, repealing sedition, criminal defamation laws, Sections 20 and 37 of PECA, is only a starting point. This does not mean other laws will not be misused or powers abused. Checks need to be in place for that. Unless concrete changes are made in the law and procedures, there is accountability, and the weapons employed against citizens, journalists, activists and opposition are defanged, resistance merely through public posturing and speeches will inspire little faith.
In August 2020, a statement on attacks on women in the media drew attention towards sustained attacks against them, which ranged from hacking attempts to sexualised slurs and even rape and death threats, leading many to self-censor and even question whether they should step back from journalism. They held members of the ruling party and those affiliated with it, responsible for this. The response from government officials was not just deflective but accusatory, painting themselves as victims, saying they were being “singled out.” A follow up statement endorsing the first and pointing towards a culture of abuse prevalent in all political parties was also issued. To date, there is no acknowledgment nor traction on codes of conduct for party members.
The PTI government, its ministers, advisors and supporters are quick to react to speech restrictions and rights violations around the world – especially in India. In the aftermath of the revocation of Article 370 in August 2019, both Facebook and Twitter came under heavy criticism and accusations of bias were leveled against the platforms for ‘censoring’ views critical of India’s actions and supportive of Kashmiris at the behest of the Indian government. Not just government officials, but Pakistan citizens were critical too. Turned out though, it was not in response to a direct government report but user reports citing impersonation under Twitter’s own Rules, that led to the suspension of the accounts. Platform manipulation through en masse reporting of selected accounts and tweets to stifle dissenting opinions has emerged as a new threat to expression. But when it happens at home, the people who outrage against brigades in India, look the other way and even celebrate and justify the same acts here.
Locally, this was witnessed in February 2020, following the arrest of PTM’s Manzoor Pashteen in Pakistan. Accounts supportive of or belonging to those affiliated with the PTM found themselves suspended over ‘privacy’ violations. There emerged a visible pattern: accounts of those affiliated with the PTM, AWP, Women’s Democratic Front and journalists – all those who were using social media to raise the issue of Pashteen’s arrest and the arrest of protestors in Islamabad – became targets. Tweets dating back years were dug up and reported, mostly pertaining to some social or political issue. There also surfaced Twitter users claiming credit for suspending the accounts, warning them not to violate the Rules. Reversing such suspensions involved either deleting the reported tweet or filing an appeal and waiting for a decision. In some cases there were reversals and accounts were restored. However, there were suspensions even after reversals, when yet another tweet was reported. This, in addition to routine requests by the government – through PTA – to restrict content on one pretext or the other, as reflected in platform reports. Or emails by platforms such as Twitter, informing users “official correspondence” was received that their tweet was violation of “local law.”
What is said online is not completely disconnected from what transpires offline. Allegations of blasphemy have led to murders and violence in the past. After concerted hashtag campaigns against the Aurat Marches, organisers and participants in Islamabad were attacked. All legal and extra-legal tools available are being employed against dissidents. In some cases the chilling effect is visible. But the clampdown is also generating pushback and creating pockets of resistance. Which way this settles and for how long, remains to be seen.