Controversial Powers – Published on March 22, 2020

By Muhammad Aftab Alam 

The Supreme Court of Pakistan in ‘Government of Balochistan versus Azizullah Memon (PLD 1993 Supreme Court 341)’ brought a paradigm shift in executive and judicial functions in Pakistan. Though Article 175 (3) of the 1973 constitution required that “the judiciary shall be separated progressively from the executive within fourteen years from the commencement,” this separation could not practically happen despite expiry of the fourteen years in 1978. Hence, this three-member bench’s judgement reiterated the need for separation of the judiciary from the executive and laid down several fundamental principles and underpinnings thereof.

The judgement stated that “[s]eparation of judiciary [from executive] is the cornerstone of independence of judiciary and unless judiciary is independent, the fundamental right of access of justice cannot be guaranteed.” The judgment stressed, “the administration of justice cannot be subject to or controlled by the executive authorities.” The court termed the handing over of adjudication of rights and trial of offence to the executive officers [or administrative bodies] as “one of modes for blocking the road of free access to justice.” It mentioned that “the constitution provides for separation of judiciary from the executive,” therefore “imposing executive officers [or authorizing administrative bodies] to carry out judicial work “negates the very concept of justice and violates fundamental rights.”

The court, while highlighting the importance of access to justice, declared that Article 9 (security of person) and Article 25 (equality of citizens) do not permit even “the legislature to frame such law which may bar right of access to the court of law and justice.” The court emphasized that “the right of access to justice does not only mean that the law may provide remedies for the violation of rights, but it also means that every citizen should have equal opportunity and right to approach the court without any discrimination.”

In simple terms, no executive body, authority or committee, whether it is statutory or non-statutory, can have powers to adjudicate / decide the rights of the people and conduct trials of offences. It is the sole prerogative of the judiciary to construe the frontiers of fundamental rights, including Article 19 (freedom of speech) and Article 19A (right to information), and adjudicate infringements thereof.

However, if we examine Section 37 of the Prevention of Electronic Crimes Act (PECA), 2016 and the Citizens Protection (Against Online Harm) Rules, 2020, (the Rules) in light of the principles set by the above judgment, it appears that, both Section 37 and the rules are against the very concept of justice and therefore violate fundamental rights. Section 37 of PECA authorizes the PTA to ‘adjudicate’ the right of freedom of speech and right to information. The PTA can ‘decide’ whether any ‘information or speech’ is against ‘the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, public order, decency or morality, or in relation to contempt of court or commission of or incitement to an offence.’ Keep in mind that it is the sole prerogative of the judiciary to determine whether information or speech is ‘legal’. This goes without saying that the courts exercise this power, given under Article 19 of the constitution, in light of explicit ‘reasonable restrictions imposed by law’ in the interest of certain matters.

The PTA is one of the regulatory bodies established under the provisions of Article 18 (Freedom of trade, business or profession) as a ‘licensing system and in the interest of free competition’ in any trade or business. The constitution of Pakistan, however, does not envisage any ‘adjudicating’ power for these regulatory bodies. Moreover, authorizing an administrative body with unsolicited powers, which the judiciary is supposed to exercise with great caution and in the light of ‘reasonable restriction imposed by law’, “to remove of block or issue directions for removal or blocking of access to an information” is a clear mode “for blocking the road of free access to justice” as per the above Supreme Court judgement.

Then comes the case of the Citizens Protection (Against Online Harm) Rules, 2020. The rules provide two structures: 1) the office of the National Coordinator; and 2) complaint mechanism for blocking or removal of such ‘unlawful’ content online. As per the rules, the concerned minister will have discretionary power to designate anyone as ‘national coordinator’ who will, among other functions, arbitrarily issue binding instructions to departments, authorities and agencies to block unlawful online content and acquire data or information from social media companies. Another encroachment upon the jurisdiction of the judiciary!

Ironically, this controversial power to remove or block content was also given to the PTA under Section 37 of PECA, 2016. However, under these rules, there is a different system to deal with such actions taken by the PTA under Section 37 of PECA. A person aggrieved by the decision of the PTA can file a review petition before the PTA and, if not satisfied with the outcome of review petition, can file an appeal to the high court.

On the contrary, there is no judicial recourse for an aggrieved person against the decision of the national coordinator or the committee, to be constituted by the federal government. While giving ‘adjudicating’ powers to both the PTA and the national coordinator is clear negation of the concept of justice and violation of fundamental rights, baring the aggrieved party from approaching to judiciary is against the fundamental principle of equal opportunity and right to approach the court without any discrimination.

It is, therefore, clear that neither the PTA’s powers to block and remove ‘information’ nor of the national coordinator’s authority to issue binding instructions to block online content and acquire data or information from social media companies are in accordance with the principles set by the Supreme Court in this historic judgment. Moreover, the rules are way beyond the limits of its parent laws – the PTA Act, 1996 and PECA, 2016.

For example, the rules attempt to define new crimes, which are neither defined by PTA Act nor by PECA. Moreover, while the maximum fine under PECA is ten million rupees, the national coordinator has the authority to impose the fine up to five hundred million rupees. All this makes a suitable case for withdrawal of Section 37 of PECA and the Citizens Protection (Against Online Harm) Rules, 2020.

The author is Islamabad based lawyer and specializes in Internet and communication law and regulations. He can be accessed via twitter on @aftabalam_77