March 5, 2021

IHC petitioned to declare Section 37(1) of PECA 2016 unconstitutional, social media rules ultra vires

Islamabad, 17 December 2020: A petition filed in Islamabad High Court has asked the court to declare that “Section 37(1) of PECA 2016 is unconstitutional for being vague, imprecise, overboard, excessively delegated and non-delegation”. The petitioners also ask the court to declare a number of Rules in the Removal and Blocking of Unlawful Content (Procedure, Oversight and Safeguards), Rules 2020 as being ultra vires.

The petition has been filed by renown journalist Amber Rahim Shamsi and TikToker Ahfaq Jutt and also asks the court to direct the government and PTA to “initiate a transparent and credible consultative process
with all stakeholders to either amend the Impugned Rules or frame the rules afresh in accordance with the aforementioned requirements of law”

The petition talks at length about the possible adverse impact of the rules on freedom of expression and says that the rules “violate constitutionally secured freedom of speech and expression, right to access to information, right to privacy, and freedom of trade, business, and profession, and right to property, of all Pakistani citizens”.

A 19th Century Approach

“The social media rules are a very 19th century approach to a 21st century problem. The idea should have been ideally to protect citizens, protect them from online harm. Instead what we have seen is that journalists, dissidents and people who have a different view, different political view from the state have regularly been targeted through PECA”, says Amber Rahim Shamsi, senior journalist and one of the petitioners, “My fear is that these new social media rules will accelerate that process. they will make it much harder for journalists and political commentators to use social media to express themselves, to differ from state narratives”.

Shamsi says that “If content is going to be concentrated in the hands of a state that is already guilty of suppressing the freedom of expression, then these new social rules that require companies to hand over private material to the state, could endanger what is already a fragile space. Social media is the only space where there is a little more breathing space available and I am afraid that these new social media rules will strangulate it further”.

Lack of transparent and credible consultative process

The petition states that that according to the law “every executive authority exercising rule making powers, which have substantial bearing on fundamental rights, are bound to publish a draft of the rules for “information of persons likely to be affected” and undertake transparent and meaningful consultation” and holds that the lack of consultative

The petition also highlights the limited scope of rule making powers under PECA and holds that the social media rules go beyond that power.

This is the second petition to be filed in Islamabad High Court on he rules, the first being filed by Pakistan Federal Union of Journalists.

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