Desperate Steps
According to the visionaries at the Ministry of Information Technology and Telecom (MOITT), an ideal telecom and IT policy space in Pakistan would have Section 34 from the Prevention of Electronic Crimes Bill (PECB) in existence as law, with all other laws and policies in the IT and telecom space reflecting it. This is exactly what Section 9 of the Telecom Policy 2015 seems to indicate.
When MOITT hit a wall with the IMCEW’s (Inter-Ministerial Committee for the Evaluation of Websites) legality up for challenge, it dawned upon them that the Pakistan Telecommunications Authority (PTA) should be pushed forward as the body to manage content online. Perhaps they thought, if the IMCEW was not legal enough since it wasn’t a legislated entity, surely PTA would cut it since it was a statutory body.
But then they were probed with where in the PTA Act was PTA deriving content management powers. That’s when it seemed almost ingenious to insert these powers into the proposed draft of the PECB.
So in March 2015, MOITT operatives diligently sifted through the PTA Act to pick out language from there and add it to the PECB. A look at the April 2015 version of the bill reflects this. In the definitions’ section, ‘authority’ stands for PTA. The definition of ‘intelligence’ in PECB — which is a stand in for information and content — is a copy-paste from the PTA Act.
All content-related sections of PECB contain references to both ‘intelligence’ and ‘authority’. After a hue and cry over this addition, in the amended version of the bill approved by the National Assembly Standing Committee on IT in September 2015, the word ‘intelligence’ was replaced with information. Yet the definition remained the same, and a reference to the PTA Act was added to it, to make sure it still served the same purpose.
Little did the government anticipate the opposition to the bill that came from outside and inside the legislature — and in both houses. The Senate drew a line on PECB: the bill would not be allowed to pass in its current form. Lacking a majority in the upper house naturally posed a dilemma to the government’s ambitions. But persist in gaining powers they had to, and so the Telecom Policy 2015 offered yet another opportunity.
Launched in January 2016, Section 9.8.2 of the Policy reads: “PTA is required to manage content over the internet through integrated licences or ISPs as per their licensing conditions under the act.”
But where to find a justification in law, so they came up with this: “This framework will enable PTA to monitor and manage content including any blasphemous and pornographic material in conflict with the principles of Islamic way of life as reflected in the Objectives Resolution and Article 31…The framework would nevertheless protect the right to freedom of speech and expression under Article 19 of the Constitution subject to any reasonable restrictions imposed by the Constitution and the law and cover public networks.”
Any ‘framework’ would have to come through law, introduced by the legislature, drafted within the parameters prescribed by the Constitution to protect and not strip away fundamental rights. The executive, through a telecom policy by writing in an SOP as a ‘framework’ is not the equivalent of that.
Both Article 31 and the Objectives Resolution state Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teaching and requirements of Islam. The word here is ‘enabled’. There are ways of enabling citizens to shield themselves from unwanted and unwarranted material online without the state playing nanny and infringing on rights.
Moreover, while recognising the rights of minorities and fundamental rights of all citizens under the Constitution, the Objectives Resolution requires the state to “exercise its powers and authority through the chosen representatives of the people”. That again would be the legislature.
Meanwhile, 9.8.4 states: “PTA under its inherent mandate on regulation of ‘access to content’…will perform the assigned role…” What ‘inherent mandate’? The one that’s under scrutiny before court? Or the mandate being created through PECB? Or is this a reference to 9.8.2 in the Telecom Policy, which happens to be a policy document issued by the executive and not a law passed by parliament?
Then 9.10.1 proposes that “in order to realise the objectives of this policy,” changes be made to acts, ordinances and rules. These include, but are not limited to, the PTA and PEMRA Acts, as well as the Telecommunication Rules.
Powers acquired in the name of protecting the people are often used to serve vested personal and political interests. ‘In the interest of the people’ may be the most convincing argument to make, but it’s not the most truthful one.
This article was previously published in DAWN and it is being republished here with permission.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which she might be associated.
