"Let the people have information and let them judge the government.”

(Bit of a short one today, owing to a hectic week, so here’s another update on everyone’s* favourite Social Media Rules.

*absolutely no one’s)

Pakistan’s Dawn newspaper reported this past Friday (December 4th) on the Pakistan Telecommunication Authority getting into trouble (and deservedly so) with Chief Justice Athar Minallah, of Pakistan’s Islamabad High Court, over what he regarded as the “unconstitutional” framing of the “Removal and Blocking of Online Content Rules” as per Section 37 of the Prevention of Electronic Crimes Act. The comments were made by Chief Justice Minallah in the course of a petition being heard against the October 2020 banning of TikTok in Pakistan (overturned ten days later). Minallah argued that the Rules “are prima facie not in consonance with Articles 19 and 19A of the Constitution.”

Minallah also remarked that:

Criticism is very important for democracy. Let the people have information and let them judge the government. PTA is discouraging accountability. PTA should encourage accountability by facilitating access to information. When even the courts and judges are not immune from constructive criticism, how can government be shielded from criticism?

The IHC Chief Justice was also aided by the vice chairman of the Pakistan Bar Council and amicus curiae in the case, Abid Saqi, who was of the opinion that “access to information is a sine qua non for meaningfully exercising the other democratic rights, like elections of a democratic government, voting, etc.”

The Islamabad High Court was not happy that the PTA had not bothered sharing drafts of the rules with “relevant stakeholders, especially the PBC”. The Court not only stressed that “meaningful consultation” was important, but that this meant actually sharing drafts of the rules, rather than just sending out generic cold call letters of invitation.

An absence of any “meaningful consultation” also echoes an open letter released by the tech-industry Asia Internet Coalition on November 20th claiming that, contrary to panicked claims by the Government of Pakistan that they would listen, “(t)he consultation that was announced in February never occurred.”

According to Dawn, the PTA then had the bright idea to argue that they were justified in putting out the Rules by “pointing out that in India such restrictions on freedom of speech and information were also allowed”, at which point the the Court “advised the regulator not to follow those counties where fundamental rights and freedom were being restricted.” Ouch.

(Yes, that was indeed one of Pakistan’s most powerful government bodies essentially going “yeah, but they’re doing it, so why can’t I, boo!” like an eight year old*, and being given a “if India jumped off a bridge, would you do it?” telling off. )

The Court also blasted the PTA and the Government of Pakistan for allowing Section 4(1)(ii) of the Rules - which effectively outlawed government criticism - to be included, (and then subsequently amended with a “corrected version”, since uploaded to the Pakistani Ministry of Information of Technology and Telecommunications website), without any prior consultation or news.

According to Media Matters for Democracy Pakistan’s Digital Rights Monitor, when the PTA provided a copy of the “corrected version to the Court, “the Chief Justice demanded to know how a rule, that violated the Constitution and basic fundamental rights to such an extent, was allowed to be framed in the first place.”

(an aside: this would not be the first time that a part of the Pakistani government passed on a draft - which led to a strong criticism from another part of the state apparatus - of something linked to the Prevention of Electronic Crimes Act without prior consultation or review, albeit under a different administration.)

The hearing is adjourned until the 18th of December, which should give the PTA ample time to muster up something remotely substantial.

The PTA is a censorious beast with an inordinate amount of power that single-handedly what is immoral and what is not, in tandem with its equally Comstockian sibling, PEMRA, and is exceedingly dishonest when it claims that it has sought “meaningful consultation” (as any digital rights organisation in Pakistan can tell you) at any point. The PTA getting taken down a notch in any way does fill me with a tiny bit of glee.

(All right. A lot.)

It is not over yet, however, and we need to keep putting on the pressure in order to make sure that an already draconian piece of legislation, the Prevention of Electronic Crimes Act, is not made worse, and Pakistan ends up with its own Great Firewall.

(*Apologies to eight year olds.)