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n February 17, X (Twitter) users started facing difficulty in accessing their feed or in posting/ reposting fresh tweets. This appeared to have happened after a press conference by the Rawalpindi division commissioner related to alleged rigging of the 2024 general elections. The ban on the social media platform has remained in place despite a direction by Sindh High Court to the federal government to withdraw the letter through which it directed the Pakistan Telecommunication Authority to block X in Pakistan. X is currently available in Pakistan via VPN (virtual private network) only. Every day, the blockade is removed for a few minutes to avoid the charge of a continuous ban.
This is not the first time a social media application in Pakistan has faced blocking/ banning. Since 2006, several applications or parts thereof have remained inaccessible in the country. YouTube Facebook, TikTok, PUBG, Twitter and parts of Wikipedia and Google have also faced such bans in the past. Earlier, it was the Inter-Ministerial Committee for the Evaluation of Websites (IMCEW), which the government of Gen Pervez Musharraf formed in 2006, to direct the PTA to block “blasphemous, anti-state, anti-religion and sexually explicit content” online. However, in December 2014, Islamabad High Court restrained the committee from blocking websites.
The Prevention of Electronic Crimes Act was enacted during the Pakistan Muslim League-Nawaz government in 2016, apparently to prevent “electronic media crimes” in the country. However, the law has often been used to curb free expression online and to block access to information and knowledge online. This is evident from the fact that the PTA has blocked more than 1.25 million URLs since 2016. Other than 988,659 URLs, which allegedly had indecent and immoral content, most of the blocked pages/ URLs have been judged as being “against the glory of Islam,” “against security and defence of the country,” “hate speech,” defamatory or contemptuous. The blocking has included inaccessibility of the Awami Workers Party’s website before the general elections in July 2018, and the Pakistan Tehreek-i-Insaf’s official website before the general election in 2024.
The PTA claims to have the ‘mandate’ to block such URLs and applications under Section 37(1) of the PECA 2016. The above mentioned letter of the Ministry of Interior, requiring the PTA to block X “immediately till further orders,” also refers to the Removal and Blocking of Unlawful Online Contents (Procedure, Oversight, and Safeguards) Rules, 2021. These rules were formulated under Section 37(2) of the PECA 2016 and have been challenged in the Islamabad High Court. The matter is still pending before the court.
At the moment, two high courts are simultaneously dealing with the issue of blockade of X in Pakistan. The Sindh High Court has “directed the Interior Ministry to either justify the shutdown of social media platform X or rescind its February 17 letter directing the telecom regulator to ban the site.” As per official/ governmental claim, ban on X in Pakistan is “in the interest of upholding national security, maintaining public order and preserving the integrity of our nation.” The foreign minister recently tried to justify the ban on X “in the best interest of Pakistan.”
This is in fact an issue of the right to freedom of expression and the right to information. Article 19 of the constitution guarantees that “every citizen shall have the right to freedom of speech and expression and there shall be freedom of the press.” However, this freedom is “subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, [commission of] or incitement to an offence.” Similarly, Article 19A states that “every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law.” These two articles are the cornerstones of the chapter on fundamental rights.
Who will decide whether a speech is in violation of “reasonable restrictions imposed by law …”? Does an administrative/ executive body or a ministry have the prerogative to curb free speech and block access to information?
According to the constitution, enforcement of fundamental rights is the sole authority of the constitutional courts. No executive or administrative authority like the PTA or the Ministry of Interior can exercise this power of the constitutional courts, even if it is mentioned in some law. Article 175(3) of the constitution has clearly stated “[t]he Judiciary shall be separated progressively from the Executive ...” The Supreme Court of Pakistan, while interpreting this constitutional provision, [Government of Balochistan versus Azizullah Memon (PLD 1993 Supreme Court 341)] declared that “handing over of adjudication of rights and trial of offence to the executive officers [or administrative bodies] as one of the modes for blocking the road of free access to justice.”
The court further stated that “[s]eparation of judiciary [from executive] is the cornerstone of independence of judiciary and unless the judiciary is independent, the fundamental right of access of justice cannot be guaranteed.” The court highlighted that the “administration of justice cannot be subject to or controlled by the executive authorities.” Moreover, the court mentioned that “imposing executive officers [or authorising administrative bodies] to carry out judicial work “negates the very concept of justice and violates fundamental rights.” Therefore, it is clear that no executive body, authority or committee, whether it is statutory or non-statutory, can have powers to adjudicate/ decide the rights of the people.
The PTA is a licensing authority, established under the Pakistan Telecommunication (Re-organisation) Act (the PTA Act) of 1996. Such authorities are envisaged in Article 18 (freedom of trade, business or profession) of the constitution as a “licensing system and in the interest of free competition” in any trade or business. Primarily, the PTA is responsible for ensuring efficient and economical service to consumers in the telecom and internet sector. It should have nothing to do with the content on the internet. Nevertheless, Section 37 of the PECA gives a questionable and controversial power to the PTA to “remove or block or issue direction for removal or blocking of access to an information through an information system if it considers it necessary …”
Interestingly, the PTA did not block X in Pakistan on its own. Reportedly, it was done on the “direction of the Ministry of Interior.” This makes the matter more problematic as a ministry cannot direct the PTA to do so. According to the PTA Act (Section 8), the federal government, or federal cabinet or any committee of the cabinet “may issue directives” to the PTA. According to the famous Mustafa Impax case judgment, the federal government means the entire federal cabinet and not a single ministry. Therefore, the direction of the Ministry of Interior has no legal value. The ban is illegal and unconstitutional.
The writer is an Islamabad-based lawyer and heads the Institute for Research, Advocacy and Development. His X handle: @aftabalam77
The legality of a ban
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1
28.04.2024
n February 17, X (Twitter) users started facing difficulty in accessing their feed or in posting/ reposting fresh tweets. This appeared to have happened after a press conference by the Rawalpindi division commissioner related to alleged rigging of the 2024 general elections. The ban on the social media platform has remained in place despite a direction by Sindh High Court to the federal government to withdraw the letter through which it directed the Pakistan Telecommunication Authority to block X in Pakistan. X is currently available in Pakistan via VPN (virtual private network) only. Every day, the blockade is removed for a few minutes to avoid the charge of a continuous ban.
This is not the first time a social media application in Pakistan has faced blocking/ banning. Since 2006, several applications or parts thereof have remained inaccessible in the country. YouTube Facebook, TikTok, PUBG, Twitter and parts of Wikipedia and Google have also faced such bans in the past. Earlier, it was the Inter-Ministerial Committee for the Evaluation of Websites (IMCEW), which the government of Gen Pervez Musharraf formed in 2006, to direct the PTA to block “blasphemous, anti-state, anti-religion and sexually explicit content” online. However, in December 2014, Islamabad High Court restrained the committee from blocking websites.
The Prevention of Electronic Crimes Act was enacted during the Pakistan Muslim League-Nawaz government in 2016, apparently to prevent “electronic media crimes” in the country. However, the law has often been used to curb free expression online and to block access to information and knowledge online. This is evident from the fact that the PTA has blocked more than 1.25 million URLs since 2016. Other than 988,659 URLs, which allegedly had indecent and immoral content, most of the blocked pages/ URLs have been judged as being........
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