“Our democratic dispensation now rests on the courts to strike these draconian rules down, on the Parliament and especially the opposition parties to walk the talk of protecting democracy, and on the government to prove its sincerity to its digital dreams. Or should we stop pretending?”
If the internet offers an open space for citizens to freely express themselves, the newly notified internet rules seek to clampdown on those very freedoms in an autocratic manner. Whether one considers the process by which they were drafted, or the substantive matter of the tules, they flout democracy.
In a democracy, rules relating to the internet would at the very least be well-informed in terms of the functioning of technology; take input of the technology sector, human rights experts, the companies that these rules would impact, students, as well citizen groups; and follow a consultative process where multiple drafts were shared with stakeholders and discussed and revised before being notified.
What we saw instead was surprise news early on in the year that rules had been notified by the federal cabinet. No consultation was held or stakeholder input sought.
After national and international outcry by human rights groups, consortium of technology companies such as the Asia Internet Coalition (AIC), and multistakeholder forums such as the Global Network Initiative (GNI), the PM said he will “suspend” the rules and hold more consultations. Except legally, a cabinet notification can only be “taken back” — denotified — by the cabinet itself, and not the PM, as held in the Mustafa Impex case in the Supreme Court, as well as the rules of business.
However, the cabinet never denotified the previous set of rules, and has recently notified yet another set.
For the new set of rules, consultations were an eyewash as expected, as not only are the new ones any less draconian than the last, but also make several additions that raise several questions.
For one, in an attempt to include safeguards and protections, they give the powers of judge, jury, and executioner to the PTA where the authority, which is clearly not above pressure of the federal government, has the power to order social media companies to block or restrict content on the internet, decide what content is unlawful, and also review appeals against such a decision. The stipulation for appeal at high court comes after all of these steps. This goes against the separation of powers that the Constitution outlines and forms the basis of democratic governance.
“The important question is who is making these decisions? Is the PM sincere in his wishes for a Digital Pakistan?”
That is all the more problematic when one sees the exceptions to freedom of speech that the rules stipulate. They empower the PTA to not only interpret Articles of the Constitution but also sections of the Pakistan Penal Code (PPC) relating to the blasphemy laws for defining “glory of Islam”, “obscenity and decency”, and “public order” where powers under section 144 are cited as the yardstick for determining what online content can be deemed illegal.
Most problematic is the rule regarding “integrity, security and defence of Pakistan” whereby it goes on to not only give PTA the powers to interpret Article 260 of the Constitution with regards to defining these terms – which is a function of the higher judiciary – but also expands it to “also mean and include the dissemination of an information which intimidates or harms the reputation of federal or provincial government or any person holding public office” and “brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the federal or provincial government”, effectively covering any criticism of the government on the internet to be restricted or blocked on the orders of the PTA as it wishes.
Additionally, the rules also go against the parent legislation – PECA – by making intermediaries, i.e. internet companies and internet service providers liable for content regulation and data sharing, hence privatising censorship. Section 38 of PECA explicitly limits intermediary liability. No company is going to agree to implementing a government’s rules over its own detailed community standards, as obvious form the AIC statement that signaled that internet companies may exit Pakistan if these rules are to remain. Rules also expect the companies in face of these orders to open an office in Pakistan, establish local databases, and offer the FIA unrestricted access to user data.
The important question is who is making these decisions? Is the PM sincere in his wishes for a Digital Pakistan? Or is the vision to make it like China where the country is cut off from the rest of the world, capacity for which is lacking here exactly because of years of similar shortsighted policymaking mistakes, lack of state investment in encouraging a robust IT ecosystem, and ad-hoc policy of censorship and privacy violations that discourage potential investment and growth?
Our democratic dispensation now rests on the courts to strike these draconian rules down, on the parliament and especially the opposition parties to walk the talk of protecting democracy, and on the government to prove its sincerity to its digital dreams. Or should we stop pretending?