On Thursday, the Islamabad High Court (IHC) issued a directive to Pakistan Telecommunication Authority (PTA) to submit an answer regarding the recent ban on the popular Chinese app TikTok.
The court also called upon Pakistan Federal Union of Journalists (PFUJ) president Shehzada Zulfiqar, Pakistan Bar Council (PBC) vice-chairman Abid Saqi, journalist Mazhar Abbas and former information minister Javed Jabbar as Amici Curiae (lit. Friends of the Court) to assist with the matter. The appointed Amici Curiae will assist with the question as to whether the use of PTA’s power vested under the Act of 2016 violates the fundamental rights guaranteed under Articles 19 and 19-A of the Constitution, which reads:
Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, 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.
Article 19. Freedom of speech, etc.
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.
Article 19(A). Right to information
Petitioner Ishfaq Jatt, through his counsel Usama Khawar, submitted before the court that the petitioner is aggrieved on account of actions taken by the PTA which has led to the banning of internet-based application TikTok, an app that provides a platform to talented citizens to exercise the right of expression and to demonstrate creativity.
The plaintiff argued that the PTA actions were in violation of Section 37 of the Prevention of Electronic Crimes Act, 2016. Clause 1 of section 37 of the act empowers PTA to ban content on numerous grounds. However, section two of ibid also requires that any such banning or removal will be done through processes that safeguard the transparent process and effective oversight mechanism for exercise of powers. To argue this the counsel referred to the IHC directives vide order, dated Sept 12, 2019, in the Awami Worker Party (AWP) versus PTA case, which ruled that the authority and the federal government had failed to fulfil their respective statutory obligations under subsection (2) of Section 37 of the Act of 2016 and thus the powers conferred under sub-section (1) ibid were being abused.
Chief Justice Minallah had also ordered that “the PTA is definitely not empowered to pass an order or take action under Section 37 [of PECA] in derogation of the mandatory requirements of due process”.
The counsel stressed that fundamental rights enshrined in Articles 19 and 19-A of the Constitution guaranteed free speech and access to information, which can not be overruled without due cause by PTA. Furthermore, the petitioner was not against regulating the application but was aggrieved on account of the prohibition imposed by the PTA that is in violation of the provisions of the Prevention of Electronic Crimes Act, 2016.
He stated that TikTok app provides a source of income to many talented citizens, particularly belonging to marginalised classes and that the abuse of the platform by a few did not justify imposing a ban.
After hearing the arguments, Chief Justice Minallah directed the PTA to nominate a senior officer for court’s assistance and sought explanation “why proceedings may not be initiated for violating the directions given by this Court in the aforementioned judgements and why the order of banning TikTok app may not be suspended”.
Further hearing in the case was adjourned till Oct 23.
