Content Regulation / Censorship, National Security
Bayar v. Turkey
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The Islamabad High Court in Pakistan ruled that the blocking of Awami Workers Party’s official website by the Pakistan Telecommunication Authority (PTA) was in violation of the principles of natural justice and the fundamental rights guaranteed under Article 10-A of the Pakistani constitution. The PTA had blocked the official website of the political party during the 2018 General Elections under Section 37 of the Prevention of Electronic Crimes Act, 2016 on national security grounds. The website was blocked by an order without notice or affording the Party any opportunity of hearing. The Court held this order to be a flagrant violation of fundamental right under Article 10-A as no “due process” was observed as mandated by the Article. The Court reasoned that the authorities did not follow “due process” in the present case because no rules were formulated to carry out the purposes of Section 37(2) of the Act. In this regard, the Court also directed the authorities to make rules. Further, the Court observed that principles of natural justice should be read in every statute. Conclusively, the Court held the manner of blocking the website to be arbitrary.
The case was brought before the Islamabad High Court by Awami Workers Party.
The petitioner, Awami Workers Party is a socialist political party registered with the Election Commission of Pakistan.
The respondents include the PTA and the Federal Government.
During the general elections in 2018, the official website of Awami Workers Party was blocked by the Pakistan Telecommunication Authority due to security concerns.
The Awami Workers Party filed a writ petition before the High Court under Article 199 of the Constitution of Pakistan, 1973 to unblock its official website and to direct the PTA to make necessary rules for regulation of its powers under Section 37(1) of the Prevention of Electronic Crimes Act, 2016. Further, the Party sought for appropriate directions for the Federal Government for regulating the powers of PTA and ensure protection of the fundamental rights of the citizens.
Chief Justice Ather Minallah delivered the judgement of the Islamabad High Court.
The central issue for determination before the Court was whether the manner in which the official website of Awami Workers Party had been blocked was in violation of the fundamental rights as guaranteed under the Constitution of Pakistan, 1973. [para. 2]
The official representing the PTA argued that the blocking of official website of the Awami Workers Party was valid under section 37 of the Prevention of Electronic Crimes Act, 2016 (the Act) which empowers the competent authority to block websites without notice or affording an opportunity of hearing to the person who could be adversely affected by such an order. [para. 2]
The Court noted that the PTA’s interpretation of the Act was in “flagrant violation of the fundamental rights guaranteed under the Constitution as well as the settled law enunciated by the superior courts.” Further, not giving notice or not affording an opportunity to be heard is against the principles of natural justice which are required to be read in every statute.
While examining the violation of fundamental rights and relying on Article 10-A of the Constitution, the Court observed that the “Pakistan Telecommunication Authority [was] definitely not empowered to pass an order or take action under Section 37 of the Act of 2016 in derogation of the mandatory requirements of due process.” [para. 2]
In the present case, the Court held that due process was not followed.
Further, the Court observed that PTA had a statutory duty to prescribe and notify the rules under Section 37(2) of the Act which it has not prescribed despite a lapse of considerable time since the Act was enforced and enacted on 19.08.2016.
The Court, thus, directed the PTA to fulfill its statutory obligations in the manner as provided under Section 37(2) of the Act. In order to fulfill its obligations the authority was given a time period of ninety days.
In conclusion, the Court reaffirmed that the manner of blocking of website of the petitioner was in violation of the principles of natural justice as well as fundamental rights as guaranteed under Article 10-A of the Constitution. [para. 3]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This judgment of Islamabad High Court expands freedom of expression as it held that the manner in which the official website of the political party was blocked was in violation of the principles of natural justice and the fundamental right guaranteed under Article 10-A of the Constitution. The judgment required that due process should be followed while blocking the website and for the same, rules as mandated under the Act must be formulated. Further, while giving such an order or a direction under the Act, the competent authority is mandated to observe the principles of natural justice which includes giving notice and affording the right to be heard to the affected party.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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