Case Summary and Outcome

The Islamabad High Court, a constitutional court in Pakistan, held that the investigation initiated against journalist Rana Muhammed Arshad, by the Federal Investigating Agency (FIA) by means of an undated notice was an abuse of the procedure established by law, and that the journalist was in fact being “targeted as retaliation for his work.” The Court held that such action was violative of the fundamental right to freedom of speech and expression, free press and a citizen’s right to access information of public importance enshrined in Articles 19 and 19A of the Constitution of the Islamic Republic of Pakistan, 1973. The Court further held that when an investigative agency abuses its coercive powers, it profoundly affects the freedom of press and independence of a journalist, and gives rise to a perception of retaliation to professional functions. With these observations, the Court directed the Federal Investigating Agency to frame special guidelines regarding proceedings against persons engaged in the profession of journalism.  

Facts

Rana Muhammad Arshad is a journalist who was summoned by the Federal Investigating Agency (FIA) through an undated and vaguely worded notice issued under the Prevention of Electronic Crimes Act 2016 (PECA 2016). Under PECA 2016, FIA has been designated as an investigation agency that has the mandate to prosecute crimes committed using electronic means and other cybercrimes. The notice did not disclose the act for which the Petitioner was being summoned, although the Petitioner believes that the notice was in response to an allegedly objectionable tweet posted by the Petitioner. The Petitioner stated that in addition to the notice, FIA officials raided his residence with the intention of arresting him because of his critical journalistic reporting. 

Aggrieved by the FIA’s conduct, Rana Muhammad Arshad invoked Islamabad High Court’s  jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, to challenge the undated notice and the actions of the FIA officials pursuant thereto. The Petitioner argued that the FIA had violated its statutory obligation by issuing an undated notice without reasons, and was an “attempt to deter him from performing his functions as a journalist without fear or favour” [para. 6]. 

The matter was first heard by the High Court on October 08, 2020, and on this date, the Court restrained the FIA from taking any adverse action against the Petitioner. Thereafter, the matter was finally decided on November 03, 2020. 

Decision Overview

Chief Justice Minallah delivered the judgment for the Court.

The main issue before the Court in this petition was the legality of the notice issued by the FIA to the Petitioner, and the alleged actions of the FIA officials pursuant to the notice issued.

The Petitioner claimed that the impugned notice had caused him unnecessary harassment. It was further argued that the disclosure of the purpose of summoning in the notice was a statutory obligation imposed on the FIA and its officials, and this obligation had been violated since the notice did not disclose any reasons for summoning the journalist. The Petitioner asserted that the FIA had “recklessly exercised their powers in an attempt to deter him from performing his functions as a journalist without fear or favour” [para. 6].

The Investigating Officer of the FIA, who had served the notice and allegedly raided the house of the Petitioner appeared before the Court and filed a written report. The Investigating Officer informed the Court that he had visited the Petitioner’s residence only to verify his address, and admitted that during the course of the investigations, no incriminating evidence was found against the Petitioner. After having perused the Investigating Officer’s report and having questioned him, the Court found that neither was there a plausible explanation for sending an undated notice and not disclosing the purpose for summoning, nor was there any evidence to suggest that the Petitioner had committed an offence under PECA 2016, so as to warrant the FIA “to proceed with such haste and recklessness and which has obviously caused harassment and intimidation, not only to the Petitioner but his family members as well” [para. 2].

The Court then discussed the importance of the Petitioner’s occupation as a journalist. The Court stated that freedom of press will be elusive “if journalists lose their independence and function under fear of being exposed to harm or retaliation because of their reporting” [para. 7]. Independent journalistic reporting may be perceived by the Government as critical, however, any apprehension or fear created in the minds of journalists disseminating information of public importance, not only undermines the independence of the occupation, but is also contrary to the constitutionally guaranteed right to freedom of speech and expression, which is “the most cherished human right and fortifies the other constitutionally guaranteed rights” [para. 6]. The Court held that a free press acts as a watchdog and the information disseminated by it cannot be compromised. 

The Court then went on to discuss Articles 19 and 19A of the Constitution of Pakistan, which guarantees to every citizen the right to freedom of speech and expression, including the freedom of press and the right of citizens to have access to information of public importance. The Court went a step further to state that violation of the constitutionally guaranteed rights under Article 19 and 19A would also affect other constitutionally guaranteed rights. With reference to the case of Syed Mansoor Ahsan v. Ardeshir Cowasjee [1998] PLD 1998 SC 823, the Court reiterated that  the right to free speech and expression is one of the pillars of individual liberty and thus it is the duty of the Court to uphold its sanctity and constitutional mandate. Therefore even the perception that a journalists’ reporting will lead to backlash by state agents, is violative of Articles 19 and 19A of the Constitution, nothing can violate Articles 19 and 19A more than the fear created in the minds of journalists that they will be targeted for their reporting. The Court thereby delineated that it is the constitutional duty of the State and the Court to protect the independence and the occupation of journalists in accordance with Article 19 and 19A. It is also the State’s responsibility to demonstrate their commitment to protecting journalists and the freedom of press.

The Court acknowledged that the freedom of speech and press has a direct nexus with ensuring economic stability and growth, and free press is “a panacea to evils of poverty, corruption and inequality” [para. 8]. Inhibiting or limiting free speech and undermining the freedom of the press are seen as hallmarks of a regressive state.  

The Court further stressed that a free press empowers the weak and marginalized segments of society, and gives an impetus to accountability on the basis of information disseminated through independent and responsible reporting. The Court highlighted that there had been a surge in the filing of petitions claiming that public functionaries have abused the provisions under PECA 2016. Either the provisions were being misinterpreted by these public functionaries or being used in a reckless unprofessional manner to suppress critical journalistic pursuits. The Court therefore held that it is the  duty of the State to dispel such perceptions of abuse of coercive powers to threaten free press. In the present case, the Court came to the conclusion that the undated notice served to the Petitioner and the FIA official’s actions thereafter amounted to an abuse of exercising powers under PECA 2016, and Rana Mohammed Arshad was in fact being targeted for his work as a journalist. With such observations, the Court directed the Director General of the FIA to formulate special guidelines for investigating persons engaged in journalism. The Court expressed its confidence in the Federal Government to take prompt and effective action to prevent the abuse of coercive powers under PECA 2016 in general and against independent and responsible journalists in particular. The Court proposed the establishment of an effective forum for addressing complaints of journalists, relating to violations of the freedom of press. Moreover, the Court suggested that the Federal Government conduct meaningful consultations with key stakeholders, including associations, councils and unions of journalists to dismiss apprehensions of intimidation and address concerns about abuse of coercive powers by public functionaries, particularly in relation to PECA 2016.