Raising important questions on the importance of freedom of speech, Supreme Court judge Justice Qazi Faez Isa asked whether criminalisation of defamation would lead to the silencing of victims of sexual assault and other crimes. He questioned whether Section 20 of the Prevention of Electronic Crimes Ordinance (PECA) was contradictory to Article 19 of the Constitution.
A report by The Express Tribune detailed the remarks made by a two-judge bench, headed by Justice Qazi Faez Isa, that had asked whether invoking PECA against victims of sexual assault and other crimes was tantamount to promoting injustice and silencing the voices of victims.
The judge questioned whether a defamation case could be filed under criminal law, asking “Why is the freedom to express being turned into a criminal act?”
He further asked whether there will be a criminal case for calling someone a thief, adding that nowadays ‘thief, thief’ was heard everywhere on TV, and aspersions were being cast even on judges, but that didn’t mean there should be criminal proceedings.
In the order given by the judge, it was asked whether the prohibition of defamation results in a violation of the fundamental right of freedom of speech.
“Whether an anomalous situation is created if both a civil case, claiming damages on account of defamation, and a criminal prosecution for defamation proceed, and/or do so simultaneously, and whether this would undermine the fundamental right of a fair trial and due process enshrined in Article 10A of the Constitution”, the order added.
He also noted that Section 20 – which is considered null and void by the Islamabad High Court, was considered legitimate by the Lahore High Court. “What would be the constitutional status of two [high court] rulings that contradict each other,” he questioned.
Section 20 was declared valid on March 9 by the Lahore High Court, which stated that the section in question did not contradict Article 19 of the Constitution. However, on April 8, the Islamabad High Court declared it unconstitutional and demanded that it be discarded.
The remarks were made during the hearing of a petition filed by Meesha Shafi who sought the dismissal of criminal charges filed against her by Ali Zafar, over the issue of defamation. The Justice dismissed the criminal charges, but said that the civil proceedings would continue.
Seeking further clarity, the court issued notice to respondents, including the Attorney General and the advocate general of Punjab.