The second hearing of Bolo Bhi’s case challenging the legality of the IMCEW was held before the Islamabad High Court on Thursday, January 15, 2015. Counsel for the Ministry of Information Technology and Telecommunications (MOITT) urged the court to vacate the stay order until the resolution of the case. However the honourable judge was of the view that the federation’s counsel had not responded to the court’s question: under what law are the committee’s functions being carried out. The court had also asked for minutes of meetings and a list of blocked websites, which were not submitted. The honourable judge inquired what the federation’s hesitation in submitting the list was.
To this, MOITT’s counsel responded there was no hesitation per se, however the information was extremely ‘sensitive’ and posed a serious threat to the ‘integrity of the state’ to which the honourable judge asked who exactly interpreted that and decided what integrity of the state was? MOITT’s counsel then went back to drawing attention towards the 2006 notification that constituted the committee – an executive order by the Prime Minister (PM) – maintaining that the committee’s functions were carried out under the Rules of Business.
To this, Justice Minallah stated the matter was one of fundamental rights and everything had to be done in accordance with the law. He asked which law authorized the prime minister to constitute such a committee? Justice Minallah once again questioned the counsel, asking which law empowered the committee to censor.
After citing Rules of Business, the 2006 notification and PM’s orders – neither of which are laws – the counsel stated the IMCEW was a ‘recommendatory body’ and that it was actually PTA that was authorized to block websites under the PTA Act. To this Justice Minallah responded, even for the committee to make recommendations, it had to have powers to do so under law. He further maintained that the counsel had not been able to satisfy the court under what law the committee functioned and exercised power; therefore first the earlier order must be complied with before the technical objections raised in the CM could be addressed.
To this MOITT’s counsel maintained there were similar adjudications before other courts and proceeded to read out the 2012 Supreme Court order the MOITT has routinely cited. Justice Minallah asked whether the Supreme Court had explicitly restrained the High Court from issuing directions. The honourable judge responded those were both separate proceedings and the SC has not restrained the court. Since YouTube was brought up by MOITT’s counsel, Justice Minallah added: ‘We live in the 21st century – is it possible to block? Let’s be practical. YouTube was blocked but is still accessible. Let’s live in the 21st century.’
The counsel went on to quote PLD SC 1 2014 saying the SC had laid out separation of powers between the executive and the judiciary, except in a limited way. To this the honourable judge maintained, ‘It is not a policy matter under discussion but one of fundamental rights,’ after which he drew the counsel’s attention towards Article 19 of the constitution, reading it out loud and again asking, under what law the IMCEW had been empowered. ‘The executive is answerable,’ contended Justice Minallah. ‘Has parliament made a law?’ he asked. He further implored why the Ministry showed no trust in the court and first placed the materials on record, to which the counsel responded since the stay order, the committee had not made any decisions or blocked any websites, going back to saying it was PTA that actually blocked websites.
The court directed Chairman PTA to appear on the next date of hearing and submit why he was being dictated to by the IMCEW when the PTA is an independent body. The hearing has been scheduled for January 20, 2015.
– MOITT’s counsel tried to vacate the stay, however honourable judge directed federation to first comply with previous order and submit list of blocked websites and meeting minutes for the last three years
– Honourable judge repeatedly asked under which law the IMCEW derived authority and exercised its functions
– After repeatedly failing to answer the court, MOITT’s counsel contended the IMCEW was a ‘recommendatory body’ and that it was the PTA that blocked websites, authorized under the PTA Act
– The court summoned Chairman PTA to appear and answer why he was being dictated to by the IMCEW when the PTA is an independent body
– Read court order here
See our resources:
The IMCEW Challenge – Timeline with Complete Updates
About The Author
Farieha Aziz is a Karachi-based, APNS-awardwinning journalist. She is a co-founder and Director at Bolo Bhi. She has a masters in English literature. She worked with Newsline from July 2007-January 2012 and taught literature to grades 9-12. She served as an amicus curiae in a case filed in the Lahore High Court in 2013, challenging the ban on YouTube, and is currently a petitioner on behalf of Bolo Bhi in a case filed in the Islamabad High Court challenging government's censorship on the Internet and the powers of the regulator. She can be found on Twitter: @FariehaAziz and reached via email: firstname.lastname@example.org