The Silencing Act

“Women are harassed and so we must introduce a law to protect them,” went the PML-N narrative in favour of enacting the Prevention of Electronic Crimes Act (PECA), 2016. This line peddled was mainly by the then minister for state for information technology and telecom, Anusha Rahman, to shut down critique levelled at the draconian provisions of the law, criminalising various forms of speech in an overbroad manner.

Criticism of the law was deflected by making wild accusations and false imputations against critics, what actually qualifies as defamatory statements: foreign-funded agents working against the interests of the country and religion. As recorded in the House Debates on August 11, 2016, the day PECA 2016 was passed into law, dismissing all concerns raised regarding the violation of rights, Rahman remarked women were committing suicide as a result of online harassment, ‘what about them?’

In 2017, news broke of Sindh University student, Naila Rind’s death. According to reports, she “committed suicide due to exploitation and blackmailing by a man who had befriended her on WhatsApp.” She was found hanging by the neck in her hostel room. Just last month in September 2020, a woman who had filed a complaint with the Federal Investigation Agency (FIA) committed suicide. Reportedly, she had contacted the investigation officer just hours before deciding to end her life. A law purportedly enacted to shield women from harassment and provide them with legal recourse has done no such thing.

PECA In Practice

While much haste was made to pass PECA, once enacted it took over a month to designate FIA as the investigation agency. It was not until March 2017 that courts to try PECA cases were notified. Meanwhile, complainants and litigants were left hanging. Many women who attempt to file a complaint through the online web form say it does not work or they do not hear back. Several women who visit FIA offices to file in-person complaints talk about the misconduct of investigation officers. Among the complaints that do make it to court, some complainants are advised – and at other times coerced – to withdraw and settle. Compromises are facilitated even in non-compoundable cases, which the law does not allow. Women who wish to see their cases through to the end are punished.

In a case registered in 2016, FIA “lost” the evidence file. It was only after the complainant petitioned the Sindh High Court against the FIA that the file was “recovered.” Four years after the registration of the case, the trial has not concluded because the FIA’s investigation officers, who are required to appear as prosecution witnesses in order to complete evidence, do not show up. This is routine. Case diaries are replete with show-cause notices, bailable and non-bailable warrants to compel FIA officers to attend court hearings. But this has little effect on them.

Women who participated in the Aurat Marches and were targeted online, women journalists who filed complaints with the FIA and are consistently attacked online, share the experience of so many others: the FIA does nothing about their complaints. Instead, the priority for the FIA is to register cases when men complain their reputation has been damaged by women alleging harassment. On September 29, 2020, an FIR was registered against singer Meesha Shafi and eight others under Section 20 of the PECA read with Section 109 of the Pakistan Penal Code. This FIR comes after a spate of summons issued last year by the FIA in response to a complaint made by singer Ali Zafar. Section 20, referred to as the criminal defamation section of PECA, has been weaponised by the state to silence journalists but also private complainants against women alleging sexual harassment or violence.

In July 2019, several people received a summon by the FIA requiring their attendance in Lahore. Many received summons once the date for appearance written on it had already passed. The summons themselves were vague. They contained no details about what the investigation pertained to or the section of the law it was under. Requests for a copy of the complaint were met with yet another summon. In violation of the law and investigation Rules under PECA, “sources” within the FIA leaked names to the press during the 2019 investigation, even though the law requires confidentiality to be maintained and the Rules bar disclosure of identities of both the complainant and accused.

Despite responding in writing and, in the case of some, appearing in person at the FIA office, an FIR was registered. Those summoned earlier and now named in the FIR include those who have spoken up in support of Shafi, spoken of their own experiences and covered the cases in a journalistic capacity. Many found out about the FIR through news reports. While a civil defamation trial was already underway, now a criminal case has also been lodged, not only against Shafi but also witnesses in her case. The purpose and intent of this exercise is nothing but to further harass and intimidate. It is also a tactic to scare away witnesses and diminish their credibility in the court of law.

The Chilling Effect

An FIR in another city entails contacting a lawyer, applying for protective/transitory bail. The amount is decided by the court and typically can be anywhere between Rs. 30,000-100,000. This is usually granted for a period of a week in which time arrangements have to be made to travel to the city the FIR is registered in — in this case, Lahore. A second lawyer, in the city where the FIR was lodged, must apply for pre-arrest bail. Then the investigation has to be joined which essentially means going to the FIA office and giving a statement that is included in the investigation report. This is all at the pre-trial stage. The trial itself has no specified time frame and can go on for years. As an accused in a criminal case, it is mandatory to attend hearings unless a special exemption is granted by the court. All this adds up to monetary expenses, time and psychological strain, affecting work, life and mental health. The cost of ostensibly one or a few social media posts.

It is a myth that the FIA does not act in a coercive manner against women. This is not the first time an FIR has been registered by the FIA against a woman after she levelled an allegation of sexual violence and harassment. There are other cases in which the FIA obtained search and seizure permissions and moved arrest applications at the investigation stage, while a petition against harassment by the investigation officer and validity of the search and seizure order was pending before the High Court.

The immediate fall out of summons by the FIA and now an FIR, is a chilling effect. Not only do people stop speaking about issues and self-censor to protect themselves, but those implicated in cases, depending on the level of support they enjoy and resources at their disposal, end up settling by retracting and apologising. This then serves as a narrative win for the other party. In the public domain, the outcome – retraction or apology – becomes the subject of debate, useful also to vindicate in ongoing legal proceedings. Hanging a criminal case over someone’s head to force certain terms and extract such an outcome never becomes public knowledge or the subject of discussion – for obvious reasons.

What Next?

statement released by the Women’s Action Forum – Karachi chapter in August 2019, pointed to an emerging pattern of criminal defamation laws being used as a silencing tool against those speaking about sexual harassment and violence, both in relation to online calls outs but also against women who filed cases of harassment before legal forums. In September 2019, this issue was taken up with the Senate’s Functional Committee on Human Rights. The committee was apprised of the illegal and unconstitutional manner in which the FIA acts against citizens — in this case women. Proposals to repeal criminal defamation laws – 499 and 500 of the PPC and Section 20 of PECA – were laid before the committee and recommendations on fixing the civil defamation procedure in relation to cases of harassment, were also made. Since then, summons and investigations have turned into challans and FIRs. The onus lies on parliamentary committees to take this up again. The MeToo movement, women’s marches and more recently, the motorway rape has sparked conversations around everyday misogyny, harassment and a culture that enables harassment and rape. Laws and the criminal ‘justice’ system are being weaponised against women and their supporters, to suppress disclosures of harassment and sexual violence. Especially, PECA.

The biggest threat to gender justice right now are defamation laws and the FIA. Repealing Section 20 of PECA, 499 and 500 of the PPC, fixing civil defamation law and procedures to prevent their misuse, and holding the FIA to account for its excesses is imperative.

The article was originally published in The Current, October 10, 2020.

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