Des­per­ate steps

The Pak Banker - - 4EDITORIAL - Farieha Aziz

AC­CORD­ING to the vi­sion­ar­ies at the Min­istry of In­for­ma­tion Tech­nol­ogy and Tele­com (MOITT), an ideal tele­com and IT pol­icy space in Pak­istan would have Sec­tion 34 from the Preven­tion of Elec­tronic Crimes Bill (PECB) in ex­is­tence as law, with all other laws and poli­cies in the IT and tele­com space re­flect­ing it. This is ex­actly what Sec­tion 9 of the Tele­com Pol­icy 2015 seems to in­di­cate.

When MOITT hit a wall with the IMCEW's (In­ter-Min­is­te­rial Com­mit­tee for the Eval­u­a­tion of Web­sites) le­gal­ity up for chal­lenge, it dawned upon them that the Pak­istan Telecom­mu­ni­ca­tions Au­thor­ity (PTA) should be pushed for- ward as the body to man­age con­tent on­line. Per­haps they thought, if the IMCEW was not le­gal enough since it wasn't a leg­is­lated en­tity, surely PTA would cut it since it was a statu­tory body.

But then they were probed with where in the PTA Act was PTA de­riv­ing con­tent man­age­ment pow­ers. That's when it seemed al­most in­ge­nious to insert th­ese pow­ers into the pro­posed draft of the PECB. So in March 2015, MOITT op­er­a­tives dili­gently sifted through the PTA Act to pick out lan­guage from there and add it to the PECB. A look at the April 2015 ver­sion of the bill re­flects this. In the def­i­ni­tions' sec­tion, 'au­thor­ity' stands for PTA. The def­i­ni­tion of 'in­tel­li­gence' in PECB - which is a stand in for in­for­ma­tion and con­tent - is a copy-paste from the PTA Act.

All con­tent-re­lated sec­tions of PECB con­tain ref­er­ences to both 'in­tel­li­gence' and 'au­thor­ity'. Af­ter a hue and cry over this ad­di­tion, in the amended ver­sion of the bill ap­proved by the Na­tional As­sem­bly Stand­ing Com­mit­tee on IT in Septem­ber 2015, the word 'in­tel­li­gence' was re­placed with in­for­ma­tion. Yet the def­i­ni­tion re­mained the same, and a ref­er­ence to the PTA Act was added to it, to make sure it still served the same pur­pose.

Lit­tle did the govern­ment an­tic­i­pate the op­po­si­tion to the bill that came from out­side and in­side the leg­is­la­ture - and in both houses. The Se­nate drew a line on PECB: the bill would not be al­lowed to pass in its cur­rent form. Lack­ing a ma­jor­ity in the up­per house nat­u­rally posed a dilemma to the govern­ment's am­bi­tions. But per­sist in gain­ing pow­ers they had to, and so the Tele­com Pol­icy 2015 of­fered yet an­other op­por­tu­nity.

Launched in Jan­uary 2016, Sec­tion 9.8.2 of the pol­icy reads: "PTA is re­quired to man­age con­tent over the in­ter­net through in­te­grated li­cences or ISPs as per their li­cens­ing con­di­tions un­der the act."

But where to find a jus­ti­fi­ca­tion in law, so they came up with this: "This frame­work will en­able PTA to mon­i­tor and man­age con­tent in­clud­ing any blas­phe­mous and porno­graphic ma­te­rial in con­flict with the prin­ci­ples of Is­lamic way of life as re­flected in the Ob­jec­tives Res­o­lu­tion and Ar­ti­cle 31…The frame­work would nev­er­the­less pro­tect the right to free­dom of speech and ex­pres­sion un­der Ar­ti­cle 19 of the Con­sti­tu­tion sub­ject to any rea­son­able re­stric­tions im­posed by the Con­sti­tu­tion and the law and cover pub­lic net­works."

Any ' frame­work' would have to come through law, in­tro­duced by the leg­is­la­ture, drafted within the pa­ram­e­ters pre­scribed by the Con­sti­tu­tion to pro­tect and not strip away fun­da­men­tal rights. The ex­ec­u­tive, through a tele­com pol­icy by writ­ing in an SOP as a 'frame­work' is not the equiv­a­lent of that. Both Ar­ti­cle 31 and the Ob­jec­tives Res­o­lu­tion state Mus­lims shall be en­abled to or­der their lives in the in­di­vid­ual and col­lec­tive spheres in ac­cor­dance with the teach­ing and re­quire­ments of Is­lam. The word here is 'en­abled'. There are ways of en­abling cit­i­zens to shield them­selves from un­wanted and un­war­ranted ma­te­rial on­line with­out the state play­ing nanny and in­fring­ing on rights.

More­over, while recog­nis­ing the rights of mi­nori­ties and fun­da­men­tal rights of all cit­i­zens un­der the Con­sti­tu­tion, the Ob­jec­tives Res­o­lu­tion re­quires the state to "ex­er­cise its pow­ers and au­thor­ity through the cho­sen repre- sen­ta­tives of the peo­ple". That again would be the leg­is­la­ture.

Mean­while, 9.8.4 states: "PTA un­der its inherent man­date on regulation of ' ac­cess to con­tent'…will per­form the as­signed role..." What 'inherent man­date'? The one that's un­der scru­tiny be­fore court? Or the man­date be­ing cre­ated through PECB? Or is this a ref­er­ence to 9.8.2 in the tele­com pol­icy, which hap­pens to be a pol­icy doc­u­ment is­sued by the ex­ec­u­tive and not a law passed by par­lia­ment? Then 9.10.1 pro­poses that "in or­der to re­alise the ob­jec­tives of this pol­icy," changes be made to acts, or­di­nances and rules. Th­ese in­clude, but are not lim­ited to, the PTA and Pemra acts, as well as the telecom­mu­ni­ca­tion rules.

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