The Peca tweaks are aimed at combating disinformation free speech. Here’s why they may also be unconstitutional – Pakistan

When the Prevention of Electronic Crimes Act (Peca) was originally promulgated in 2016, it was done under the pretext of tackling disinformation to preserve public peace. However, it didn’t take long for everyone to realise that this was one of the most consequential expansions of state control over free expression in Pakistan’s history.

Almost nine years on, the state’s attempts at reigning in dissent on the digital space continue with as much zeal — with the latest amendments to Peca not only granting sweeping powers to the executive, but also setting in a new wave of concerns for freedom of speech, judicial oversight as well as due process.

A constitutional quagmire

The amendment itself directly contradicts Article 19 of the Constitution, where freedom of speech is subject only to ‘reasonable restrictions’ — such as in the interest of national security — which the Peca amendment fundamentally fails to do. It simply does not meet the established legal standards of necessity and proportionality for a restriction to be deemed ‘reasonable’.

In the legal context, freedom of speech has been continuously reaffirmed as a foundational democratic right that cannot be restricted arbitrarily. In the Benazir Bhutto v Federation of Pakistan PLD 1988 SC 416, the apex court underscored that any limitation on any democratic right must “not be used as a tool of oppression”. Both the original Peca law from 2016 and the latest amendment negate this principle with their expansive language, allowing the government to prosecute individuals for vague offences without even requiring proof of harm or malicious intent, as the restrictions imposed are neither clearly defined nor proportionate to the harm they seek to prevent.

Further, the rule of legal certainty (nullum crimen sine lege — no crime without law) sets down the principle that criminal laws should be clear, specific and predictable. And yet, the Peca amendment infringes upon this core legal protection by using terms like “false information” and “incitement” without legally defining them.

This leads to a theoretical problem. Under these amendments, a social media post challenging the state narrative could attract up to three years in prison or a crippling penalty of Rs2 million.

But who exactly decides what qualifies as “false information” if it is not held up to a legal standard? A government-appointed authority with no judicial oversight? Does this not mean that this law does not really regulate speech — it regulates opposition? Besides, why exactly is there a need for yet another law covering “false information” when the Pakistan Penal Code (PPC) and defamation laws contain clear statutory provisions on false statements, slander and libel?

These questions indicate that the Peca amendment does not fill a legal gap — it inherently creates a new tool for oppression. Since these amendments have been challenged in court, it is difficult to see how the government will justify why these duplicative, overly broad and vague criminal provisions are necessary. Courts have previously required laws to be narrowly customised to prevent abuse, and the Peca amendment’s ambiguity fails this basic test.

Moreover, the Peca amendment is not just bad law, it is an outright attack on the right to fair trial enshrined in Article 10-A of the Constitution. With the creation of new regulatory bodies such as the Digital Rights Protection Authority (DRPA), the Social Media Protection Tribunal (SMPT), and the National Cybercrime Investigation Agency (NCCIA), the law strips the judiciary of its constitutional role and places these unchecked powers of removing content, imposing penalties and deciding cases without any traditional judicial oversight, in the hands of the bureaucracy — positioning themselves to be the judge, jury and executioner.

This also raises a fundamental due process concern: if the tribunals are not independent of the influence of the government, their rulings will only be politically motivated. Given Pakistan’s history of politically motivated prosecutions and media oppression, there is every reason to believe that these bodies will serve as tools for further suppression, which clearly is not a hypothetical risk, but an inherent design flaw that enables government overreach.

Rule by decree

There is a clear historical pattern here — starting from the regulations of the Press and Publications Ordinance (1963) and Pakistan Electronic Media Regulatory Authority Ordinance, laws have consistently been used to silence the opposition, regulate media narratives and limit ‘unfavourable’ reporting. Extending these controls into the digital sphere, Peca 2025 entrenches and perpetuates a culture of censorship that is legally indefensible under the Constitution.

This expansion of state control over digital expression can actually be seen from the time Peca was enacted and implemented. Even before these amendments, state and non-state actors depended on extralegal means to silence criticism from the public. In 2017, five bloggers ‘vanished’ after allegedly posting content critical of state institutional policies. Though the bloggers were not formally charged under Peca, it was clear that speech on digital platforms was under strict surveillance and the state could exact retribution without due process. These amendments mirror the technique used in 2017, accelerating the surveillance of digital platforms so as to limit speech.

Worse still, the surveillance and punitive measures are compounded by the absence of efficient appellate mechanisms. Under traditional legal principles, individuals, as well as media entities, have the right to challenge decisions in lower courts before proceeding to the highest court. Peca cripples this right by mandating that the appeal may be filed exclusively to the Supreme Court, an institution which does not function as a routine appellate body. This in itself creates an unreasonable burden on citizens, as appealing to the highest court is financially, procedurally and logistically out of reach for most individuals.

As an apex body, the Supreme Court is meant to hear constitutional matters, not serve as the first and the only court of appeal for every citizen targeted under draconian laws. The apex court has continuously overturned executive overreach, most notably in Suo Moto Case No. 5 of 2012 (Memogate Scandal) PLD 2012 SC 553, where it held against the unlawful concentration of power to non-judicial bodies.

It seems that the Peca amendment’s judicial overreach is likely to be struck down, but until then, it may create a system where faceless government bodies jeopardise careers, silence dissent, and punish individuals. This is not the rule of law — it is rule by decree and the amendment is a direct assault on due process, and possibly even the death of fair trials.

Muzzling the press

In light of the constitutional issues highlighted above, it would be safe to say that the Peca amendment is a direct assault on press freedom. This is exactly why there has been significant uproar over the amendment by journalists, with the Pakistan Federal Union of Journalists even challenging the same in the Islamabad High Court.

Being a signatory to the International Covenant on Civil and Political Rights (ICCPR), Pakistan is obligated to protect freedom of expression, only restricting it in cases where there is incitement to violence or genuine national security threats — both requiring strict legal safeguards and judicial oversight. Without an objective legal standard for “false information”, Peca directly contradicts these obligations, exposing the country to potential scrutiny under international human rights law.

The Peca amendment also doesn’t help the country’s image when it comes to press freedoms, with Pakistan already ranking a dismal 152 out of 180 on the World Press Freedom Index in 2024. With the latest Peca amendment, journalists and content creators now run the risk of being persecuted over a single investigative report critical of government institutions, a satirical tweet or even an expose on corruption.

Courts worldwide have struck down laws that create a “chilling effect” on free speech. The US Supreme Court in the New York Times vs Sullivan 376 US254 (1964) ruled that imprudent legal restrictions on journalism stifle public debate and undermine democracy. The Peca amendment does create this “chilling effect”.

In fact, even before the PECA amendment, the ban on X, the crackdown on VPNs, and other social media platforms signalled a warning: the state wanted complete control over the digital space.

Enabling authorities to shut down news channels, limiting access to encrypted communication, and punishing whistleblowers under the guise of restraining ‘false information’ are all signs that Pakistan is now dangerously close to replicating China’s and Iran’s digital authoritarianism, where the state determines what information the public is allowed to consume. Ultimately, a free press is the cornerstone of any democratic society, which the Peca amendment seeks to fracture beyond repair.

Beyond the obvious contentions detailed above, the Peca amendment is also an economic disaster waiting to happen. No serious tech company would want to invest in a country where the digital economy and landscape seem to be struggling, with the added burden of potential excessive penalties and a compliance regime bordering on near-complete censorship.

In an era where the world is competing for digital innovation, be it in FinTech or economic transformations, Pakistan is still debating the basic right to free speech.

Fortunately, there is still time to reverse the process if the courts intervene promptly. The real question is whether we, as a nation, are willing to accept a future where speaking the truth is a crime, journalism is at its weakest due to fear of persecution and silence is the only option.

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