2022 order on controversial Peca section ‘in legal limbo’

• Then IHC-CJ Minallah struck down Section 20 via short order, didn’t issue detailed judgement in three years
• Files have now been sent back to IHC; legal experts believe he can’t give reasons now as SC judge

ISLAMABAD: More than three years after then Islamabad High Court (IHC) chief justice Athar Minallah struck down Section 20 of the Prevention of Electronic Crimes Act, 2016 (Peca), the decision has found itself in a legal limbo as the judge has yet to issue detailed reasoning for his verdict.

In his order dated April 8, 2022, Justice Minallah declared illegal the provision — introduced by the PTI government — which expanded the definition of defamation to include criticism against institutions and state authorities and proposed an imprisonment of five years.

“The criminalisation of defamation, protection of individual reputations through arrest and imprisonment and the resultant chilling effect violates the letter of the Constitution…,” Justice Minallah had noted in his short order.

As per standard legal practice, a judge issues a short order, outlining the verdict, and gives a detailed order later elucidating their reasoning for reaching the conclusion.

However, Justice Minallah never issued the detailed reasoning. In November 2022, he was made a Supreme Court judge.

The judge kept the case files with him for writing a detailed order and did not return them to the IHC registrar despite his elevation to the top court.

According to court officials, the files were returned recently without any detailed order.

The move has created a legal ‘grey area’ as the IHC is once again hearing a set of petitions filed against amendments introduced to Peca earlier this year by the incumbent government.

Some petitioners, who challenged the fresh amendments, relied on Justice Minallah’s 2022 short order to substantiate their case against criminalisation of defamation.

However, in the absence of detailed reasoning, legal experts term such citation as weak.

While a court official told Dawn the case files might be handed over to a bench for rehearing, legal experts think otherwise.

According to former law minister Farooq H. Naek, a short order is a “perfect judgement”, but in the absence of detailed reasoning, the judgement can be labelled as weak.

He wondered why the files were not returned to the IHC registrar by Justice Minallah for three years.

Legal expert Mohammad Akram Sheikh told Dawn the Supreme Court thoroughly discussed the validity of short orders in a judgment authored by former chief justice Moham­mad Ajmal Mian in 1997.

He pointed out that a short order announced and signed by a judge is considered a valid judicial order.

According to Mr Sheikh, Justice Minallah, now being a Supreme Court judge, cannot give reasoning for his judgement passed in the IHC.

In February 2022, the PTI government had promulgated a presidential ordinance amending the Peca.

The controversial ordinance modified the definition of a ‘natural person’ to include “company, association or body of persons whether incorporated or not, institutions, organisations, authority or any other body established by the government.”

Essentially, it enabled any per­son to lodge a complaint over criticism of a civic body or any government entity or institution.

Two factions of the Pakistan Federal Union of Journalists, Pakistan Broadcasters Asso­cia­tion and other activists challenged the ordinance.

Justice Minallah, in his short order, “allowed” the petitions and struck down Section 20, which dealt with the defamation of a ‘natural person’.

Subsequently, the court decl­ared the ordinance “unconstitutional” and “invalid” and declared it void.

Published in Dawn, July 16th, 2025



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