The law does not refer to or allow for any prior restrictions on speech. What it does is criminalizes – indeed very seriously criminalizes with capital punishment- any act of blasphemy against the Holy Prophet Muhammad (PBUH). There are simply no restrictions in the law. Therefore in so far as glory of Islam is concerned, there is no law – cyber or otherwise- that can be argued as the basis for the restrictions on the internet. Since PTA’s action – by their own admission on the orders of an extra-constitutional body called the Inter-Ministerial Committee (“IMC”) on website evaluation and blocking- is an executive action, it would need to have been clothed in the authority to do so. In absence of a specific law, any executive action censoring the internet is an illegal order without the force of the constitution and law. The same goes for every claw-back. Indeed if the Government was to return with a law allowing for such restrictions in the name of any claw-back specifically mentioned in Article 19, it would still have to face judicial scrutiny as to the reasonableness of its restrictions.
On the issue of reasonableness, the case law is quite clear. In the Jamaat-e-Islami case, the Honourable Supreme Court had the following observation:
“12. It is well-settled that Statutes must be intelligibly expressed and reasonably definite and certain. An act of the Legislature to have the force and effect of law must be intelligibly express and statutes which are too vague to be intelligible are a nullity. Certainty being one of the prime requirements of a statute, a statute in order to be valid must be definite and certain. Anticipated difficulty in application of its provisions affords no reason for declaring a statute invalid where it is not uncertain. Reasonable definiteness and certainty is required in statues and reasonable certainty is sufficient. Reasonable precision, and not absolute precision or meticulous or mathematical exactitude, is required in the drafting of statutes, particularly as regards those dealing with social and economic problems.”[5]
In Pakistan Tobacco Company Case, the Supreme Court of Pakistan held:
“There is consensus of the judicial opinion that delegation of powers should not be uncontrolled, unbridled and to check the arbitrary attitude of the Executive in exercise of powers the legislature must provide some guidelines basing on the policy of the government to exercise such powers.”[6]
Furthermore it is settled law that penal provisions must explicitly define the conduct of a criminal and unless it clearly and categorically defines its boundaries, it would be treated as an arbitrary enactment, because the citizens against whom a penal action is proposed, has no notice that on account of what type of conduct he is being charged and has been held responsible for penal consequences.
In the Mehram Ali Case, the Supreme Court ruled:
“The conferment of power on the officers referred to in clause (i) of subsection (2) of section 5 without being fired upon by the accused is not justifiable. An officer of any of the above forces under the present provision can kill any person, if he considers that in all probability the former is likely to commit a terrorist act or scheduled offence. The formation of opinion as to the probability or likelihood of commission of offence will vary from person to person as it depends on subjective satisfaction. There is no check or guideline provided for the exercise of the above power conferred by the above provision. We are, therefore, of the view that the aforesaid provision in its present form is not sustainable. The same may be amended and it may be provided that the officer can fire upon an accused person if he has been himself fired upon by him.” Emphasis Added. [7]
Legislations that fail the test of specificity and reasonableness have been repeatedly struck down by the Pakistani courts. For example in the Waris Meah Case, the Supreme Court ruled:
“Here, not only is there discretion in the specified authorities whether they will proceed at all against any member of the class concerned, viz. offenders against the Act, but there is also an unfettered choice to pursue the offence in any one of three different modes which vary greatly in relation to the opportunity allowed to the alleged offender to clear himself, as well as to the quantum and nature of the penalty which he may incur. The scope of the unguided discretion so allowed is too great to permit of application of the principle that equality is not infringed by the mere conferment of unguided power, but only by its arbitrary exercise. For in the absence of any discernible principle guiding the choice of forum, among the three provided by the law, the choice must always be, in the judicial view point, arbitrary to a greater or less degree.