Fair trial for terrorists?
THE Investigation for Fair Trial Bill, 2012 has drawn a lot of attention as it allows certain law-enforcement agencies to use modern evidence-gathering techniques and devices against suspected militants and terrorists.
The bill has drawn criticism due to the potential of posing a direct threat to the privacy and civil liberties of citizens, since it is feared that security agencies would be empowered to intercept communications at whim.
It has been said that this may clash with constitutional guarantees like Articles 14 and 8, which guarantee inviolability of the privacy of citizens. However, the government claims the existing laws are inadequate for modern counterterrorism needs.
The purpose behind the bill appears to be to regulate the use of interception and make it admissible in court against terrorists. This surely cannot be a bad thing as everyone knows that interception is needed, so why not make it a criminal offence if its use is abused or unauthorised?
It is worthwhile comparing this legislation with similar laws, notably UK legislation, to try to find compatibilities and digressions, since the British legal template has apparently been considered in drawing up the Pakistani variant.
Within the bill, the law rests on issuance of warrants to intercept communications, with the power to ask for such warrants vested in the director-general of Inter-Services Intelligence, the three services’ intelligence agencies, the Intelligence Bureau and the police.
In the first instance the applicant must seek the authority of the minister of interior to apply for the specific warrant. The applicant then has to apply to the Islamabad High Court for the warrant to be issued. If the warrant will enable the collection of evidence and there is a reasonable possibility of an attempt to commit a scheduled terrorist offence, the judge shall issue the warrant.
In practice, every telephone line needed to be tapped has to be agreed to in writing by the minister of interior, which is contrary to the Rules of Business 1973, and then additionally approved by a senior judge. If not, the person allowing the intercept is committing a criminal offence and liable to go to prison for three years.
The issue is that on a strict reading of the bill, every CCTV camera in the country potentially becomes illegal unless the interior minister and a high court judge have allowed it.
In comparison, British law entrusts the secretary of state with powers to issue warrants of interception only on condition of reasons relating to national security, serious crime or similar circumstances of gravity. However, the list has expanded since 2003.
Crucially, in the UK interception evidence cannot be used in court as evidence. It is solely used for intelligence-gathering purposes requiring the intelligence services and law-enforcement agencies to work together, share the information, and then turn the intelligence into evidence admissible in court.
The power to issue warrants for intercepts is used sparingly and human rights are widely taken into consideration to see whether the act of interference in a person’s private life is necessary and proportionate. According to the Regulation of Investigatory Powers Act 2000, an interception warrant is usually only valid for three months, with an interception of communications commissioner held accountable for oversight of the process administered by the executive.
As regards the necessity of issuing such warrants, British law requires the home secretary to consider the possibility of getting information by other means without resort to intercepts. Also, interception may cause collateral invasion of privacy of other people. This happens for instance when there are multiple users on a single phone line, and necessitates the British home secretary to consider less collaterally damaging methods where possible.
The UK courts are not, however, involved in the issuance of warrants, and there is heavy reliance upon integrity and oversight of the executive. Pakistan may be embarking on a time-consuming process by overburdening the minister of interior as the sole permission-granting authority, and then a high court judge to make a decision.
There are also no emergency regulations that can be used if the intelligence services get information and need to act on it immediately in times of crisis.
Since the intercepted material obtained under legal authority of the fair trial legislation would be admissible as evidence in legal proceedings, there has been debate that the law is draconian in not allowing the accused to have access to orders of interception.
However, even in the UK, the manner of interception is not revealed to the accused, as this may prejudice further investigations by exposing the technology driving such investigations. Disclosure of the existence of an intercept is a criminal offence in the UK.
If anything, the law when it comes into effect will make it even harder to prosecute terrorists who already have more than 90 per cent chance of being acquitted, should they even find themselves in court. The bill needs more extensive forethought.
The one good thing about it is that there is a one-year time limit in which the government can correct any defects, so if it is signed into law shortly then not only will the rules have to be written to make it operational, but someone is going to be extremely busy in righting all the wrongs contained within it.
The writer is a security analyst.