A day after President Asif Ali Zardari signed the Investigation for Fair Trial Act into statute books on February 20, he told a delegation of the US Senate’s Committee on Foreign Relations that the Act would help in quick and effective prosecution of terror suspects. The law regularises, legalises and makes admissible in the court of law evidence collected by modern techniques, including audio and video recordings, still photography, documents, papers, emails, text messages and phone call records among other things. It will work on two levels: it seeks to make judicial proceedings fairer by granting law-enforcement agencies the means through which they can collect evidence in a timely and lawful manner; and it keeps a check on the arbitrary powers of surveillance that intelligence agencies have been abusing and misusing.
The debate regarding the Investigation for Fair Trial Act has centred on the constitutionally guaranteed right to privacy versus the rising threat of crime and insecurity. Here, the Herald steps beyond these two points to explore how the law has come about and whether it will be effective in achieving its stated goals.
“The Act is aimed at tackling terrorism.”
YES, WITH SOME RESERVATIONS
Members of parliament have hailed the Act as a major step in Pakistan’s fight against terrorism. Prime Minister Raja Pervez Ashraf has hailed the law as a demonstration of Pakistan’s resolve against terrorism whereas a jubilant member of the opposition Pakistan Muslim League–Nawaz (PMLN) says that “the need of the hour is to prevent terrorism”. But the law itself states that its objectives are to “prevent the threat or any attempt, to carry out scheduled offences” and it goes on to list five scheduled offences which include offences under the Anti-Terrorism Act, 1997, and offences under the Prevention of Anti-National Activities Act, 1974, among others.
The difference in the perception of the law and its stated intent has led some opposition politicians, such as PMLN’s Anusha Rehman, to claim that its application should have been limited to only those suspected of terrorism. Sana Saleem, an executive director of Bolo Bhi, an advocacy, research and policy organisation, has a similar view: “The law should only be restricted to terror suspects,” she says, otherwise, the phone tapping and electronic eavesdropping mandated by law could endanger the fundamental rights of all citizens.
But Tasneem M Noorani, a former federal interior secretary, believes that terrorism is not the only crime which needs to be checked. “There are many offences which are heinous but do not fall under terrorism and need to be curbed,” he tells the Herald and explains that the offences listed in the Act are all, in some way or form, related to terrorism. “All the offences the law has listed make sense because they are interconnected: prohibiting private armies, banning anti-national activities and disposing off arms are all means to curb terrorism,” he says.
“The unanimous and speedy passage of the Act is an example of responsible legislation.”
ON THE SURFACE, YES
When the Act was first presented in the National Assembly, Leader of Opposition Chaudhry Nisar Ali Khan, a PMLN legislator, was quick to declare it a “black law”. Even the ruling coalition partner, the Muttahida Quami Movement (MQM), had some reservations. The party’s legislators, in particular, appeared to express the concern that security and intelligence agencies could misuse the law for political victimisation, especially since the Act fails to define the words ‘terrorism’ and ‘terrorist’ in narrow terms. The bill was eventually passed into law by the National Assembly after multiple amendments. “We inserted many changes and now the law seems more transparent,” says Rehman.
One amendment which the PMLN claims credit for is the elimination of the Federal Investigation Agency (FIA) from the list of organisations empowered to obtain warrants for intercepting communications. “In the first draft [of the Act], 16 agencies had the authority; after the amendments, only six agencies do,” says Noorani. Authorised agencies now comprise the Inter-Services Intelligence, the Intelligence Bureau, the three military intelligence agencies and the police. The FIA was knocked off the list because it is “not necessarily a forefront agency for crime control,” says Noorani.
The amendments that transformed the “black law” to a seemingly bearable law include provisions for punishing agency personnel who misuse the authority that the Act invests in them. Punishment could go up to five years of imprisonment or a fine of 10 million rupees or both. While the opposition legislators can claim that they were able to get the government to accept as many as 32 amendments to the Act, some of them are still worried that the new law can be misused. “ Even after our amendments … this law must be used with care and consideration,” says Rehman.
Not everyone, however, believes that all the amendments sponsored by the opposition are good. “I don’t see how reduction in the period of issuance of warrants [from 180 days, originally, to 60 days] is an achievement because there is still a clause for renewal of the warrant, and there is no limit to the number of renewals an officer can seek,” says technology rights activist and lawyer, Nighat Dad. Barrister Zafarullah Khan, a Supreme Court lawyer and head of his own Watan Party, continues to describe the Act as a blatant violation of privacy rights.
With so many reservations about the Act, how was it passed without a single ‘no’ in the final voice vote in the National Assembly? According to a PMLN legislator, who chooses to remain anonymous: “We were told by the government that the law must be passed as quickly as possible. They [the government] said that terrorists were slipping through its fingers and it needed this law to convict them.” This may also explain why the ruling party accepted amendments by other parties, including the opposition, in almost no time.
“The process of gaining a warrant to intercept communications is designed to prevent misuse.”
In order to obtain a warrant of surveillance, an applicant from the authorised agency must go through a number of procedures. The first is that the personnel of that agency must first notify an officer of grade 20 or above in their own department of their suspicions regarding a possible terror suspect. If the authorising officer deems the preliminary evidence strong enough to warrant interception, he will forward a written application to the interior minister. Once the interior minister’s permission has been obtained, the officer may apply to a High Court judge for a warrant; if the judge is convinced that there is a reasonable possibility of the suspect attempting a scheduled offence, he will issue a warrant in his chambers, in the presence of the officer.
Some experts regard the process long-winded but others see it as being helpful in preventing the arbitrary application of surveillance powers. “Approval from the interior ministry is asking for too much. It is one of the slowest ministries in the country, and there will be months of delay,” says one security analyst who does not wish to disclose his name. Saroop Ijaz, lawyer and human rights activist, views the situation differently. “The process is not too tedious; it is careful and the fact that there is a judge involved is the saving grace of this law.”
There is, however, a snag in the process — the interim warrant. “The interim warrant can be issued if there is a time constraint and a reasonable threat of an offence,” says Ijaz. It becomes applicable when the agency personnel believe that no time can be wasted in meeting judges; they can begin surveillance of the suspect, after which they are granted seven days in which to make their case to the judge.
Barrister Khan criticises the interim warrant on the grounds that it would be too easy to misuse it. “When an officer arrests someone without a warrant, they only have 24 hours to present their case to the judge. Why does the interim warrant [under the Act] allow seven days?”
Ijaz is also critical of the interim warrant but adds some qualifications. “It is unacceptable in principle”, but, “in dire situations, when agency personnel believe that a bomb may go off and kill people and time is of the essence, foregoing a regular warrant may be understandable,” he says. But he cautions: “If you allow these exceptions, you put yourself on a very slippery slope.”
Apparently, the government has tried to institute checks and balances in the surveillance process but many loopholes in the law still remain which may allow its abuse and misuse.
“The Investigation for Fair Trial Act is fair, because it is based
on western models.”
One of the government’s main justifications for proposing the Investigation for Fair Trial Act was that existing laws didn’t adequately provide for, and regulate the use of, advanced investigative technology. Frequent examples of the use of comparable techniques and procedures employed by countries such as the US, UK and India – especially in the wake of 9/11 – were quoted by lawmakers to make their point. And there is a lot of debate about the extent to which the Pakistani law is modeled on the UK’s Regulation of Investigatory Powers Act 2000 (RIPA).
Manzar Zaidi, a security analyst, says that there are some major and fundamental differences between the two laws. For one, Zaidi points out in an article published in daily Dawn, on February 19, information obtained through the interception of communications is not admissible as evidence in court in the UK whereas, in the case of Pakistan, allowing such evidence to be admissible in court is the primary purpose behind the passage of the law.
Secondly, Zaidi explains, the power to issue warrants is used sparingly in the UK. Rehman of PMLN echoes his view, saying that in the last four years only 4,000 surveillance warrants have been issued in the UK. Pakistani experts have little confidence that local intelligence agencies will use the law in a sparing manner. As Ijaz says, “Historically, our agencies have been known not to use information in the noblest of ways.”
Another important distinction between the Pakistani and British laws, as pointed out by Zaidi, is that the courts in the latter case are not involved in obtaining warrants, while both courts and the interior ministry are involved in the former case. The biggest and most important difference, however, is that there is no concept of an interim warrant in the British law.
Not everyone, though, believes that a departure from the British template is necessarily a negative thing. Babar Sattar, a High Court lawyer based in Islamabad, believes it is a mistake for lawmakers to ignore a country’s political and cultural environment. He also says the UK’s intelligence agencies, in contrast to those in Pakistan, are structured in a way that makes laws difficult to misuse. “There are so many basic differences in the way our countries work. For example, in the West, powers were given and taken as and when the security situation demands but in Pakistan, once you delegate authority to security agencies it is almost impossible to claim it back.”
“The Act will be effective in combating terrorism by increasing the possibility
NOT ON ITS OWN
Although there are no officially verifiable figures for the conviction rate in terrorism cases, there is general agreement that the numbers are dismally low. “Currently, we have one per cent conviction rate in terrorism cases,” says Noorani.
People such as Zaidi take the view that allowing more types of evidence to become admissible may actually reduce the number of convictions even further, given that it could increase the length and complexity of trials. Others see it entirely differently. “As long as traditional evidence is not overlooked in lieu of this law, the system is safe and may even improve,” says Supreme Court lawyer Salman Akram Raja. Noorani is even more optimistic: “The admissibility of this type of evidence in court can only strengthen the process of prosecution,” he says and adds, “If the investigator is honest, this law has a chance.” Opposition politicians also agree. “If the law is not misused, it could affect the status quo in a positive way,” says Rehman.
However, others, say that the law in itself is not the solution. “This law is not the correct solution. It should not be used as a substitute for a comprehensive counterterrorism strategy,” says Ijaz. “It’s true that this evidence could prove to be the missing X factor needed to prosecute criminals, but the real, long-term solution lies in empowering the police and empowering the National Counter Terrorism Authority,” he adds.
“There are better ways to catch terrorists,” says Barrister Khan. “This Act is regressive, taking us back in time because it violates the Constitution.” What is more important is that lawyers train the police in how to gather evidence. If prosecutors and the police work together, there would be no need for such stringent laws, he says.