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Bane or Boon? Investigation for Fair Trial Bill, 2012 I

Precisely, the law has not successfully transformed the extant practice of informal regime of ‘interception’ or ‘surveillance’ to formal regime. In reality, a dual formally informal mechanism has been provided, which will ultimately provide a legal cover to illegal practices.

Everyone has an opinion to offer on the newly-passed law styled as the Investigation for Fair Trial Act, 2012 (IFT). Some call it intrusive because it is designed to circumvent the right to privacy as envisioned in Article 14 of the Constitution of Pakistan; others think that it is symbolic of the fact that the country is united against terrorism and that with the passage of the bill into the law, more convictions will be recorded against terrorists. From a practitioner’s viewpoint, both views are way off the mark. The reality and practice in vogue belie both.

The first and the foremost is the point that intelligence agencies are already using ‘interception’ and ‘surveillance’ and have never really bothered to subject themselves to any formal oversight mechanism involving judiciary. Those, indeed, allude to legal provisions which were heretofore absent. This may be considered a step forward, but a careful reading of the law shows that, in fact, it is a case of ‘one step forward and two steps back’. The law as it has been passed provides for two types of warrants: one, a judicial warrant issued by a judge (under Section 11 of IFT) and two, an interim warrant issued by the executive head (under Section 14 of IFT). The interim warrant can be issued for seven days in cases of urgency and has to be put for approval to a judge. In our criminal justice system, issuing warrants has been a judicial function and through IFT, the judicial power will be exercised by executive, which might run against Article 175 of the Constitution. A convenient ruse to defeat the law is that an interim warrant is issued for five to six days (less than seven) and then withdrawn and, later on, re-issued.

Precisely, the law has not successfully transformed the extant practice of informal regime of ‘interception’ or ‘surveillance’ to formal regime. In reality, a dual formally informal mechanism has been provided, which will ultimately provide a legal cover to illegal practices.

Secondly, the law is utterly abstract. The concept of ‘applicant’ (and not of Investigation Officer) has been introduced. The ‘applicant’ has been defined in Section 3 in very wide terms and it includes organizations, which are a product of executive orders and not of statutes. For example, no law authorizes constitution of ‘Field Intelligence Unit’, yet it has been included in the ‘applicant’ category. Likewise, Section 18 provides for serving of the warrant on the ‘service provider’ through ‘Designated Agency or Board’ and none else. Without any notification of a Designated Agency, the process cannot be served and executed. Besides, the provision provides a cushion to already overly-protected ‘service providers’ to ward off any legal order provided through any other process. For example,
Section 94 of the Criminal Procedure Code 1898 authorizes a court or a police officer to make the documents or other things available by anyone when required and necessary for the purpose of investigation. But the law has not anticipated how the situation will be dealt with.

 The law as it has been passed provides for two types of warrants: one, a judicial warrant issued by a judge (under Section 11 of IFT) and two, an interim warrant issued by the executive head (under Section 14 of IFT).
 Thirdly, the law does not contribute towards obtaining lawful convictions. The IFT was introduced in the wake of acquittal of terrorists wanted in the high-profile terrorism cases and it is expected that it will address the legal snags affecting prosecutions. The expectation is not very well-placed for an obvious reason that in many such cases no electronic evidence was produced. Had it been produced and admitted, it would have always been open to rebuttal. The only step forward in IFT is that the ‘expert’ who retrieves the electronic evidence has been brought at par with an expert under Section 510 of Criminal Procedure Code. But still a smart lawyer may manage to bring the expert to courtroom for cross-examination on the grounds of necessity and for the sake of justice. The expert can only guarantee the integrity of electronic evidence, but the whole case of prosecution must be corroborated by electronic evidence. In reality, the ‘agencies’ arrest terrorists and hand them to police to prosecute them. The information, trust and evidence gaps between the two organizations result in failed prosecutions.
Fourthly, the IFT is very narrow in its application. It only provides for issuance of warrants of ‘interception’ or ‘surveillance’ in a very limited number of cases that are registered under specific laws, which are outlined in a schedule to IFT. These laws do not include Anti-Money Laundering Act, 2010, National Accountability Bureau Ordinance, 1999 and some important offences of Pakistan Penal Code, 1860. The narrow application implies limited use of the law. The laws outlined in the schedule also focus primarily on external security and military perspectives. The internal security dimension, which focuses on protection of life and property of a citizen and which serves as a conduit between law-enforcement and military operation is clearly missing. In other words, the linkage between crime and terrorism is absent. Crime and terrorism are inexorably linked with each other. Its exclusion culminates into a faltered strategy and an inchoate law.
Fifthly, Section 23 of IFT is the reminder of the fact that the law is not to strengthen the primary law-enforcement agency i.e. police. As always, police will be chipped in at a later stage only to result in gaps of information, trust and evidence. Section 23(1) calls for reproduction here:
 The only step forward in IFT is that the ‘expert’ who retrieves the electronic evidence has been brought at par with an expert under Section 510 of Criminal Procedure Code.
 ‘Registration of a case: The evidence including the data, information, and material collected or received pursuant to the warrant shall be examined by the officer authorized by the applicant in this behalf and if he is able to form an opinion, that the same discloses elements of commission, harbouring, abetting or conspiring or attempting to commit any schedule offence, he may immediately cause registration of an FIR and in that event he shall hand over the evidence including material, information, and data to the concerned investigation officer so that it forms part of the record for the purpose of investigation and prosecution.’

The problem with ‘handing over’ is too serious and is obvious. It has been the root-cause of many acquittals in high-profile terrorism cases, which has brought embarrassment to law-enforcement agencies in Pakistan. If anyone is considered competent enough to get the warrant issued for ‘interception’ or ‘surveillance’, then why he is not ready to face the court and be himself the investigator in the case. Authority must be coupled with responsibility. Anyone wishing to enjoy the authority should do so with reciprocal responsibility. The duality of the system also exposes citizens to breach their right to privacy.

Finally, the Statement of Objects and Reasons spells out that the IFT is primarily a law on ‘preventive’ side. The statement reads in its fourth recital:
‘Whereas, in Pakistan, the laws and the criminal justice system are not tailored for or geared towards pre-empting and preventing acts of crime or terror, and the act of crime or terror has to actually occur for registration of an FIR and thereafter the police take cognizance. It is expected that the law would provide a legal framework for agencies to lawfully conduct the surveillance of an individual who is likely to or suspected of engaging in preparation to conduct an act of crime or terror.’

Instead of empowering police with legal powers on preventive side, the IFT is an attempt to formalize the role of agencies in investigations. Under the scheme of adjudication in criminal cases, any evidence collected prior to the registration of an FIR is not given due heed at trial and though the judges consider it, they seldom accord value to such evidence. Thus it has criminal jurisprudence and a due process of constitutional obligation (under Article 10-A) of the Constitution has developed that it is likely that IFT will not prove itself to be a boon for the rule of law.

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