Agencies get sweeping powers: National Assembly adopts Investigation for Fair Trial Bill
The National Assembly on Thursday unanimously passed 'The Investigation for Fair Trial Bill, 2012', incorporating amendments proposed by the PML-N, aiming at empowering law-enforcement and intelligence agencies to investigate and collect evidence using modern techniques and devices to curb terrorism in the country.
Copyright Business Recorder, 2012
As many as 32 amendments were incorporated in the Bill on the behest of the opposition party the PML-N. The Muttahida Qaumi Movement (MQM) and PML-N attached separate notes of dissent in which they expressed their reservations on the Bill, fearing it might violate fundamental rights of citizens as guaranteed in the Constitution, particularly privacy rights.
The law was designed to provide legal framework to the agencies to lawfully conduct the surveillance of an individual who is likely to or suspected of engaging in preparations to conduct an act of crime or terror. However, the law would also render necessary assistance in successful prosecution of perpetrators of such crimes.
According to Object and Statements of the Bill, the law encourages all investigation agencies including intelligence agencies to only collect genuine evidence in accordance with the law and thus curb the temptation of planting false and fabricated evidences against individuals in violation of their human rights, due process and civil liberties. Whereas , it is expected that with the entry into force of this law, all law enforcement and intelligence agencies will be governed by a uniform legal system for collection of evidence ,which will be admissible even if collected prior to the registration of an FIR.
The law shall prevent the use and abuse of interception powers, particularly by intelligence agencies, besides forcing them to abide by the law. Thereby, the intelligence agencies will be performing their originally intended function of pre-empting any incident or act of crime or terror in a timely manner to ensure the protection of fundamental rights, including the right to life of the citizens of Pakistan.
The Bill was tabled by Federal Minister for Law and Justice Farooq H Naik. PML-N lawmaker Zahid Hamid expressed reservations on the Bill. He was of the view that PML-N was not opposing the bill, but it had reservations on several of its clauses, which might cause damage to fundamental rights of citizens. He feared that the law could be misused and there was a need for proper monitoring to safeguard human rights. Citing potential threats to fundamental rights of people, the PML-N proposed 33 amendments to be incorporated in the Bill. The law minister, while allaying PML-N fears, said that the government would consider all proposed amendments, if the opposition presented them in the House.
The government claims that "existing laws neither comprehensively provide for nor specifically regulate use of advanced and modern investigative techniques such as covert surveillance and human intelligence, property interference, wire-tapping and communication interception that are used extensively in other countries, including the US, the UK and India". The amendment, 'Prohibition of misuse of intercepted material' reads: (1)The material intercepted pursuant to the warrant of surveillance or interception shall not be used by any official of the applicant or of the Court or any other person associated with the provision of this Act. (2) Any person who violates the provision of sub-section (1) shall be punishable with imprisonment of up to five years or with fine up to ten million rupees or with both. The aforementioned amendment has been incorporated in the Bill.
The government accepted PML-N's amendment to exclude the name of Federal Intelligence Agency (FIA) from paragraph (a) of Clause 3 of the bill, which reads: 'applicant' means, Director-General Inter Services Intelligence (ISI), Intelligence Agencies of the three Services, Intelligence Bureau (IB) Police and Federal investigation Agency (FIA).
The PML-N also proposed that the law shall be repealed one year after coming into force, but this was rejected by the government. The House accepted that the law shall be repealed three years after coming into force. The government accepted as many as 32 of 33 amendments proposed by the opposition.
The Leader of the Opposition in the National Assembly Chaudhry Nisar Ali Khan said: "It is not an ideal law and I am not completely satisfied with it. The law should not be misused, we will monitor how intelligence agencies implement it. We wanted to review this law after one year, but now any government coming into power would review it after three years."
According to the law the role of investigation in terrorism activities would be given to Director-General of Inter Services Intelligence, three Services Intelligence Agencies, Intelligence Bureau and Police. According to the Bill: "The warrant of surveillance or interception to be issued by the judge may authorise and allow the lawful doing of any or all the following acts:
(a) Interception and recording of telephonic communication of the suspect with any person and of that person with any other person. (b) Video recording of any person, persons, premises, even, situation etc (c) Interception or recording or obtaining of any electronic transaction, including but not limited to e-mail, SMS etc (d) Interception and taking over of any equipment used in the communication in respect of which the warrant is issued, including but not limited to telephone, cell phone, mobile SIMs, electronic database demonstrating linking of electronic communication with the database belonging to the person in respect of whom the warrant has been issued. (e) Collection of evidence through any modern devices in addition to the ones mentioned above (f) Use of human intelligence (g) Covert surveillance and property interference (h) Access to any information or data in any form related to a transaction, communication or its content."