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

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convenient ruse to defeat the law is that an interim warrant is issued for five to six days (less than seven) and then withdrawn and, later on, re-issued.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.

 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.