How fair is ‘Fair trial bill’?

Posted by Faheem Belharvi
Friday, December 28, 2012 – On December 20, 2012, the Pakistani Parliament’s lower house approved a legislative bill, which if signed into law, will empower the state to conduct the interception of private communications in order to curb terrorism. There are mixed reactions to this legislation, termed as the “Fair Trial Bill”, which will sanction the state’s security agencies to tap phone calls as well as private communication.

The legislation allows security agencies to tap people’s phone calls and intercept other private communications in order to catch terrorists. 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 rationale is that democratic nations, who endeavour to jealously guard the rights of freedom of privacy, have also been forced to succumb to the need of the hour and authorize monitoring of calls and keep a check over terrorism.

The obverse view is that it is a breach of privacy. Some critics label this law as un-Islamic as well and contrary to the teachings of the Qurànic verses; e.g. Surah Ahzâb, which teaches us personal privacy and its respect. Legal minded people question whether this method will be used ethically and fairly in Pakistan, where a little latitude can be misused to the hilt to intimidate common folk. They also argue whether the new legislation will actually ease the process of capturing terrorists, stressing that it may prompt them to devise means of evading the means of probing into their exchange of communication, forcing them to hide under the radar.

The fact is that under ordinary circumstances, definitely such intrusive legislation would be considered blatant breach of privacy and obtrusive. Unfortunately, we are being faced with extraordinary circumstances, where we are forced to survive in the face of constant threats to our security. Having lost 44,888 lives including 4771 security personnel between 2003 and 2012 {according to South Asia Terrorism Portal (SATP)}; Pakistan is facing an uphill task in combating terrorism. SATP data for 2011 alone indicates that Pakistan’s continuing engagement in the War on Terror continued to produce a bloody blowback at home, with a total of at least 6,142 persons, including of 2,797 militants, 2,580 civilians and 765 Security Forces (SFs) personnel killed. The country recorded at least 476 major incidents (involving three or more killings) of terrorism in 2011, in which 4,447 persons were killed.

The treacherous face of terrorism is not only inflicting casualties of innocent citizens and damaging the property but is also distorting the image of Pakistan as a sovereign state. This tribulation of mammoth proportions demands a Herculean effort to curb the menace of terrorism to save precious lives and property. Over a period of time, the faceless and furtive enemy has also grown bolder, more determined and sophisticated in intelligence gathering and targeting high value assets of the Armed Forces, which are perceived as the major stumbling block to their heinous agenda and nefarious aims. Attacks on Pakistan Army’s General Headquarters (GHQ), Pakistan Navy’s airbase Mehran, which housed the maritime surveillance aircraft P3C Orion and assault on PAF Base Kamra to target the extremely expensive SAAB 2000 Airborne Early Warning & Control (AEW&C) System aircraft and at Peshawar, endeavor to destroy Pakistan Army’s Cobra Gunship helicopters and PAF’s fighter aircraft are ample evidence of the state of intelligence, the enemy is capable of acquiring, strategically plan sophisticated and daring attacks and execute them intrepidly. In order to defeat such a treacherous and dangerous enemy, which has taken such a huge toll of lives and property, we need to use all the weapons in our arsenal, including intelligence gathering. So far the strategy has been: “reacting to the terror attacks”. It is high time we adopted a proactive strategy and took the fight to the enemy. This would necessitate even resorting to eavesdropping and employing electronic means as well as utilizing human intelligence to nip the evil in the bud. Keeping our wits about and thwarting the enemy’s nefarious plans before they are launched, is the order of the day.

This envisages using all our faculties; the entire nation has to combat the menace collectively with firm resolve and unflinching determination. Law Enforcing Agencies (LEAs) and intelligence outfits remain vigilant and well prepared to deal with any eventuality created by heinous activities of terrorists. Their professional skills and acumen are being harshly tested by terrorists who leave no opportunity unexploited to achieve surprise as they target the most sensitive areas and assets of vital importance. On the other hand LEAs and intelligence agencies were at times getting discouraged and demoralized as their actions were being challenged through courts of law and they were questioned for the validity and legality of their decisions/actions. It seemed the initiative was being transferred from LEAs/intelligence outfits to the terrorists who often were set free by the courts for lack of evidence and other procedural penal flaws. Hence, LEAs and intelligence support units felt the grumbling pinch when they found that their sacred but hazardous mission were not being acknowledged by the law, thus rendering them helpless and incapacitated in the face of criminal terrorists.

In order to provide adequate legal cover to LEAs and intelligence agencies there was a dire need to undertake legislation which could allow the LEAs to perform their duties without any fear. The National Assembly’s unanimous decision to pass ‘Investigation for Fair Trial Bill-2012’ has been a milestone in the history of legislation, providing legal cover to the agencies concerned to tape the phone calls and watch the e-mails as part of collection of evidence through electronic means. The bill envisages that electronic material and the relevant data on the phone calls would now be permissible in the court of law. The bill sends a message to the terrorists that the entire nation was united in their efforts to bring the terrorists to books. It also asserts openly for the international community to observe and evaluate how serious Pakistan was, in fighting the menace of terrorism.(Sultan M Hali)