In continuation of my previous piece on Pakistan’s proposed Cybercrimes law, we now have an amended bill being proposed in the national legislature. The secrecy being maintained around the new draft bill being considered is astonishing, given it strikes at the heart of fundamental rights of the citizens of this country.

Rights group Bolo Bhi released their initial analysis of the draft they ‘believe’ to be the one being discussed by a government led committee. The short history of this long languishing bill is aptly summarized by Bolo Bhi who believe they have obtained ‘a version’ of the bill being considered by the government thus, ‘ISPAK (Internet Service Providers Association), P@SHA (Pakistan Software Houses Association) and the Ministry of IT & Telecommunications, after consultations agreed to a stakeholder draft (please note though no civil society organization or members were privy to this). This was then sent to the Cabinet Division. From there it emerged earlier this year with modifications after which we held consultations with industry and civil society members, and technical experts. The National Assembly’s Standing Committee on IT constituted a sub-committee and since then a government led committee has been reviewing and modifying the draft,’ further adding that the version made public by them is ‘probably’ the one under consideration.

If indeed a draft is being discussed, it should be made publicly available by the government for early public scrutiny. Discussions behind closed doors of any legislation, and intent of last minute disclosure to deprive a thorough national debate on something as important as this, reeks of an intent to disenfranchise the public of its right to participate and have a say in an important national matter.

However, it is safe to assume that the draft Prevention of Electronic Crimes 2015 (PECA 2015) circulated by Bolo Bhi is the version, or very close to the version, being discussed by the government led committee looking into it.

A quick review of the new PECA 2015 reveals it to be a more draconian version of the previous one, as if that one was not frightening enough.

In my opinion, however, it is important to read PECA 2015 in the backdrop of the Fair Trial Act 2012 (FTA 2012), signed into law in February 2013, and the Protection of Pakistan Act 2014 (POPA 2014). These two, read together with the amended Anti Terrorism Act 1997 (ATA 1997), have already created an Orwellian state where the citizens’ fundamental and constitutional right to privacy has been all but rescinded. Advocate Saroop Ijaz’s review states the FTA 2012 provides for,

• “A procedure to sanctify state surveillance of citizens with impunity

• Clothes the procedure in respectability by making the Judge of the High Court the keeper of conscience.

• Clothes intelligence agencies with the power to monitor and intrude in the private space of the citizen, through secret court orders.

It is important to also consider the impact of that the Ordinance (later passed as POPA 2014) has. The Ordinance inserts Section 27-B in the Anti-Terrorism Act 1997 which reads:

“27B. Conviction solely on the basis of electronic or forensic evidence etc.- Notwithstanding anything contained in this Act or Qanun-e-Shahadat, 1984 (P.O.No.10 of 1984) or any other law for the time being in force, the conviction of an accused for an offence under this Act solely on the basis of electronic or forensic evidence or such other evidence that may have become available because of modern devices or techniques referred to in Article 164 of the Qanun-e-Shahdat, 1984 (P.O. No. 10 of 1984), shall be lawful.”

This opens the door to the widest possible abuse by state functionaries of the privacy law.

The Act essentially allows the functionary of the state to obtain a warrant in secret if, inter alia, the applicant body “has reasons to believe” that any citizen or any other person “likely to be associated” with or is “beginning to get associated with” or is in the “process of beginning to plan” or “likely to plan or attempt” a scheduled offence. Instead of following the probable cause standard, the law makers have made “reasons to believe” the standard. This makes our law draconian in nature. The warrant is to be issued by a High Court judge without any notice to the subject of such an order i.e. the subject and cover everything including audio, video, text messages, emails. Thus the Act, when read with the Anti Terrorism Act 1997 as amended by the Ordinance, is a catchall for all forms of surveillance that are imaginable. The idea is to provide a basis for complete and total control for 60 days and on the basis of mere suspicion. This is neither reasonable nor constitutional. The idea is to seek prevention of a crime before it is actually committed.”

In this backdrop of surveillance with impunity consider the PECA 2015 under discussion:

Section (7) of the proposed bill states,

‘Criminal Interference with critical infrastructure information system or data.- Whoever with malicious intent and without authorization interferes with or damages, or causes to be inferred with or damaged, any critical information system or any part thereof, or critical infrastructure data or any part thereof, shall be punished with imprisonment which may extend to seven years or with fine which may extend to five million rupees or with both.’

The bill defines the term thus:‘ “critical infrastructure information system or data” means any information system, program or data that supports or performs a function with respect to a critical infrastructure’ and ‘ “critical infrastructure” includes the infrastructures so designated by any Government in Pakistan and such other assets, systems and networks, whether physical or virtual, so vital to the State or its organs including judicature that their incapacitation or destruction may have a debilitating effect on national security, economy, public health, safety or matters related thereto.’

Clearly, ‘critical infrastructure’ is so defined that it can include surveillance and/or internet blocking softwares being deployed by the government. Hence, Section (7) potentially criminalizes circumvention of surveillance by its citizens as well as any attempts at bypassing censorship of the Internet by the government, with these ‘crimes’ punishable by upto seven years in prison.

Section (8) of the bill enhances the punishment to 14 years in prison by labeling the same ‘crimes’ as ‘cyber terrorism’ thus:

‘Cyber terrorism. –Whoever commits or threatens to commit any of the offences under sections 5 and 7 where-

(a) the use or threat is designed to coerce, intimidate, overawe or create a sense of fear, panic or insecurity in the Government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society; or

(b) the use or threat is made for the purpose or motive of advancing a religious, ethnic or sectarian cause;

shall be punished with imprisonment of either description for a term which may extend to fourteen years or with fine which may extend to fifty million rupees or with both.’

The government and its intelligence agencies are perpetually rendered ‘overawed’, ‘in fear’, ‘panicky’ and ‘insecure’ by human rights defenders, journalists and ‘NGOs’, evidenced by the constant harassment, accusations of anti-Pakistaniat, and surveillance perpetrated on them. Ironically, politicians have been a favourite target throughout Paksitan’s history.

It is astonishing, then, that it is our political parties that continue to give cover and the respectability of democratically processed legislation that continues to impinge on their and our fundamental rights. The raft of legislations mentioned above all strike at the heart of several fundamental rights of the citizens of Pakistan, from right to privacy, to freedom of expression, to freedom of conscience and security of person, to right to access information. Given unfettered surveillance and censorship by the state, and criminalization of circumvention by anyone, none of these fundamental rights remain intact.

Very important to note also is the fact that none of these laws, or the proposed PECA, propose either any safeguards against abuse of powers by the state apparatus, nor provide for penalties or punishments in case of abuse.

PECA 2015 is problematic in several other areas as well. It is hefty on empowering the state, but pays lip service only to protection of human rights and human dignity. Indeed, it undermines the Penal Code’s provisions by reducing sentences for cybercrimes against natural persons to just one year.

Under the guise of the war on terror, citizens’ fundamental rights, and the spirit of the constitution, are being systematically abrogated. And tragically, it is our democratic governments caving in to the dictates of the security apparatus of this country. Only yesterday, a handful of politicians decried the secret and summary military trials being conducted in the country only a couple of months after approving the constitution of military courts in the most undignified manner.

 The writer is a human rights worker and freelance columnist. She can be contacted at gulnbukhari@gmail.com

Twitter:@gulbukhari