Earlier this year, the National Assembly and the Senate of Pakistan passed the Investigation for Fair Trial Act 2012 without due discussions and debate. The act has been purportedly enacted to effectively deal with scheduled offences and to regulate the powers of the law enforcement and intelligence agencies. However, the provisions of the act are such that they are violative of the principles of natural justice, the fundamental rights as enshrined in the Constitution of Pakistan, and the universally recognised principles of human rights.

Considering the law and order situation in the country and specifically in view of the external threats faced by Pakistan, there is absolutely no doubt that the intelligence agencies must be strengthened and provided all assistance and legal cover so as to ensure prevention of crimes and acts of terrorism. Without robust intelligence, no country can be successful in combating the menace of terrorism, and Pakistan is no exception. In fact, since Pakistan is facing unprecedented threats from within its own soil, it is critical that the role of intelligence agencies is strengthened and they are given powers to pre-empt and prevent acts of terrorism and other anti-state activities.

Nevertheless, such powers must be in accordance with the Constitution of Pakistan and the universally recognised principles of human rights. The Fair Trial Act 2012 basically allows the law enforcement and intelligence agencies to seek surveillance warrants against individuals whom they consider are likely to be involved in anti-state terrorist activities. However, the language of the act is broad enough to encompass a range of criminal activities.

Similarly, the burden of proof for seeking a warrant is considerably low since as long as the law enforcement agency “believes” that a person is “likely to be associated with” or “is beginning to get associated with” a scheduled offence, surveillance can be sought. This language and its potential repercussions have sent shockwaves amongst the human rights advocates across Pakistan.

The Fair Trial Act 2012 fails to give adequate protection to individuals against whom a surveillance warrant is sought. For example, the hearing on request for a warrant is held by a judge of the High Court in Chambers. This means that the hearing is not public. In addition, no record of the hearing and, more strikingly, no record of the surveillance warrant, will be kept in the court, but will be returned to the concerned department for safe custody.

Similarly, the principles of natural justice are also violated in this legislation. According to its provisions, a person can be potentially condemned unheard since a surveillance warrant, under this act, can be issued against him without even hearing his or her point of view.

To add insult to injury, there is no appeal mechanism contained within the law, wherein an individual who is under surveillance can challenge the issuance of a warrant. The utility of such appellate mechanism would be diminished even otherwise, since a person against whom surveillance warrant will be issued will not even know about it. This is the irony of it all.

The surveillance envisaged under the act includes, among others, interception and recording of telephone communication, video recording of any person, premises and events, and interception of emails and SMS. Any information collected in such a manner can thereafter be produced in the court of law. Recording of such information without informing the individual concerned is a clear violation of the basic human right of privacy.

In addition, the act violates article 9 of the constitution, which guarantees a right to life and liberty. It also violates article 10A, which provides for a right of fair trial and due process, since no opportunity of a trial is given to the accused and he or she is continuously monitored. Finally, the act also violates article 14 that is supposed to protect the dignity of man and the privacy of home. Surely, an act with such provisions cannot ensure the dignity of man. The age-old saying that “an Englishman’s house is his castle” appears to have been ignored.

One of the reasons put forward by the supporters of this legislation is that similar provisions exist in other legal systems of the world. A prime example given to this effect is that of the Patriots Act in USA. Such an argument is devoid of any logic for two reasons. First, just because a provision of law potentially violating the principles of human rights has been enacted in another legal system is not ample justification for violating the rights of the citizens of Pakistan. Second, this argument fails to recognise the criticism of the Patriots Act in the civil society and academic circles of USA, including by leading constitutional experts.

There is an additional reason why such blanket powers are more dangerous in a society like Pakistan. This is because the possibility of misuse is much higher in Pakistan as compared to other developed countries. Even the mere possibility of misusing someone’s private information can be simply disastrous and it is common knowledge that the country’s police is known for misusing its powers. Nothing will then stop the police from misusing its powers under this Act and this is a major flaw in this legislation.

It is of pivotal importance that the capability and capacity of intelligence agencies in Pakistan is strengthened and they are given powers to ensure that acts of terrorism and anti-state activities are avoided at all costs. However, in the peculiar circumstances of Pakistani society, such powers have to be regulated more minutely by the judiciary. To this end, the act could have been structured in such a manner wherein any warrants issued by the High Court judge were continuously monitored by a designated District Judge.

Similarly, before the issuance of surveillance warrants, it would have been more appropriate to require detailed documentation proving that the threat of a terrorist act is not only imminent, but is also highly likely. Lastly, and most importantly, some mechanism of a right of hearing to the person against whom a warrant is to be issued, would have made the law in accordance with principles of natural justice.

Finally, the sanctions for misuse of the powers under this act are rather mild. By building a mechanism wherein misuse of surveillance warrants is to be investigated and punished by the High Court (as compared to current procedure of departmental hearing) would have ensured that the likelihood of misuse of the powers is limited. This would have also ensured judicial accountability of the acts of departments specially when the matter involves potential breach of someone’s privacy and dignity.

Unfortunately, these were the points that should have been raised by our worthy parliamentarians. However, it is clear that those sitting in the corridors of powers neither understand nor appreciate the potential impacts of such legislation on the society as a whole. Those who do understand its repercussions keep mum for reasons best known to them. It is, therefore, no wonder that the Act was passed in haste and without paying any heed to the hue and cry raised by the civil society.

There is little doubt that this legislation suffers from certain fundamental flaws and can be potentially struck down as violative of the constitution of the Islamic Republic of Pakistan. What is more important, however, is the fact that the parliamentarians failed to perform their duties in ensuring that any such legislation is widely debated and discussed. Perhaps, our lawmakers need to be reminded of the famous words of Benjamin Franklin: “Those who would give up essential liberty to purchase a temporary safety, deserve neither liberty nor safety.”

The writer is a lawyer.