Since a big chunk of evidence the investigators rely on to frame charges is now internet-telecommunication-based, they do generally succeed in identifying the criminal. But in the eyes of the law that kind of evidence at best is treated by the courts as corroborative as by itself fails to stand on its own two feet. Then there is also a problem of original witnesses turning hostile during the course of proceedings, particularly in terrorism cases. The need to update the law and strengthen the hands of investigators and courts seems to have been met with passing of the Investigation for Fair Trial Bill 2012 by the National Assembly - unanimously, which means the Senate would pass it as it is and would become law very soon. But unanimous passage does not mean the Bill had smooth sailing; the Opposition rejected it at the committee stage and consented to its passage by the National Assembly only after the government accommodated its 30 of the 32 proposed amendments.
To the extent that there was the lingering demand by the investigators that electronic and digital evidence should be treated at par with what now constitutes admissible evidence it has been met. The Bill allows security agencies to collect evidence "by means of modern techniques and devices" like wire-tapping and intercepting of emails and SMS text messages to help stricter application of special acts dealing with terrorism, espionage and private armies. And if these are not broad enough spectrums for intelligence gathering the number of agencies allowed doing it makes up for the number of agencies to do it - all except the FIA are being empowered to keep us all under watch. On the face of it, we are expected to relive circa 1984. Of course, the Opposition worked hard and largely succeeded in keeping us out of the Big Brother's visual surveillance by introducing checks like preconditioning surveillance only when permitted by the court and registration of FIR only after establishing prima facie involvement of the suspect and arrest only after showing a warrant. Yes, by unanimously passing the said Bill a strong message has been delivered to the terrorists. Who can differ when it says "it is the resolve of the whole nation not to allow any attempt to disfigure the life and face of Pakistan". But why did this longest-serving parliament take so much time to put such a law in place?
But the good news that we have evolved a fool-proof legal process to ensure successful prosecution of terrorists and anti-state elements will need time to materialise in concrete terms. However what's instant is the apprehension that it has all the weaknesses that can be exploited? Firstly, it tends to violate a citizen's fundamental right to privacy - phone and email are the most commonly used tools of communication between people and someone should be hearing, recording all of it, that's unacceptable. Therefore, we wouldn't be surprised if that is challenged in the court of law. We believe that before passing it the parliament should have invited input from civil society and legal community by precipitating in a public debate. Also, there is every apprehension that the agencies' authority to conduct surveillance will be misused, both as a political tool and as being open to blackmail. After all we have the culture of snooping into private lives of others and making public intercepts of electronic communication between people. Ideally, the lawmakers should have amended the existing laws by updating them by extending the scope of evidence material. At the same time adequate steps should have been taken to ensure that witnesses don't cower under threats from the accused. And now that the Investigation for Fair Trial Act is almost a reality, the parliament should put in place an effective monitoring mechanism to see that it is not misused. The fear is that what the agencies have been doing illegally will now be legal.