Patrolling the Information Beat
Momin Iftikhar
1/31/2013

 

The keen interest displayed and active participation by across the aisle legislators during passage of the ‘Fair Trial Bill’ in the National Assembly is indicative of the relevance of the need to tamper the virtually limitless freedom in the communication mediums with a degree of control. Attaining a sensitive yet practical balance in reconciling the privacy issues of individuals with the gravity of threats posed by the increasingly tech savvy terrorists and criminals of all hue must have been a dilemma of high order for the drafters. The fact that thirty amendments were incorporated in the original bill before its approval is indicative of the impact that this much needed legislation is expected to make towards empowerment of the law enforcing agencies, conduct of fair and effective trials in the courts and yet cause a minimal – and lawful – curtailment of personal freedom with a judicial oversight.

September Eleven has had a deep impact in awakening the need for adoption of unusual surveillance and law enforcement means to defeat terrorism, notwithstanding its cost effects bearing upon infringement of privacy and violation of human rights. Various phonetic subterfuges, most noticeably in US, have entered the global lexicon to camouflage unprecedented ham-handed tactics adopted by the US and Western law enforcing and intelligence agencies to gain access to wanted and potential terrorists. “Enhanced interrogation techniques” , “extraordinary rendition”, “secret detention” and acceptance of “diplomatic assurances” from complying states that allow detention and interrogation facilities where apprehended suspects can be brutally interrogated, are merely flimsy sound bytes attempting to cover the high handed tactics beyond the pale of established human rights considerations. Such an outrageous charade has been made palatable and acceptable to the public at large by a broad overarching consensus to defeat terrorism; irrespective of the collective price paid by the society. There is a tacit acceptance as well that terrorists’ freedom of action provided by super highways of electronic, cyber and digital communications needs to be effectively curtailed and requisite legislative support has been provided to support the national counter terrorism effort. The intrusive and expanding footprint of the state authority has taken an inevitable toll on the jealously guarded and well entrenched traditions of privacy. Yet this is the cost that comes with the prospects of defeating the threat of terrorism and has to be stoically accepted as such.
As Pakistan is buffeted by strong undercurrents of terrorism, there is a growing consensus that highly unusual circumstances call for unconventional response to face up to the challenge. Time and again it has happened that existing legal and judicial frame work has provide loop holes to terrorists which enable them to walk away unpunished from docks of justice despite having blood of innocents on their hands. The terrorists in Pakistan have resorted to extensive use of internet and cell communications in planning and execution of terror attacks and have generally eluded the law enforcement agencies due to absence of requisite legislation. Such is the crippling impact of terrorists’ use of cell communications that there is a blackout of cellular networks whenever a period of tension approaches and terrorist attacks are expected. The increasing use of computers and cell phones by criminals and terrorists is a double edged weapon, though, which offers a rich resource for garnering intelligence. A well articulated and systematic surveillance system can provide effective opportunities to use terrorists’ extensive use of electronic and cellular communications into a clear disadvantage for them. It ought to be remembered that even though the electronic surveillance by Police, which till now has been rather patchy and ill organized, has contributed significantly in cracking open some of the most complex criminal cases.
The bipartisan support to the “Fair Trial Bill” is a good omen but it is merely a first step in the long road leading to setting up of a well honed surveillance system that could be effectively wielded in the fight against terrorism as well as steeling the law enforcement efforts. A major first step would be the setting up of a state of the art high tech surveillance infrastructure capable of meeting the challenges posed by the enormity of the task and provide space for remaining ahead of the ingenuous tactics of the crooked minds by many a step. The system should be able to cater for the peculiar requirements of the intelligence agencies as well as the law enforcement activities by the Police. Considering the technical expertise present in the country and the availability of requisite hardware in open market, the task should not be too difficult to accomplish. The system needs to be well integrated so that the real time operations as well as data bases of respective segments of surveillance systems should be readily available for sharing in real time situations; catering for counter-terrorism operations in which the areas of activity of intelligence agencies and the Police overlap.
The exercise of judicial oversight and affiliated rules of business need to be thoughtfully dovetailed into the surveillance operations to ensure seamless interaction. The system has to be mindful that in electronic surveillance as with undercover spies, it is paramount not to reveal ongoing operations nor disclose ‘sources and methods’. It will have to be borne into mind that when the electronically garnered intelligence is used for the prosecution of criminals in the court, the sources and the techniques involved in the process remain un-compromised . A concerted effort is also needed to carry out amendments in Criminal Procedure Code and Anti Terrorism Act to bring these in sync with the crime and punishment environment ruthlessly dictated by terrorists for whom the human life has little if at all any value.
The passage of Fair Trial Bill, even if it compromises the individual privacy to an extent , is a positive development. Hopefully it will go a long way in increasing the efficacy of the intelligence and the law enforcing agencies in collecting evidence that would enable prosecution of apprehended terrorists to their well deserved ends. The fight against terror can only be won by a civilized society if the terrorists are made accountable and brought to book in line with the rule of law of the state; for if experience is any guide extra judicial means adopted to defeat the scourge of terrorism only yield short lived results.