Reviewing Peca’s powers

November 18, 2019

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The writer is a lawyer.
The writer is a lawyer.

THE Prevention of Electronic Crimes Act, 2016, was being debated in parliament as a bill, concerns from various corners were expressed over the impact and likely misuses of the proposed law. The parliamentary committees, in order to address these concerns, held public hearings on the proposed law, and further safeguards were incorporated in the law to address these concerns. Adherence to the safeguards provided in Peca is essential not only for legal reasons but also keeping in view the widespread use and penetration of digital technology in society. This piece of writing is an attempt to highlight some of the relevant provisions of Peca and the latter’s relation with other laws that appear to be ignored during implementation of the law.

As Peca’s preamble denotes, it is a special law for prevention, investigation, prosecution and trial of cybercrimes. The scheme of the law is that Chapter I provides the short title, Chapter II defines offences and punishments, Chapter III deals with the establishment of an investigation agency, its powers and limitations, Chapter IV deals with international cooperation, Chapter V relates to prosecution, trial, appeal and powers of the court, Chapter VI is about preventive measures and Chapter VII deals with Peca’s relation with other laws and rule-making powers. The federal government has formulated investigation rules under the Peca in 2018.

It is observed that FIA being the investigation agency designated under Section 29 of the Peca invokes the provisions of the FIA Act, 1974, for conducting inquiries in relation to offences defined under Peca that may not be correct. Pertinently, under Section 3 of the FIA Act, FIA is mandated to investigate only such offences that are in the Schedule of the FIA Act and have a nexus with the federal government.

The offences defined under Peca are not scheduled offences of the FIA Act; rather, FIA is designated as an investigation agency under Peca and therefore, has to conduct itself in accordance with the provisions of Peca which contains detailed provisions with regard to cognisance, investigation and trial of offences. This view is also fortified by the Supreme Court judgment in the Director General FIA vs Kamran Iqbal case. Wherever Peca is silent, the procedure provided under the Code of Criminal Procedure, 1898 (CrPC) is to be followed.

The cybercrime law does not confer any powers upon FIA to initiate inquiries on its own.

As far as initiation of an inquiry by the FIA in relation to the offences under Peca is concerned, the cybercrime law does not confer any powers upon FIA to initiate inquiries on its own. Under Section 43 of Peca, all offences except those under sections 10 (cyberterrorism), 21 (sexual harassment) and 22 (child pornography) are non-cognisable, compoundable and bailable. Whereas offences under Section 17 (unauthorised issuance of Sim cards) is cognisable only upon a complaint by the Pakistan Telecommunication Authority.

Under Section 155 of the CrPC read with rule 7 (5) of the Peca Investigation Rules, 2018, FIA has to seek permission from the magistrate prior to initiation of investigation in a non-cognisable offence. A magistrate while passing any order (regardless of whether he is acting in an administrative or a judicial capacity) has to act judiciously ie the order has to be reasoned and must show the application of the judicial mind as held by the Supreme Court:

“The impugned order does not show even a single word indicative of the fact of application of mind of the said Magistrate. He endorsed the release of the accused just because it was requested by the police. This act on the part of the Magistrate is against the judicial norms. His job was to competently supervise the investigation and he was not to become a Yes Man of the police. Therefore, it is declared that the impugned order of the Magistrate is bad in law and devoid of legal sanctity.”

For cognisable offences, rule 7 (4) of the PECA Investigation Rules states that the FIA’s circle-in-charge, after seeking legal opinion and approval of the concerned additional director of FIA, shall order registration of the case.

Pertinently, the limits and extent of search and seizure powers are also covered in the law. Under Section 33 of Peca, the investigation agency must obtain warrants from the court prior to any search or seizure as a general rule. As the cybercrime law provides the procedure for search and seizures, the relevant provisions of the CrPC are not applicable to that extent. Moreover, Peca also requires the investigation agency’s officers to act responsibly while dealing with the seized data as any breach of confidentiality of the seized data by the authorised officer is an offence under Section 41 of Peca.

In order to ensure proper judicial oversight and provide a remedy against “any order or judgement” passed by a Court, a remedy of appeal is provided under Section 47 of Peca. The latter section is very broad as compared to the provisions relating to appeal in the CrPC. under which no appeal against an order or judgement of a criminal court lies as a general rule.

Considering the technical nature of cybercrimes, the courts are also empowered to appoint amicus curiae or seek independent expert opinion on any matter connected with a pending case under Section 46 of the electronic crimes law. Peca also envisages the establishment of a forensic laboratory independent of the investigation agency under Section 40. However, an independent forensics laboratory is yet to be established by the federal government.

In view of the above, it may be safe to conclude that the cybercrime law relies heavily on the supervision of the investigation agency by the learned designated courts, and, therefore, it may be essential for these courts to ensure adherence to the provisions of Peca in true spirit and follow the principles of natural justice in the light of the judgements of the honourable Supreme Court.

The writer is a lawyer.

nasir.ayyaz@gmail.com

Published in Dawn, November 18th, 2019