THE approval by the cabinet of a draft law on interception (Investigation for Fair Trial Bill, 2012) is a constructive move. The high acquittal rate of terrorists and other criminals is actually a verdict on the inability of the state to bring to justice those who attack it.

So far the acquittal rate has been blamed by the judiciary on faulty investigation, while investigators blame the judiciary for letting go of hardened criminals and terrorists. The real issue is that witnesses have hardly come forward in high-profile terrorist trials.

The intelligence agencies often have convincing information about the guilt of the offender but this is of no legal value in court and thus the suspect walks away. This frustrates the state apparatus which is already operating under stress. It sometimes sours relations between the courts and the executive.

This happens because the intercepts carried out by agencies and law-enforcement bodies like the FIA before FIR registration are not admissible and do not constitute lawfully collected material since there’s no governing law to control the functions and powers of the agencies.

This law should fill this gap. It should not only give lawful authority to intercept and collect admissible evidence through modern surveillance but also, in the process, prevent crime.

Although not fully highlighted, the prevention of crime does become a consequence of the operation of such laws in other jurisdictions. For example, if an agency is monitoring a telephone conversation that demonstrates the suspects are planning to strike and they are apprehended just before they do, a crime would be prevented and an act of terror averted.

Unfortunately, police in Pakistan go into action after a crime has occurred or a bomb has exploded. It is then that the FIR is registered and the police step in to investigate, collect evidence and apprehend the suspect. Thus the law-enforcement infrastructure comes into action only after the terrorists have succeeded.

The state so far has no legal framework to make use of its intelligence-gathering apparatus to prevent an act of terror or crime or to collect sufficient material to successfully convict the accused. The state has failed to keep pace with the strategy of terrorists who feel encouraged by the acquittals.

This has led to frustration on the part of police and investigating agencies, with the result that when a genuine offender is released by the courts the law-enforcement agencies sometimes turn to extrajudicial measures including killings, forced disappearances and other violations of human rights.

We can recall the extrajudicial killings — an almost unspoken strategy — during the tenure of a previous PML government in Punjab when arrested suspects faced police encounters instead of criminal trials.

It is therefore expected that after the enactment of this proposed law, the intelligence agencies and law-enforcement bodies shall refrain from extrajudicial tactics such as forced disappearances.

If parliament approves the statute then the prosecution’s work may be facilitated as they will primarily rely on intercepted material in their challans submitted in court as incriminating evidence.

In certain countries, this approach is preferred over the conventional approach of gathering witnesses. For instance, US prosecutors rely on intercepted material through a warrant of interception or surveillance obtained by an executive or a judicial authority under the Federal Intelligence Surveillance Act to argue for conviction.

Most convictions in terrorism cases, racketeering and other group crimes in the US are now based on intercepted material.

Likewise in the UK, warrants of interception and surveillance are obtained under the Regulation of Investigating Powers Act.

In India, similar interception laws are in place. The material so collected serves primarily as the evidence on which the prosecutor relies.

The use of surveillance material also brings transparency to terrorism investigation. There is less opportunity for the investigating agency to plant false evidence. The surveillance results in the genuine accused implicating himself through his own actions or words, and the likelihood of an innocent being implicated is thus reduced considerably. The government will, however, need to have in place technical measures to detect data tampering.

The draft law has a mechanism for judicial oversight as the warrant of interception and surveillance shall be issued by a sessions judge in chambers to maintain the secrecy of the process. The judge will also examine the order passed by the head of the requesting agency and the material relating to the threat of crime.

If the judge assesses that the request can adversely affect the right of privacy of an individual or a family, he can decline to issue the warrant.

The proposed law also disciplines the intelligence agencies and forces them to appear before a judicial authority and ensures they have verified the facts and have sufficient basis for interception or surveillance that can stand up to judicial scrutiny. While the objective of the judicial system of any country is to make sure that no innocent person is punished, it is also true that its success lies in making certain that the offender does not get away or defeat the system.

The debate on the draft law’s misuse is expected to continue with some valid concerns. In the US and UK, such debates have caused the judges to turn to case law that provides clearer guidelines on striking a balance between security and privacy.

To prevent the misuse of this law it is important that those who administer it are trained and made accountable through strict periodic administrative reviews. The Supreme Court will also need to arrange the training of judges who will issue such warrants so that they balance privacy rights with security concerns.

The investigators should be trained in surveillance techniques practised in the UK and US and in other countries. They should study how investigators in these places protect privacy rights while conducting surveillance.

The writer is an advocate of the Supreme Court of Pakistan and president, Research Society of International Law.

ahmersoofi@hotmail.com