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Pakistan: New Bill on Government Surveillance Passed by National Assembly

(Jan. 11, 2013) On December 20, 2012, the National Assembly of Pakistan passed the Investigation for Fair Trial Bill, 2012, which will regulate the surveillance and interception powers of federal law enforcement and intelligence agencies in relation to investigating terrorism-related offenses. (NA Passes Controversial “Fair Trial” Bill, DAWN.COM (Dec. 20, 2012).)

The preamble of the bill states that “existing laws neither comprehensively provide for nor specifically regulate advance[d] and modern investigative techniques such as covert surveillance and human intelligence, property interference, wire tapping and communication interception that are used extensively in other jurisdictions … ” (Investigation for Fair Trial Bill, 2012, Preamble, Senate of Pakistan website.)

The bill was passed by the lower house after a compromise was reached between the government, led by the Pakistan People’s Party, and the Opposition, the Pakistan Muslim League – Nawaz. (Raja Asghar, “Fair Trial Bill” Passed in Big Compromise, DAWN.COM (Dec. 7, 2011).) Concerns over privacy issues and the misuse and abuse of surveillance powers prompted the Opposition and some members of the coalition government to incorporate approximately 30 amendments into the bill. One amendment included restrictions on the number of agencies that could exercise powers under the bill. (Id.) Another amendment criminalizes the misuse of intercepted material by officials. (Agencies Get Sweeping Powers: National Assembly Adopts Investigation for Fair Trial Bill, BUSINESS RECORDER (Dec. 21, 2012).)

The bill requires that a warrant by a High Court judge be issued prior to the exercise of interception and surveillance powers. Under the bill, the following acts are regulated:

(a) interception and recording of telephone communication of the suspect with any person and of that person with any other person;

(b) video recording of any person, persons, premises, event, situation, etc;

(c) interception or recording or obtaining of any electronic transaction, including, but not limited to, emails, SMS, etc.;

(d) interception and confiscation of any equipment used in the communication in respect of which the warrant is issued, including, but not limited, to telephones, mobile Sims, or electronic databases belonging to the person named in the warrant;

(e) collection of evidence through any modern devices in addition to the ones mentioned;

(f) use of human intelligence;

(g) covert surveillance and property interference;

(h) access to any information or data in any form related to a transaction, communication, or its content; and

(i) any other form of surveillance or interception specified by the federal government. (Investigation for Fair Trial Bill, 2012, § 17.)

The bill regulates the application, issuance, execution, and oversight of warrants made pursuant to it. (Id. ch. 2-6.) The bill requires that prior written permission be obtained from the Minister of Interior before an application can be made to a judge for a warrant. (Id. § 7.) Moreover, subject to a request for re-issue, a warrant can only be issued for a period no longer than 60 days. (Id. § 14.) The bill also regulates the admissibility of evidence obtained under a warrant. (Id. ch. 5.) The bill requires communications and online services providers to cooperate in the execution of a warrant and also indemnifies and grants immunity to those providers from legal proceedings “for having complied” with a warrant issued under the bill. (Id. §§ 18-20.)

The bill must now be passed by the Senate and signed into law by the President in order to come into effect. (Asghar, supra.)