May 27, 2018

Federal Investigative Agency’s request to make offences in electronic crimes act non-bailable, unjustified: digital rights activists

ISLAMABAD: Legal experts express concern at the FIA proposal to make seven offences under cybercrime act cognizable and non-bailable.

On Monday, FIA submitted a report to the National Assembly on PECA’s implementation under section 57 of PECA. According to the report, FIA proposed to make seven offences cognizable and non-bailable including access, modification, interference , deletion to critical infrastructure, information system or data (Sections 6,7 & 8), electronic forgery (Section 13), electronic fraud (Section 14), unauthorized issuance of SIM (Section 17), tampering of electronic equipment (Section 18), cyberstalking (Section 24) and spoofing (Section 26).

However, Shmyla Khan from Digital Rights Foundation believes that FIA’s proposal is an attempt to bypass due process.

While exclusively talking to Digital Rights Monitor, she said:

“The fact that the FIA was able to register only 132 cases out of a total number of 7992 complaints is symptomatic of a larger issue of incompetent investigation and lack of capacity, than criminal procedural requirements. Furthermore, if the FIA wants to make a case for expanding its powers, it needs to justify that offences that are already cognizable and non-bailable were successfully prosecuted and speedily investigated, i.e. for sections 10 (cyber terrorism), 21 (offences against modesty of a nature person and minor) and 22 (child pornography). As per Digital Rights Foundation’s assessments, the performance of the FIA has not been markedly better for these three offences.”

She also feared that making the aforementioned offences cognizable and non-bailable was equivalent to awarding undue powers to FIA and reducing accountability. 

“From a human rights perspective, there need to be safeguards in place to ensure that the law enforcement agencies and courts do not abuse powers to arrest and withhold bail. By making an offence non-cognizable, the LEAs are accountable to the courts and have to furnish cogent reasons for arresting a defendant. Thus, the FIA’s current proposal will further increase its powers and reduce accountability. These powers can only be justified in instances of exceptional crimes, which is not the case in the proposals made by the FIA.”

On the other, Aleena Alavi was of the view that certain crimes of critical nature could be apprehended through Computer Emergency Response Teams rather than making them cognizable and non-bailable.

“As far as making the sections relating to critical infrastructures cognizable is concerned, it might make sense as any sort of cyber attack or interference with the data to the critical infrastructures requires immediate attention and a strategic approach to countermeasures in order to limit the damage or loss to such critical infrastructure. Therefore, such offences could also be made non-bailable considering the severity of the offence as the accused has targeted one of the State’s critical infrastructures.  However, this would only be beneficial if the law is applied properly and not misused.  It is interesting to note that Section 49 of the law already provides for a computer emergency response team that could respond to any threat or attack against a critical infrastructure and hence the power to take cognizance and respond in such cases lies with the computer emergency response team rather than the ordinary Investigation Officers of FIA. Currently, they do not have the capacity or training to respond to such threats or attacks either.  Unfortunately, as the computer emergency response team has not been constituted as yet there lies a gap here. Therefore, I believe that the Federal Government should focus on constituting the response team as per Section 49 of the Act.”

She also pointed out that the capacity issues of FIA should be addressed before making them non-bailable and cognizable.

“FIA needs to first strengthen their investigation process and remain under the supervision of the court before demanding all such sections to be non-cognizable and non-bailable. In my experience, the trial takes time and the FIA has not been able to prosecute these cases successfully even where the cognizable sections were involved. Therefore, until the time the investigation is not complete and enough evidence is not produced before the judge, it is not fair to keep an accused in the judicial custody for such offences. The accused also has the right to fair trial and these sections can probably guarantee that there is no human rights violation or abuse of power by the authority.”

It is to be noted that the debate on this report has yet to take place in parliament.

Written by

Talal Raza is a Program Manager at Media Matters for Democracy. He has worked with renowned media organizations and NGOs including Geo News, The Nation, United States Institute of Peace and Privacy International.

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