Electronic Crimes Ordinance 2007 Requires Serious Revisions: PILDAT Legislative Forum

events_09-10-26_img_01The Prevention of Electronic Crimes Ordinance 2007 requires serious revisions before it is passed by the Parliament, a unanimous conclusion emerged out of a PILDAT Legislative Forum on the Prevention of Electronic Crimes Ordinance 2007 that was held yesterday.

The Forum included as its speakers Mr. Ejaz Khan, techno-legal expert and Partner Aqlaal Advocates, Mr. Tariq Khosa, Director General of the Federal Investigation Agency (FIA), Ms. Anusha Rehman Khan, MNA and Ms. Marvi Memon, MNA.

Speaking at the occasion, Ms. Aasiya Riaz, PILDAT Joint Director, said that PILDAT organised the forum in order to generate public debate on this important piece of legislation before it is adopted by the National Assembly. Earlier, PILDAT had prepared and issued a legislative brief on the ordinance both in Urdu and English languages which was widely circulated to the Parliament, the news media and other stakeholders.

The legislative brief has been part of PILDAT’s Legislative Development Programme and its objective was to assist parliamentarians to understand the context, objective and issues relating to the ordinance and to enable them to participate in a more informed debate and take well-considered position on the subject. Presenting an overview of PILDAT’s analysis, she said that despite the presentation of the report of the National Assembly Standing Committee on Information Technology on the Ordinance, there remain serious concerns that the offences outlined in the ordinance are vaguely defined, despite involving complex technological issues and carrying severe penalties. The offence of “cyber-terrorism,” is very broadly defined and carries a potential death sentence.

Concern has also been expressed as to the potential overlap of offences within the Ordinance itself and existing provisions contained in the PPC. She said that the PILDAT Legislative Brief, also circulated to the participants of the forum, recommends that the jurisdictional definitions of offences be amended to require a significant link to Pakistan. The offence of unauthorized interception should be amended so as to include a requirement of malicious intent and the reversed burden of proof in relation to sensitive electronic systems must be removed, etc.

She thanked active support from Ms. Anusha Rehman, MNA and members of the National Assembly Standing Committee on Information Technology for her support for background information on the ordinance and for organising the forum.

Mr. Ejaz Khan, the techno-legal expert and Partner Aqlaal Advocates, presented an overview of the existing ordinance, its provisions and their shortcomings. He said that in the context of ever increasing cyber crime, regulation was required, however, he expressed grave concerns over the existing law in terms of civil liberties, business continuity and the norms of international best practice.

Essentially he proposed a careful amendment of the Pakistan Penal Code, to ensure coverage of electronic offences in terms of existing crimes, rather than a specialist law, whilst highlighting the need for safeguards for civil liberties and fundamental rights. His main concern related to the discretionary application of normal criminal processes in cyber crimes cases, which can be dispensed with by the Federal Government.

He also drew attention to the lack of any third party protections, right to privacy or confidentiality or redress for economic damage arising from data loss or hardware damage. He proposed the use of the Budapest Convention as a model for future amendment, legislation and protection in relation to cyber crime, alongside robust capacity building of specialist knowledge in terms of the FIA’s specialist cyber crime cell.

Mr. Tariq Khosa, Director General of the FIA, spoke from an enforcement perspective. He explained the existing Special Cyber Crime Branch of the FIA and its work. He strongly defended the need for a specialist agency to investigate and prosecute this technical area of criminal law. He asserted the political independence of the FIA and gave the forum an assurance that the branch applied the Criminal Procedure Code in all cases and that there was “no chance of playing with rights” by the FIA.

Ms. Anusha Rehman, MNA, explained to the forum the role of the Standing Committee, its work in reviewing the Ordinance and the content of its report to the National Assembly that was presented in the last session. Ms. Anusha Rehman and Ms. Marvi Memon added a detailed dissent note on the committee’s report tabled in the House. She indicated that, in some respects, her views differed from other members of the Standing Committee.

She highlighted a number of major concerns with the existing Ordinance, most notably the overlap of offences with both the Pakistan Penal Code and Electronic Transactions Ordinance, and the resulting risk of multiple liability and punishment. She drew particular attention to the copy of the FIR of the Khanani and Kalia case that the Interior Minister Rehman Malik provided to her on the floor of the House in response to her specific question noting that the FIR carried reference to prosecution under three separate legislative provisions.

She raised particular concern regarding the vague definitions adopted for offences of cyber terrorism, which, in some cases, can attract the death penalty. She made clear that in her view the law must provide protection for basic human rights and freedoms and protect against possible abuse in the future, rather than placing reliance on good practice by law enforcement agencies.

She also highlighted the need for specialist expert input to the Standing Committee and Parliament, in order to ensure that Parliamentarians can adequately understand and tackle technical areas of legislation. Finally, she highlighted the critical need for public debate on such an important issue before the National Assembly passes the law in its current form during the upcoming session in November 2009.

Ms. Marvi Memon, MNA and also a member of the Standing Committee on Information Technology, made a strong plea for a public debate on the issue and cautioned that approval of the Ordinance in its current form would lead Pakistan towards “a police state.” She described the Ordinance as a law bulldozed through Parliament and the Standing Committee and her view that efforts at presenting alternatives had been blocked by Government.

She called for the business community, whose interests could be irreparably damaged, to enter the debate and expressed her view that the issue was now time-critical as the National Assembly could pass the law in its current form at any point once the National Assembly session starts on November 2, 2009. She expressed disappointment at the lack of debate on this critical issue to-date and said that if the civil society, particularly the Overseas Investors Chambers and the FPCCI, did not protect its interests by intervening now, it will be too late.

Parliamentarians are doing their job but the stakeholders must also come forward and present their reservations now, she urged. She highlighted that a revised law has been proposed by them the text of which is available at her website: at http://marvimemon.wordpress.com/category/legislation-bills-introduced/

In the ensuing discussion at the forum, that mainly included representatives from the IT business community, telecom industry, media and Parliamentarians, a number of provisions of the law and its practical use were discussed. It was highlighted by the business community, through the anecdotal evidence of their experience, that even though the FIA Director General maintained the agency will never stoop to abusing basic rights, the law was applied indiscriminately by corrupt officials.

It was highlighted that a badly drafted law can not be left to be implemented on the integrity of the implementing agency but the job of the Parliament was to ensure that no unspecific, duplicate or badly-drafted law should be passed that is liable to misuse at the stage of implementation. The industry deplores this Ordinance, many participants said, terming the ordinance as an “atrociously drafted law.” Mr. Khurram Dastgir, MNA noted that if the law violates basic human rights which are enshrined in the Constitution of Pakistan, these constitutional rights can not be left to be protected or abused on the discretion of implementers.

The session ended with a call for further public debate and expressions of disappointment that the Interior and Information Technology Ministries and Standing Committees of both the Senate and the National Assembly which chose not to participate in the forum despite invitation.

PILDAT Legislative Brief on The Prevention of Electronic Crimes Ordinance 2007 can be downloaded here