LEGAL AND TECHNICAL OBSTACLES IN RECRODING EVIDENCE THROUGH VIDEO LINK UNDER ANTI TERRORISM LATEST AMENDMENT

Edward Snowden in his recent interview with Guardian in Moscow,said, "If we confess something to our priest inside a church that would be private, but is it any different if we send our pastor a private email confessing a crisis that we have in our life?"

Whenever we talk about our government, we feel depressed, not because of our pessimism but due to nefarious deeds of the people in power. They have their own standards to measure their progress irrespective of the consequences of their acts. We live in a third world country and face the world greatest threat and enemy in form of Terrorism which is present in our streets, markets, courts, hospitals, police stations, schools and every public place.

Many military operations had been carried out besides a number of legislations to support the law enforcement agencies and to give tough time to criminals but we could never come up with something consistent with our system to deal with these hardened criminals neither strive to develop a system consistent with these laws. Always looking for speedy solutions with overnight results.

Recently on 6^th June 2014 our National Assembly of Pakistan passed a bill containing amendments in the existing anti terrorism act 1997 which focused on recording of evidence in anti terrorism cases through video link. The basic purpose of this amendment can be either its cost effectiveness or protection of the witnesses and to minimize the security threats. Cost effectiveness means if a person is sitting abroad one can record his testimony through videoconferencing instead to make him travel all the way spending hefty amount just to record his version.

First of all we need to examine the reason for introducing such amendment in Pakistan judicial system. Such an amendment is first of its kind in Pakistan Judicial system. This amendment is introduced but whether its legal consequences and technical obstacles were taken into consideration is a question mark. The exposure and experience of our judges is not compatible with such an amendment neither amendment is compatible with our judiciary training. We must take measures to train our judiciary with the latest technologies to make them properly judge and administer the trial in order to fight crime of every form. We are still waiting for any such policy to be implemented. 

As criminal lawyer, jail trials which are supposed to be conducted in Jail for sensitive and dangerous prisoners are the main cause for this amendment. In routine whenever there is order for jail trial of a prisoner, the judges along with their staff besides the counsels of both parties have to come to jail for jail trial. The basic phenomenon is to avoid the movement of the prisoner. That’s why the amendment is made in only ATA 1997 not in any civil or criminal procedural law which clearly envisages the domain of its effectiveness. Besides that the protection of the prosecution witnesses is another reason for introducing such technology in Pakistan judicial system.

The amendment referring to a video link means use of interactive telecommunications technologies for witness testimony via simultaneous two-way video and audio transmissions. This technology allows for a witness to testify from a room adjoining the courtroom via closed-circuit television or from a distant or undisclosed location through an audio-visual link. In the courtroom setting, a judge, the defendant, the defence counsel and the prosecutor can ask questions of the witness and see and hear the witness’ answers and impressions in real time transmission. Videoconferencing equipment can permit the concurrent transmission of computer images, such as documents so that video can be displayed on one screen and the computer data on another. In other words, a remote witness can be seen on a big screen while the documents being discussed by the witnesses can be visible (to a judge or jury) on screen monitors.

Internationally this technology is being used by international criminal tribunals such as International criminal court, the international criminal tribunal for Rawanda, the International Criminal Tribunal for the former Yugoslavia, the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia. Similarly many countries have already deployed this system in their courts but to a limited extend.

We should never underestimate the powers who are always active against our national security and there is quite probability that our databases containing judicial data will also be compromised in the same manner as Edward snowden, the former NSA-US contractor,  disclosed in the past.

One thing is very important that when we talk about Anti Terrorism cases we talk about criminal matters involving national security in one way or other. Therefore we need to be extra careful from the recent disclosure of NSA whistle blower Edward snowden who disclosed that how much of Pakistan data was screened without the knowledge and authorization of Pakistan Government. According to his figures Pakistan was second country after Iran whose intelligence was compromised on a mass level.  Are we really equipped enough to make sure the security of our interactive telecommunication technology because this could be something more dangerous and risky as compared to manual system of recording testimonies if the telecommunication lines are compromised.

Legally speaking Pakistan need to work a lot on legal side of this amendment as we are directly hitting section 353 of Criminal Procedure code. Accused presence will be virtual through video link but will be regarded as physical presence but can the judge see his emotions or vice versa, can the accused counsel discuss anything in private with his client? Furthermore who will digitally sign the recorded evidence? How can we make sure that the recorded evidence will not be manipulated? Are we planning for any secure backups of these recordings? We need to draft proper rules in detail which will define the minimum standard of technical details for establishing this videoconferencing system. And also the procedure for recording any such testimony through video link. Who and how this system will be managed and where the backup and recording of videos will be available and whether it will be available for parties or public or not.

On one side we are addressing the security of our witnesses and on the other side we are making a video film which will show their picture along with their statement making them more vulnerable to security threats if the recorded video film is not secured. 

Laws are said to represent the mindset of the state body and their implementation show the physical strength of the state body. No doubt we have big holes in our judicial system but this effort is appraisable. The alarming obstacles must not be ignored before bringing the system alive. It is good gesture to bring the technology into life and to feel its power but never to forget that “with great power, comes great responsibility”.