Anti-Cyber Crime Act petition quashed

The petitioner had also challenged the provisions of sections 38 and 50 of the Act that they violated Articles 13 of the Constitution over the right to be heard. He had contended that section 38 allows any application by an authority for a hearing in court to be made exparte (in absence of the adverse party).

In the judgment, however, the judges noted that matters envisaged under section 38 of the Act relate to search and seizure, disclosure of data, expedited preservation, disclosure and collection of traffic data and content data. According to them, such matters cover at investigation stage.

“Under such circumstances, we are, with due respect, unable to see any merit in the petitioners’ argument because we do not think that investigation is the final stage in determining the rights of the said individual or service provider where the said data is retrieved from,” they said.

On the contrary, the judges said, it appears to accord with reality that the said person or service provider would have time to explain and defend on the content of the said data during a trial hearing if the case is brought for trial.

“In consequence, we hold that the provision of section 38 of the Cybercrimes Act Fall within the ambit of Article 30 (2)(b) of the Constitution since it is squarely for the purpose of protecting interests of public safety and public order by reason and therefore not violate of the Constitution,” they held.

Regarding section 50 of the Act, which empowers the Director of Public Prosecutions (DPP) to compound some offences committed without due considering to the need of the suspect, the judges agreed with the petitioner that it curtails the right to be heard under Article 13 (6) (a) of the Constitution.

They noted that the actions by the DPP are given finality and not amenable to appeal if a suspect voluntarily confessed commission of the offence and such actions are given the status of the High Court order on one part, but on the other part are unique in sense that the aggrieved person could not appeal. “We find this to be an anomaly.

Exercising powers vested in this court by Article 30 (5) of the Constitution and section 13 (2) of the Basic Rights Duties and Enforcement Act, we direct the government through the Attorney General within the period of 12 months to correct the anomaly.