Islamabad High Court’s (IHC) Justice Babar Sattar has said that prima facie no state official was authorised to surveil citizens and anyone doing so or aiding such an endeavour would be “liable for offences”.

The observation came in a written court order issued today (Thursday) for yesterday’s hearing on a case in connection with petitions filed last year by ex-premier Imran Khan’s spouse Bushra Bibi and Najam Saqib, son of former chief justice of Pakistan Saqib Nisar, against alleged audio leaks.

The IHC judge had earlier dismissed multiple petitions from different authorities requesting that he recuse himself from the case.

The detailed court verdict of the April 29 hearing had said there was a “growing abhorrent practice” of using recusal requests accompanied by efforts to “scandalise the court and intimidate the judge into disqualifying himself/herself from hearing a matter, in which a party to the proceedings suspects that the outcome might not be to its liking”.

In a later hearing, he had issued contempt notices to the director generals (DGs) of the Federal Investigation Agency (FIA) and the Intelligence Bureau (IB) as well as the Pakistan Telecommunication Authority (PTA) chairman and members for filing “collusive applications” seeking his recusal.

The court order for Wednesday’s hearing, a copy of which is available with Dawn.com, said that the additional attorney general’s responses showed that “no entity or agency of the country has been authorised to undertake surveillance or undertake legal interception of telephone calls or telecom data.”

“It appears prima facie that no official of the executive/federal government, intelligence agency or police is authorised to undertake surveillance of the citizens of Pakistan. To the extent that any employee of the government or investigation or intelligence agency is undertaking surveillance and/or telecom companies and service providers are affording their facilities to facilitate surveillance, all such individuals are liable for offences under provisions of the Telegraph Act, the Telecommunication Act, the Fair Trial Act and Peca.

“Any such unauthorised surveillance would also be in breach of fundamental rights of citizens guaranteed by Articles 9, 10A, 14 and 19 of the Constitution read with Article 4 and would cause irreparable harm to the liberty, dignity and privacy of the citizens being surveilled.

Till the next date of hearing the intelligence agencies, including, inter alia, the Inter Services Intelligence and IB, and police authorities will not surveil any citizens, except in accordance with requirements of the Fair Trial Act and warrants duly issued by a judge of the high court, and neither PTA nor the telecom companies shall authorise the use of their services or equipment for purposes of any surveillance or interception of phone calls or data,“ the order reads.

The judge also ordered the federal government to file reports about requests made under various legal provisions for the issuance of warrants allowing surveillance activities.

“The federal government will also file a report stating whether any phone tapping has taken place since the entry into force of the Fair Trial Act, especially in the context of the press reports stating that ISI and IB acknowledged that they undertook phone tapping of thousands of citizens of Pakistan in 2015,” the judge said.

He also ordered the defence, interior and law ministries to file reports on whether phone tapping has occurred since the enactment and entering into force of the Fair Trial Act.

Justice Sattar also ordered the ISI, IB, intelligence agencies of the military, navy and air force, along with the Islamabad police chief, to file individual reports on whether they discharged their statutory obligation to appoint an authorised officer in terms of Section 4 of the Fair Trial Act and complied with the act’s requirements in seeking approval for surveillance.

“PTA shall file a report stating whether any SOPs or instructions have been issued to telecom operators to facilitate lawful interference and/or share telecom data with anyone in breach of provisions of the Fair Trial Act. If so, the report will accompany the SOPs or instructions issued along with an explanation regarding the legal authority under which they have been issued.”

The judge directed that the reports be filed by June 14 for perusal and adjourned the hearing to June 25.

The hearing

At the outset of the hearing, Justice Sattar asked Additional Attorney General (AAG) Munawar Iqbal Duggal whether the PTA had submitted its response, to which he replied that it could not be filed to Tuesday’s public holiday.

Responding to the judge’s query on what laws allow the recording of citizens’ phone calls, Duggal said the PTA was empowered to record conversations under Section 54 (national security) of the Pakistan Telecommunication (Re-organisation) Act, 1996.

The AAG asserted that the surveillance was done under a “legal framework”.

Justice Sattar asked the question again, ordering Duggal to answer “formally, not verbally”. “Tell me under which laws and sections you are performing surveillance. Who gave you the authority to record people’s phone calls?”

The AAG then requested additional time to submit a response, to which the judge said, “These petitions were filed in 2023. How much more time do you need?

“’According to you, no one was allowed to tap mobile phones. If you back off from this stance, there will be consequences,” Justice Sattar warned the AAG.

He observed, “The law says that the federal government can grant permission, but you said it has not been granted. The Prime Minister’s Office (PMO), the PTA and the interior and defence ministries have said no one had been allowed to do so then how as it permitted today?”

Here, the AAG again requested additional time again, at which Justice Sattar expressed his dismay: “Did you not know there was a case fixed today? These petitions have been sub judice for a year.

“If the federal government would lie in court, how will matters proceed ahead?” the IHC judge asked.

Upon Justice Sattar highlighting that previous reports submitted by various institutions, including the PMO, stated that “no one was allowed legal interception”, AAG Duggal clarified that the responses pertained to the petitioners in the audio leaks case.

The judge then asked Duggal to read the relevant sections of the Telegraph Act 1885. He observed: “Illegal surveillance is an offence punishable by law.”

The judge noted that the court had taken the federal government’s response seriously while the PTA had said that it was not being permitted to record calls.

When asked if surveillance had been “authorised” at some point and under what rule if so, the AAG replied: “If there are no rules in this regard, they should be made.” The judge in turn asked who would make the rules and under which institution.

Justice Sattar noted that according to the law, the Inter-Services Intelligence (ISI) and Military Intelligence (MI) DGs and other grade-20 officers were to be notified, who would then file an application seeking permission for surveillance.

The next step comprised a government official allowing surveillance after reviewing supporting material, which would then finally be approved by the court, the judge added. “Privacy has also been considered in this law”, he observed.

During the hearing, the judge also inquired if a court’s permission was ever sought under the said laws for “someone’s [call] recordings in secret”. “Phone recording and its provision without court permission is punishable,” the judge asserted.

He then asked if the PTA’s conditions for granting a license included the said conditions or if the authority had constituted any policy for the same. “Was this law implemented in the past year?” the judge asked.

Justice Sattar further asked Duggal what action against unlawful telephone recordings. “Did you investigate how audio leaks go viral on social media?” he asked.

The judge noted that if anything was uploaded to social media, it could be traced through the IP address. “We told the FIA and other institutions to track [the leaks] and tell [us their source but] they said they did not have the capability to do so.

“This is the institutions’ failure then,” Justice Sattar observed.

He further asked why the police and the FIA could not yet file first information reports in the case: “If there has been a crime in the country, would you wait for someone to come and complaint to initiate the investigations?”

At one point, AAG Duggal said a review committee should be formed to authorise phone surveillance. “This law has been in place for 11 years [but] no committee,” the judge said, wondering the reason for the committee’s absence. Duggal again said he would answer once he had asked the relevant institutions about it.

The AAG then said: “I should add a few things; intelligence [agency] officials are also present here [in the courtroom]. Justice Sattar quipped, “No worries. Don’t shy away from intelligence officials; they are everywhere.”

At this point, the FIA’s additional director of cybercrime appeared before the court and informed that a letter had been written to social media platforms and their response was awaited. “What will you do if the response does not come for another 10 years?” the judge asked.

The FIA official answered that an inquiry was ongoing on the matter.

Justice Sattar then ordered AAG Duggal to take instructions from the federal government on the matter and to submit answers to the court’s questions regarding surveillance rules and regulations.

He also summoned a record from the federal government of the statistics of those whose calls had been recorded secretly as well as sought a response on what laws empowered intelligence agencies to do so.

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