ISLAMABAD/LAHORE: The Islamabad High Court (IHC) on Friday admitted a petition for regular hearing filed by six Pakistan Bar Council (PBC) members challenging the federal government’s decision to empower the Inter-Services Intelligence (ISI) to intercept calls and messages.

The petitioners — Shafqat Mehmood Chauhan, Abid Shahid Zuberi, Chaudhry Ishtiaq Ahmed Khan, Munir Ahmed Kakar, Tahir Fraz Abbasi, and Abid Saqi — argued that the notification dated July 8, 2024, is ultra vires the Constitution and the Pakistan Telecommunication (Re-Organisation) Act, 1996. They contended that wiretapping or intercepting calls could only be made after due process was followed, as prescribed under the Fair Trial Act, 2013.

Advocate Zuberi pointed out that the rules for interception and wiretapping calls have not been framed under the Telecom Act of 1996, despite the federal government’s admission of the same. He also drew parallels with a similar situation in 1998, which led to the Supreme Court’s judgement in the case of Benazir Bhutto and others vs. the President of Pakistan and others.

The court sought a report from the respondent authorities and adjourned further hearing till a date to be fixed by the registrar’s office.

Similar request referred to LHC chief justice for constitution of a larger bench

The federal government had authorised the ISI to intercept calls and messages through a statutory regulatory order (SRO) issued on July 8, citing national security concerns.

Section 54 of the Act that deals with national security states: “In the interest of national security or in the apprehension of any offence, the federal government may authorise any person or persons to intercept calls and messages or to trace calls through any telecommunication system.”

The petitioners argued that this move was a violation of citizens’ privacy and ultra vires the Constitution.

While hearing the audio leaks case, Justice Babar Sattar of the IHC had framed questions to be answered by the relevant stakeholders. The court asked if the constitution or statutory law empowers the executive, and in the present case the federal government, to record or monitor phone calls or telecommunication between private citizens, and if so, [under which] supervisory and regulatory legal regime such recording or surveillance can take place.

The federal government, apparently in response to the questions framed by Justice Sattar in the audio leaks case, empowered the ISI to “intercept calls and messages” in a bid to legalise the surveillance.

Larger bench recommended

On the other hand, a similar petition was moved before the Lahore High Court (LHC) by an MPA from Jhang, retired major Ghulam Sarwar, pleading that the impugned notification allowing the ISI to tap phone calls was a serious invasion of an individual’s privacy.

Justice Farooq Haider recommended a larger bench to hear a petition challenging the federal government’s move, noting that important legal questions had been raised in the petition. Subsequently, he sent the file to the LHC chief justice with a request to constitute a larger bench on the matter.

According to the petition, it was a settled law that the exercise of unbridled power and discretion was unconstitutional. The interception/tapping of phone calls in such an unstructured manner constituted a violation of freedom of expression and speech, the petitioner argued, adding that anything that was arbitrary or excessive would be held to be outside the parameters of reason. While arguing that the impugned notification in the name of national security conferred unchecked and arbitrary powers on the executive that were of the broadest latitude, the petitioner asked the LHC to set aside the impugned notification for being unconstitutional and also order the federal government to formulate the rules for exercising the powers delegated under Section 54 of the Telecom Act.

Published in Dawn, July 13th, 2024

Opinion

From hard to harder

From hard to harder

Instead of ‘hard state’ turning even harder, citizens deserve a state that goes soft on them in delivering democratic and development aspirations.

Editorial

Canal unrest
Updated 03 Apr, 2025

Canal unrest

With rising water scarcity in Indus system, it is crucial to move towards a consensus-driven policymaking process.
Iran-US tension
03 Apr, 2025

Iran-US tension

THE Trump administration’s threats aimed at Iran do not bode well for global peace, and unless Washington changes...
Flights to history
03 Apr, 2025

Flights to history

MOHENJODARO could have been the forgotten gold we desperately need. Instead, this 5,000-year-old well of antiquity ...
Eid amidst crises
Updated 31 Mar, 2025

Eid amidst crises

Until the Muslim world takes practical steps to end these atrocities, these besieged populations will see no joy.
Women’s rights
Updated 01 Apr, 2025

Women’s rights

Such judgements, and others directly impacting women’s rights should be given more airtime in media.
Not helping
Updated 02 Apr, 2025

Not helping

If it's committed to peace in Balochistan, the state must draw a line between militancy and legitimate protest.