Covert surveillance needs high court order: SC judges

Two Supreme Court judges have noted in the Justice Qazi Faez Isa case that covert surveillance cannot be exercised without the permission of a high court judge.

 "Even in cases of terrorism, covert surveillance cannot be exercised without the permission of an authority as high as a high court Judge, and that for obtaining such permission, the officer concerned has to make out a strong case, justifying the same," says Justice Maqbool Baqar in his note in Justice Isa case.

 "The application and report prior to its submission before the high court has to be approved by the interior minister, and all care and caution is to be exercised to ensure and demonstrate that not only the surveillance is inevitable but also that the same shall not be misused. Very rigorous and stringent conditions are attached to the permission/ warrant for surveillance so that the same may not be executed whimsically, and may not be exploited for any unrelated purposes," it adds.

Another judge, Justice Syed Mansoor Ali Shah, has noted that only law that allows surveillance of persons by the law enforcement and intelligence agencies is the Investigation for Fair Trial Act, 2013 (IFTA).

Justice Baqar said that the law also shows that lawmakers are highly conscious of the fact of how damaging intrusive and abrasive covert surveillance may prove and therefore the relevant law it-self discourages and makes it very difficult to obtain a permit for the same.

 He further noted that in a civilised democratic dispensation, where the dignity of a man and his privacy has been secured by a written Constitution inviolably, coven surveillance is an anathema, and is extremely reprehensible.

"However, because of the strong wave of terrorism that engulfed this country as a consequence of the so-called Afghan war, posing threat to our very existence, and in order to curb and control the same, it was felt necessary to allow covert surveillance but keeping in view the intrusive and abrasive nature of such an act, and in order to lay down a complete mechanism so that it be exercised very sparingly and in a well-regulated manner, leaving no room for the excessive, arbitrary or whimsical exercise of such power, a law was enacted by the name of Fair Trial Act, 2013 (the Act)."

Justice Baqar noted that the preamble to the act recognises the need to prevent our law enforcement and intelligence agencies from using such power arbitrarily.

 "In terms of the Act, the covert surveillance an only be carried under a warrant issued by a high court."In order to obtain such a warrant, the officer concerned, in terms of Section 5 of the Act, is required to prepare a report in that regard supported by relevant material, and on the basis thereof to seek approval of the federal interior minister, before making an application to the judge of the high court for issuance of surveillance warrant, whereas in terms of Section 8 of the Act, the application submitted to the high court judge, is required to be supported by an affidavit of the authorised officer, to the effect that the contents of the report and the application are true and correct and that the warrant sought shall be used only and exclusively for preventing or lawfully investigating the schedule offence or to collect evidence in support thereof, and further that the same shall neither be misused in any manner nor shall the approval of the warrant be abused to interfere or intervene in the privacy of any person."

"The fact that the ARU did not possess the resources or the technical capacity to carry out surveillance of the petitioner judge and his family and the interception of their communications, gives credence to the stance of the petitioner judge that the surveillance was carried out in connivance and in collaboration with the intelligence agencies the possibility of such happening, therefore, cannot be ruled out in the absence of any other evidence to the contrary, on the record," says justice Shah.

Published in The Express Tribune, November 6^th, 2020.