IHC asks who taps phone calls

The Islamabad High Court (IHC) has raised a number of questions with regard to surveillance of private individuals and legal status of such recordings, while hearing a petition filed by son of a former chief justice against a parliamentary committee probing his alleged audios.

“Is the parliament vested with legal authority to inquire into and investigate acts of private citizens who hold no public office or whether assuming such power intrudes into the domain of the executive?” said a written order issued by an IHC bench on Thursday.

The bench comprising Justice Babar Sattar on Wednesday took up a petition filed by Najam-us-Saqib, the son of former chief Justice of Pakistan (CJP) Mian Naqib Nisar.

Najam had approached the IHC against a special committee formed by the National Assembly speaker to probe into a couple of audio clips allegedly featuring his voice.

In one of the clips, Najam could be heard telling a politician, Abuzar Chadar, that his father, Nisar, had “worked really hard” to get Chadar a ticket of the Pakistan Tehreek-e-Insaf (PTI) party.

In the second audio, Najam allegedly tells one Mian Aziz how much money he expects in return for the party ticket. On May 2, the National Assembly passed a motion demanding formation of a special committee to investigate the audios and on May 3, the NA speaker formed the committee.

After its in-camera meeting, the committee chairman, Aslam Bhootani, on May 24 told the media that the panel had summoned to its next meeting former CJP Nisar, his son Najam as well as Mian Aziz and Chadar in connection with its probe into the leaked audios.

In the petition filed on May 30, Najam requested the court to suspend proceedings of the committee and stop it from taking any punitive action. And the IHC on Wednesday suspended the notice issued by the committee to Najam and others.

In a written order, the court appointed senior lawyers Aitzaz Ahsan, Makhdoom Ali Khan, Mian Raza Rabbani and Mohsin Shahnawaz Ranjha as amici to assist the court given that the subject-matter involves interpretation of the constitutional scheme of separation of powers.

It asked as to whether the Constitution and the rules framed under it to regulate parliamentary procedure vest in the office of the National Assembly speaker the authority to constitute a special committee to investigate actions of a private citizen who is not a lawmaker or a public officeholder.

“Does the Constitution or statutory law empower the executive—in the present case the federal government—to record or surveil phone calls or telecommunication between private citizens, and if so [under which] supervisory and regulatory legal regime… such recording and surveillance can take place?
“To the extent that recording of phone calls is permitted, which public authority or agency is authorized to do so? How is the right of a citizen to liberty and privacy to be balanced against the interest of the state in recording phone calls or undertaking surveillance and which agency is vested with legal authority to undertake such balancing exercise?

“In the event that there is no legal sanction to tap phones, record telecommunication between citizens or undertake surveillance, which public authority or agency is to be held liable for such surveillance and encroachment over the right of citizens to liberty and privacy and/or release of illegally recorded private conversations to the public?” the order said.

The court noted it did not suspend the NA circular dated May 2, constituting the special committee, just because it is cognizant of the need to exercise restraint and show deference to the parliament.

The bench also ordered the NA secretary to file para-wise comments with regard to the jurisdiction vested in the office of NA speaker to constitute committees under the Constitution to investigate a phone conversation involving private citizens.

The IHC also nominated the federation through the PM Office, the interior ministry, the defence ministry, and the Pakistan Telecommunication Authority—the telecom regulator—as respondents.

“Let notices be issued to the respondents for June 19, who will file reports and para-wise comments within a period of two weeks. In the report, respondents No 1 and 5 to 8 will explain whether there exists a legal framework for recording telephone conversations between citizens.

“[If the answer is in the affirmative then] the report will detail the regulatory and oversight framework to provide for recording of phone calls or exchange of data/messages between citizens through any telecommunication means.
“These respondents will also identify the entities and agencies that have the requisite technological capability to record telephone calls and/or surveil telecommunication.

“The reports will also identify the legal mechanism for grant of permission, authorizing recording of telephone conversations between citizens and the safeguards adopted to ensure that to the extent that any phone calls are permitted by law to be recorded their confidentiality is preserved and any such recording is not leaked or used for extraneous purposes.

“Respondents No 1 and 5 to 8 will also explain if any measures have been taken by them to investigate who has undertaken or is undertaking audio recording of conversations of citizens..

 “[They will explain] how such conversations are being released to the public, given that such releases are within the knowledge of the federal government as it has constituted [an inquiry commission] to inquire into the authenticity of audio conversations that have been released/leaked,” it added.