The Islamabad High Court on Thursday observed that apparently no individual, entity or agency was authorised by the federal government to intercept calls, messages as well as to conduct surveillance of the citizens and carrying out or aiding this act was a punishable offence.
“Doing so without authorisation is an offence punishable with fine and a jail term under the Telegraph Act, the Telecommunication Act, the Fair Trial Act and PECA [Prevention of Electronic Crimes Act],” read an order authored by Justice Babar Sattar in connection with the pleas filed last year by PTI founding chairman Imran Khan’s wife Bushra Bibi and Najam Saqib, son of former chief justice of Pakistan Saqib Nisar, against their alleged audio leaks.
“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 [under surveillance].”
The order further stated that till the next date of hearing, the intelligence agencies, including “the ISI [Inter-Services Intelligence] and IB [Intelligence Bureau], 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”.
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The court also restricted the Pakistan Telecommunication Authority (PTA) or any telecom company to authorise the use of their services or equipment for any “surveillance or interception of phone calls or data” till the next date of hearing.
“The federal government will file appropriate reports for purposes of Section 5 of the Telegraph Act, Section 54 of the Telecommunication Act, and provisions of the Fair Trial Act (explaining the manner in which provisions of the Fair Trial Act have been given effect) providing details of the requests that have been made under provisions of the Fair Trial Act to the relevant ministers and the courts for [the] issuance of warrants since the law entered into force in the year 2013.”
The court also ordered the federal government to file a report stating whether any phone tapping had taken place since the Fair Trial Act came into force, 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 Directorate General ISI, the three service intelligence agencies, IB and the Inspector General Police ICT [Islamabad Capital Territory], who are defined as ‘applicant’ under Section 3(a) of the Fair Trial Act, will file individual reports stating whether they have discharged their statutory obligation to appoint an authorised officer in terms of
Section 4 of the Fair Trial Act and have complied with the requirements of the said Act in seeking approval for surveillance.”
The court instructed the PTA to file a report stating whether or not any standard operating procedures or instructions had been issued to telecom operators to facilitate “lawful interference” or share their customers’ data with anyone in breach of the provisions of the Fair Trial Act.
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