Govt challenges IHC’s leaks case order

Legal battle escalates over citizen surveillance system legality

ISLAMABAD:

The federal government has challenged the Islamabad High Court’s (IHC) interim order seeking a response from the prime minister on installing a mass surveillance system, stating that it breaches the constitutional rights of citizens.

Instead of waiting for a final order, the government has approached the Supreme Court against the June 25 order, passed by IHC Justice Babar Sattar, who is hearing a case related to the leaking of alleged telephonic conversations of private individuals.

Former prime minister Imran Khan’s spouse, Bushra Bibi, and former chief justice of Pakistan Saqib Nisar’s son, Najamus Saqib, filed separate petitions in the IHC last year against the illegal recording of their phone calls.

In the alleged phone call, Bushra Bibi could be heard asking a PTI leader to sell some watches that Imran Khan received as gifts during his term as the PM. Najamus Saqib was allegedly asking a politician to give him money in exchange for a PTI party ticket for the election.

The National Assembly later started proceedings to investigate the leaked audio featuring Saqib, and a special parliamentary committee subsequently summoned him along with others mentioned in the audios.

In his petition, Najamus Saqib requested the IHC to suspend the NA committee’s notice. He also asked the IHC to declare that recording private conversations of individuals, storing them, and using them in any manner violated the citizens’ inalienable and fundamental rights under Articles 4, 9, 14, and 19 of the Constitution.

In its written order, issued after the June 25 hearing, the IHC noted that the federal government had granted no permission under the Telegraph Act or the Telecom Act to any agency—security or intelligence—or person to record audio calls or surveil citizens.

“The federal government, as well as law enforcement and intelligence agencies across Pakistan, have never once sought a warrant for surveillance under provisions of the Fair Trial Act.

“[However,] a mass citizen surveillance system in the form of a Lawful Intercept Management System has been installed at the expense of Telecom Licensees [companies] on the direction of the PTA [Pakistan Telecommunication Authority] at a Surveillance Center designated by the PTA, for use by designated agencies,” it said.

The IHC also issued show-cause notices to the PTA chairman and its members for misrepresenting facts regarding the Lawful Intercept Management System in “an attempt to divert the course of justice.” “They shall file their responses to the show-cause notices within six weeks and appear in person on the next hearing date—September 4,” it added.

In its appeal filed in the SC, the government contended that alleged audio conversations of Najamus Saqib regarding managing a party ticket for contesting the election of a provincial assembly seat in exchange for monetary consideration became viral on social media and electronic media.

It said the NA speaker took notice of the alleged audios and constituted a special committee on May 2, 2023, to audit, inquire, and investigate the leaks. During the pendency of the petition, the National Assembly was dissolved on August 9, 2023.

“Thereby the said special committee ceased to function/exist as envisaged under Rules 253 of the rules of procedure and conduct of business in National Assembly, 2007, which provides that ‘on the dissolution of Assembly, all pending business shall lapse.’

“Circular dated 02-05-2023 and notice dated 25-05-2023 issued by the secretary committee became ineffective on the expiry of tenure of the National Assembly on 09th August, 2023.

“Thus, there is no live issue to be adjudicated upon by the Hon’ble Islamabad High Court regarding the first prayer clause, and thereby the petition to that extent became infructuous,” it said.

Regarding the second prayer in Najamus Saqib’s petition, the appeal said recording private conversations has already been declared an offence under section 19 of the Prevention of Electronic Crimes Act, 2016.

“Unauthorized recording of private conversations has been made an offence; there was no occasion for the IHC to make such a declaration when such an act has already been criminalized by the legislature,” it said.

It said no live issue/grievance is now left to be adjudicated in the petition. Nonetheless, the IHC is exercising suo motu jurisdiction and is carrying out proceedings beyond the scope of the titled petition. “It is settled law that the high courts do not have suo motu jurisdiction under Article 199 of the Constitution,” it added.