ISLAMABAD: The Islamabad High Court (IHC), Tuesday, rejected the additional attorney general’s request to hold an in-chamber hearing in the audio leaks case and declared that any action of phone tapping without a legal mechanism was illegal.
A single bench of Justice Babar Sattar heard the petitions of former first lady Bushra Bibi and former chief justice Saqib Nisar’s son Mian Najamul Saqib against their respective audio leaks.
During the hearing, Additional Attorney General (AAG) Munawar Iqbal Doggal informed the bench that the Ministry of Interior had established a Standard Operating Procedure (SOP) allowing ISI and IB to directly retrieve data from service providers.
Expressing concern over it, Justice Sattar said that an SOP issued by a section officer, rather than the appropriate authority, raises questions about its legality. He questioned the Ministry of Interior’s basis for issuing such an SOP, asking under which law it was authorised to share live location without a warrant and access data from service providers.
He emphasized that the SOP issued by a section officer does not cover the specifics of phone tapping, which is a crucial distinction. He highlighted the need to examine the legal standing of this document.
The AAG added that in the case of missing persons, the Sindh High Court (SHC) had instructed the disclosure of data to intelligence agencies. The court then questioned whether this directive from the SHC was specific to a single case or applied as a permanent measure.
The court directed the AAG to review the policy formulated in 2013 and determine if data had been acquired according to this policy’s framework. The AAG affirmed compliance.
The IHC also asked about the rationale behind the Pakistan Telecommunication Authority (PTA) issuing directives. In response, the PTA’s lawyer explained that a case before the SHC had been convened by all concerned parties, including the PTA, to devise a mechanism. This arrangement, unchallenged thereafter, evolved into the 2013 policy.
The court asked whether the PTA affirmed that it had not authorised any entity to engage in phone tapping. The lawyer confirmed saying that indeed, PTA has not granted permission for any form of phone tapping. The lawyer clarified that the PTA’s role is regulatory and does not involve surveillance activities. He added that after the Mustafa Impex case, any directive from a division is considered a decision of the federal government.
The lawyer representing Islamabad Police told the court that, to their understanding, there is no prohibition against obtaining such information. Justice Sattar then questioned police official whether they could enter someone’s residence without a warrant. The lawyer responded that their practice does not involve surveillance or recording, but rather they gather material after an incident occurs.
The court questioned whether in 11 years they had ever obtained a warrant. The lawyer replied that, in their understanding, it is not necessary to obtain a warrant to gather material after an incident.
The IHC bench also asked how they could obtain private video footage from someone’s home. The lawyer reiterated that they do not conduct surveillance and only collect material after an incident for evidentiary purposes.
The judge remarked that the Islamabad police seemed unaware of why warrants are necessary, asking if there had been no need for warrants in 11 years. He further inquired who had instructed the Inspector General not to seek warrants. It questioned whether the law enacted by Parliament was considered unnecessary, given that warrants had not been sought in 11 years.
Justice Babar commented that if a law had been made, everyone should be aware of its requirements. He added that people should be informed about how privacy is being breached. He further emphasized that this was not a matter of national security where laws could be ignored or disregarded.
The AAG requested the court to hold an in-chamber hearing to brief about details.
Justice Babar responded that if he was inquiring about terrorists. He clarified that he was only asking about the law, whether hostile agencies were monitoring judges’ chambers or the prime minister’s residence. The AAG denied this.
The bench maintained that national security was not at stake here and rejected the request for a chamber hearing.
Despite repeated requests from the AAG for a chamber hearing, Justice Babar reiterated that he was not seeking national security secrets and refused to conduct mock hearings in chambers.
Justice Babar also questioned whether rules had been established under the Telecom and Telegraph Act. He criticised how obtaining a warrant from a judge could be considered a national security threat, pointing out that Pakistan was not the only country combating terrorism. He mentioned that many countries, including the United States, had implemented laws and strategies post-9/11.
Copyright Business Recorder, 2024
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