ISLAMABAD: The Islamabad High Court (IHC) Wednesday suspended the summons issued to former chief justice Saqib Nisar’s son Main Najamus Saqib by the National Assembly’s special committee probing his alleged audio leaks.
A single bench of Justice Babar Sattar heard the petition along with the objections raised by the IHC Registrar’s Office. The IHC bench overruled the office objections and issued notices to the respondents directing them to submit para-wise comments.
Besides this, Justice Sattar also appointed senior lawyers including Aitzaz Ahsan, Makhdoom Ali Khan, former chairman Senate Mian Raza Rabbani and advocate and parliamentarian Mohsin Shahnawaz Ranjha, as amici to assist in this matter.
Mian Najam moved the court through his counsels, Sardar Latif Khosa and Shoaib Shaheen and cited the Federation of Pakistan through the secretary Ministry of Parliamentary Affairs and the speaker National Assembly and the chairman of the Special Committee.
Justice Sattar observed that the subject matter of the petition involves the determination of the constitutional domain of the Executive and the Legislature. The scheme of our Constitution envisages separation of powers between the three pillars of the State i.e. the Parliament, the Executive, and the Judiciary. He added that this Court; therefore, finds it imperative to issue notice to the Attorney General for Pakistan under Order XXVII-A of the Code of Civil Procedure, 1908, as adjudication of the matter involves constitutional interpretation.
The IHC bench noted, “The subject-matter also involves rights of a citizen to liberty and privacy as guaranteed by Articles 9 and 14 of the Constitution. For such purpose, this Court finds that the federation through the office of the Prime Minister, Ministry of Interior, the Ministry of Defence and the Pakistan Telecommunication Authority are necessary parties that must be heard. Let the Federation through PMO, Ministry of Interior, Ministry of Defence and the Pakistan Telecommunication Authority be impleaded as respondents No.5, 6, 7 and 8, respectively. The petitioner shall file an amended memo of parties within a period of three days.”
It directed that 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 No1 and 5 to 8 will explain whether there exists a legal framework for recording of telephone conversations between citizens, and in the event that the answer is yes, 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,” said Justice Sattar.
He directed, “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 and how are such conversations being released to the public, given that such releases are within the knowledge of the Federal Government as it has constituted a High-Powered Commission of inquiry comprising senior Judges to inquire into the authenticity of audio conversations that have been released/leaked.”
The bench also directed that let secretary National Assembly Secretariat file para-wise comments and include a report with regard to the jurisdiction vested in the Office of the Speaker National Assembly to constitute committees under the Constitution and the rules regulating parliamentary procedures and the authority to constitute a special committee to investigate a phone conversation matter involving citizens, who are neither public officeholders nor members of the Parliament.
It maintained, “This Court is cognizant of the need to exercise restraint and show deference to the Parliament where it is acting within the exclusive domain carved out for it by the Constitution, which is why this Court is minded not to suspend the Circular dated 02.05.2023 constituting the Special Committee to audit, inquire and investigate the audio leaks of the petitioner.”
Justice Sattar wrote that the Court would request the Attorney General and the amici to assist on, inter alia, the following questions including is 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?
He added that does the Constitution and the rules framed under it to regulate parliamentary procedure vest in the office of the Speaker National Assembly the authority to constitute a Special Committee to investigate actions attributable to a private citizen who is not a member of Parliament or a public officeholder? and does the Constitution or statutory law empower the Executive, and in the present case the Federal Government, to record or surveil phone calls or telecommunication between private citizens, and if so the supervisory and regulatory legal regime within which such recording and surveillance can take place?
The bench said that 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? And 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?
Copyright Business Recorder, 2023