Justice Umar Ata Bandial has said that covert surveillance is certainly an area which requires legislation with reference to the protection of fundamental rights of the citizens under Article 14.

He was heading a 10-judge Full Court, which on Tuesday heard identical petitions challenging the Presidential Reference against Justice Qazi Faez for allegedly not disclosing his foreign properties in wealth statements. Besides the apex court judge, Pakistan Bar Council, Supreme Court Bar Association, Bar Councils & Association of Punjab, Sindh and Balochistan and Abid Hassan Minto and IA Rehman have also challenged the Presidential Reference.

Munir A Malik, the counsel for Justice Qazi Faez, contended that in the Benazir Bhutto case, the apex court had observed that the covert surveillance of the judiciary is 'a sufficient ground to dissolve the government'.

He said that Article 14 of Constitution provides that 'dignity of man' and 'privacy of home' are inviolable rights. Telephone tapping, eavesdropping, and bugging are offences not only under the Telegraph Act and the NAB law but also under Articles 14 and 15 of Constitution, despite that bugging, eavesdropping and covert surveillance have been going on.

The counsel said to stop covert surveillance of judges and the citizens does not only require the stricture be passed, but the court also has to move against the people involved in it. The court is empowered to throw out any material gathered in this way (through surveillance). The court should not consider such evidence that violates the dignity of man and privacy of house. Therefore the reference must be quashed.

He said that privacy of Justice Isa and his family was intruded. "My client does not know in what manner he and his family members were surveilled," he added. He therefore made an inference on the basis of the facts and the development took place pre-post reference.

Surveillance might have been done through email hacking, phone tapping, chasing family members or other means, because the complainant Waheed Dogar never knew the Spanish name of the petitioner's wife.

"Intrusion to the privacy of the superior judges is devastating for the independence and integrity of the institution. You are man of steel and conviction and same is my client. It is shattering the confidence of the ordinary citizens who are at stake.

"It is difficult for a judge, who is surveilled, to muster courage and stand up. It causes irreparable damage to the confidence of the people if it is on the back of their mind that the judge before whom they are appearing is being surveilled."

He asked if there is any law that allows the surveillance in the name of national security. "There must be a law," he added. Upon the bench's query whether there is any law on the surveillance, Munir Malik replied: "Not in my knowledge." In the US if the security agencies require the surveillance of any citizen then it has to show any cause for it to the court.

The cause of surveillance has to be determined by the judiciary. He said Section 19(e) of National Accountability Ordinance, 1999 says where there is reasonable suspicion that any person is involved in or is privy to an offence under this Ordinance, the Chairman NAB may, with the prior approval in writing of the High Court concerned, direct that surveillance of that person may be carried out.

Justice Mansoor remarked that the surveillance is a broad term, following someone or fixing camera in a room is also surveillance. He asked if any such case regarding the matter is ever reported. Munir replied, "I don't know."

Malik said that on Monday last Justice Muneeb gave an observation that powers of the President and the SJC in the pre-investigation are the same. "But my stance is that it is not even in the pre-investigation," he added.

The information under Article 209 (5) of Constitution could be laid before the President or the Council. If the complaint is placed before the President then after forming an opinion he refers the matter to the SJC for further investigation and the recommendation.

The bench inquired whether under Article 210 of Constitution the SJC can summon any record regardless of the fact that confidentiality has to be maintained under the Income Tax Ordinance. (For the purpose of inquiring into any matter, the Council shall have the same power as the Supreme Court has to issue directions or orders for securing the attendance of any person or the discovery or production of any document; and any such direction or order shall be enforceable as if it had been issued by the Supreme Court.)

Munir A Malik contended that under Article 184(3) of Constitution the Supreme Court could summon any record but the SJC does not have that power, as unlike the apex court it could not strike down any law. The SJC could not rule that the confidentiality provision under the Income Tax Ordinance be struck down. It is not in the purview of the SJC to declare which law is in violation of fundament rights.The case was adjourned until today (Wednesday).