ISLAMABAD: Justice Babar Sattar of the Islamabad High Court (IHC) has issued a 29-page order for the June 25 hearing on the request of Bushra Bibi in the audio leaks.
The court also issued a contempt of court notice to the chairman and members of the Pakistan Telecommunication Authority for misrepresenting themselves to the court, ordering them to file their responses to the notices within six weeks and appear in person on the next date of hearing.
The written order said the point before the court is that citizens are being illegally surveilled. The federal government and PTA have told the court that no agency has been given permission for surveillance. It is unconstitutional for telecom operators to illegally access citizens’ data.
The court order said, “The technical experts from PTA shall make a graphic representation before the court, of the manner in which the Lawful Interception Management System operates, and how data procured through such system, is stored, retrieved, used, protected, and destroyed (if at all).”
The court sought details of the correspondence between the telecom operators and the PTA. The PTA was directed to submit the report in a sealed envelope. In the order, it was written that the telecom companies should also submit a report on installing the system with the PTA. The court allowed the CDR and live location of the accused to be shared with the police as per SOPs of Ministry of Interior Affairs till the next hearing.
According to the written order, the Additional Attorney General said that he wanted to show some documents in chambers. The request for chamber hearing was rejected. However, the federal government can submit those documents in a sealed envelope.
The order said the federal government should explain in six weeks who is responsible for the access to citizens’ data and then the data leak on social media?
The order noted, “A logical deduction from the reported instances of audio leaks would, prima facie, be that there are surveillance mechanisms in place through the use of which audio recordings of Prime Ministers (irrespective of the political party he is affiliated with), of political leaders in and out of parliament, of judges and their relatives, and of relatives of politically relevant individuals and prominent businessmen are being made and subsequently released through the anonymous accounts on social media, which conversations then make their way to mainstream media.”
The order said, “As this court has formed the preliminary view that the Chairman and Members of PTA have misrepresented themselves to this court, Let a show-cause notice be issued to them under Article 204 of the Constitution read together with Section 2(b) and 6 of the Contempt of Court Ordinance, 2003, for filing reports and making misrepresentations with regard to the Lawful Intercept Management System with an attempt to divert the course of justice and prejudice the determination of subject matter in the instant petitions. They shall file their responses to the show-cause notices within a period of six weeks and appear in person on the next date of hearing.”
The court noted it has emerged, “a. The Federal government has 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.
“b. 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.
“c. A mass citizen surveillance system in the form of a Lawful Intercept Management System has been installed at the expense of Telecom Licensees on the direction of PTA at a Surveillance Center designated by PTA, for use of designated agencies, through which system north of 4 million citizens can be surveilled at any given time, providing designated agencies access to the audio and video data of citizens through the networks of Telecom Licensees.
“d. The Lawful Intercept Management System has been installed and is being operated without any backing of law, and those who are using and/or enabling the use of the Lawful Intercept Management System to surveil citizens may have rendered themselves liable to criminal liability under provisions of the Fair Trial Act, Telecom Act, Pakistan Electronic Media Crimes Act (PECA), Telegraph Act and Pakistan Penal Code.
“e. Neither the Federal Government nor any investigation or intelligence agency has admitted to undertaking surveillance, and they have further expressed their inability to identify who is undertaking illegal surveillance in Pakistan and how the fruit of such surveillance in the form of audio leaks finds its way to social media and mainstream media in Pakistan.”
The order said that it is expected that the Prime Minister will seek reports from secret agencies and place the matter before the Cabinet.
The court ordered, “..PM shall have a report filed on behalf of the Federal Government as to whether (i) surveillance is being undertaken in Pakistan in breach of provisions of the Fair Trial Act, Telecom Act and Telegraph Act, in a manner that undermines Articles 9, 14, and 19 of the Constitution as enumerated by the Supreme Court in the Benazir Bhutto, (ii) who is responsible for installation of Lawful Interception Management System in breach of provisions of the Telecom Act and the Fair Trial Act, and who is to be held liable for installing a mass surveillance system in breach of constitutional rights of citizens and statutory requirements, and (iii) who is in charge of the operation of the surveillance system and who is to be held liable for the breach of the right of privacy of citizens, whose data has been accessed through the Lawful Interception Management System and released on social media. Let such report be filed within a period of six weeks.” Further hearing of the case will be held on September 4.