Phone tapping legal or illegal?

ISLAMABAD: Every day, a new audio recording of judges is posted on social media, but no action has been taken to stop such phone tapping. Is it legal to wiretap someone’s phone?

According to a review of the judicial record and discussions with legal experts, there is no specialised law in Pakistan that controls or oversees telephone tapping. The Pakistan Supreme Court had ruled that it was a violation of the Constitution and fundamental rights. Though there are provisions for telephone tapping under the Telegram Act and PECA Act 2016, the 1997 Supreme Court decision had specifically requested legislation for telephone tapping.

The Supreme Court of Pakistan had addressed the telephone tapping issue in constitutional petitions 58 and 59 of 1996 in Benazir Bhutto and Others Vs. Federation of Pakistan. A seven-member bench of the Supreme Court, comprising Chief Justice Sajjad Ali Shah, Justice Saleem Akhtar, Justice Fazal Ilahi Khan, Justice Irshad Hasan Khan, Justice Raja Afrasiab Khan, Justice Munawwar Ahmad Mirza, and Justice Zia Mahmood Mirza, had heard the case.

The petitions were filed after the dissolution of the assembly by then-president Farooq Khan Leghari. One of the grounds listed for the dissolution of the assembly in November 1996 was the telephone tapping of judges of the superior courts, politicians, military personnel and civilian officials. It was claimed that the transcripts of audio recordings of the phone calls were sent regularly to then-prime minister Benazir Bhutto. Benazir Bhutto had herself also claimed to be a victim of telephone tapping.

The seven-member bench on January 29, 1997, had declared the verdict and upheld the presidential order dissolving the assembly. In its verdict, the court had observed that there was no basis in law for carrying out the phone-tapping and eavesdropping techniques. According to the judgment, the entire exercise of telephone tapping violated the fundamental right to privacy protected by Article 14.

The judgment had further noted that Article 14 protected the dignity of an individual and was attached to their privacy, and an intrusion into an individual’s privacy is an injury to their dignity. It was also held in the judgment that to preserve the dignity of an individual, their privacy would have to be protected from unlawful intrusion.

The court had ruled that there would be no law in the future that authorised and/or regulated these techniques. The court had directed that, in the absence of the law, permission from the court or a committee established by it would have to be obtained if such tasks were required to be carried out.

Whether the courts take any action against such telephone tapping or not, it is clear from the judgment that such acts are unconstitutional and violative of the fundamental rights guaranteed under the Constitution.

Former president of the Supreme Court Bar Association (SCBA), Barrister Syed Ali Zafar, while talking to The News, said there are several provisions in the Telegram Act as well as in the Prevention of Electronic Crimes Act (PECA) 2016. However, under the present circumstances, it is really difficult to determine who is tapping the telephone calls.

With the emergence of social media, it is difficult to hold anyone responsible for any such act, such as tapping of telephone calls. This is one of the reasons the judges of superior judiciary are not taking any action against the recent audio leaks, he said.

Speaking about the audio leaks of the judges, Barrister Ali Zafar said: “If the genuineness of the audio leaks is proven, then it might cause trouble for the sitting judges. In the past, there have been precedents when judges had to resign because of audio leaks. Justice Rashid Aziz Khan had to voluntarily resign as judge of the Supreme Court after the audio leaks of Justice Malik Qayyum, who also resigned because of the audio leaks.”