IHC restrains agencies from carrying out surveillance of citizens without court warrant

ISLAMABAD: The Islamabad High Court (IHC) has restrained the intelligence agencies, including the Inter-Services Intelligence (ISI) and Intelligence Bureau (IB), and police authorities from conducting surveillance of citizens, except in accordance with requirements of the Fair Trial Act and warrants duly issued by a judge of the high court.

The high court ordered that neither the Pakistan Telecommunication Authority nor the telecommunication companies would authorise the use of their services or equipment for purposes of any surveillance or interception of phone calls or data.

The direction came on petitions filed by Bushra Bibi, wife of former prime minister Imran Khan, and Najam Saqib, son of former chief justice Saqib Nisar, against their audio leaks.

Issuing orders on the petition, a single bench of the IHC comprising Justice Babar Sattar observed that it appeared from the reports filed by the federal government, Pakistan Telecommunication Authority (PTA) and intelligence agencies, as well as arguments presented by lawyers that no authorisation had been granted by the federal government under Section 5 of the Telegraph Act and/or Section 54 of the Telecommunication Act to authorise any individual, entity or agency to intercept calls, messages and do surveillance of the citizens of Pakistan.

The IHC observed that the Fair Trial Act provided a detailed mechanism through which surveillance could be undertaken and the provisions of the law provided for due process and supervision along with checks and balances in the form of intra- executive scrutiny to be undertaken by the relevant minister who authorised the surveillance and subsequently by a review committee comprising ministers for law, defence and interior.

The high court observed that the Fair Trial Act also provided for grant of requests for surveillance by a judge of the high court. No phone tapping or other surveillance could be undertaken except pursuant to a warrant issued for such purpose by a judge of the high court, the IHC declared. It observed that prima facie, no official of the executive/federal government, intelligence agency or police was authorised to undertake surveillance of the citizens of Pakistan.

The high court observed that if any employee of the government or investigation or intelligence agency was undertaking surveillance and/or telecom companies and service providers were affording their facilities to facilitate such surveillance, all such individuals were liable for offences under provisions of the Telegraph Act, Telecommunication Act, Fair Trial Act and Pakistan Electronic Crimes Act (Peca).

The IHC observed that any such unauthorised surveillance would also be in breach of fundamental rights of citizens guaranteed by the articles 9, 10A, 14 and 19 of the Constitution read with the Article 4 and would cause irreparable harm to the liberty, dignity and privacy of the citizens.

“Till the next date of hearing, the intelligence agencies, including, inter alia, the ISI and IB, and police authorities will not surveil any citizens, except in accordance with requirements of the Fair Trial Act and warrants duly issued by a Judge of the High Court,” the IHC ordered, saying that neither the PTA nor the telecom companies shall authorise the use of their services or equipment for purposes of any surveillance or interception of phone calls or data.

The high court directed the federal government to file appropriate reports for purposes of the Section 5 of the Telegraph Act, Section 54 of the Telecommunication Act and provisions of the Fair Trial Act, explaining the manner in which provisions of the Fair Trial Act had been given effect and providing details of the requests that had been made under the provisions of the Fair Trial Act to the relevant ministers and courts for issuance of warrants since the law entered into force in 2013.

The IHC directed the federal government to file a report stating whether any phone tapping had taken place since the enactment of the Fair Trial Act, especially in the context of the press reports stating that the ISI and IB acknowledged that they undertook phone tapping of thousands of citizens of Pakistan in 2015.

The high court directed the ministries of defence, interior and law to file appropriate reports in such regard stating whether or not any phone tapping had taken place in Pakistan since the enactment and entering into force of the Fair Trial Act and the manner in which they had discharged obligations of the review committee for the purposes of the Section 27 of the Fair Trial Act.

The bench directed the ISI directorate general, three service intelligence agencies, IB and the inspector general police ICT, who are defined as ‘applicant’ under the Section 3(a) of the Fair Trial Act to file individual reports stating whether they had discharged their statutory obligation to appoint an authorised officer in terms of the Section 4 of the Fair Trial Act and complied with the requirements of the said law in seeking approval for surveillance.

The high court directed that reports by the ISI and the three services intelligence agencies may be filed through the office of the prime minister or ministry of defence, in accordance with the law and the Rules of Business, 1973.

The IHC directed the PTA to file a report stating whether any standard operating procedures or instructions had been issued to the telecom operators to facilitate lawful interference (LI) and/or share telecom data with anyone in breach of the provisions of the Fair Trial Act.

The bench observed that if so, the report would accompany the SOPs or instructions issued along with an explanation regarding the legal authority under which they had been issued.

The high court inquired the additional attorney general to delineate the legal framework under which surveillance was being undertaken in Pakistan.

The Additional attorney general acknowledged that the reports filed by the federal government and its divisions and ministries under the authority of federal secretaries had represented before the court that no entity or agency of the country had been authorized to undertake surveillance or legal interception of telephone calls or telecom data.

He, however, sought time to seek further instructions from the federal government and its relevant divisions/ministries and the prime minister’s office in this regard.

The bench observed that the additional attorney general had read the provisions of the Telegraph Act 1885 and the section 5 of the Telegraph Act provided that the state could order interception of a telegraph on occurrence of a public emergency or in the interest of public safety.

The IHC observed that the additional attorney general had submitted that no such declaration had been issued by the federal government authorising surveillance of citizens but he would once again seek instructions from the federal government in such regard.

The federal law officer read out the sections 23, 24 and 25 of the Telegraph Act, which provided that unauthorised interception or interference with a telegraph or an attempt to learn the content of a telegraph constituted an offence punishable with up to three years of imprisonment in addition to fine.

The law officer also read the section 54(1) of the Pakistan Telecommunication (Re-Organization) Act, 1996 as well as the Section 57(2)(ah) of the Telecommunication Act. The Section 54(1) of the Telecommunication Act empowered the federal government to authorise any person to intercept calls and messages and trace calls through the telecommunication system in the interest of national security or in the apprehension of any offence.

He submitted that no rules in this regard had been framed in exercise of rule-making power under the Section 57 of the Telecommunication Act.

The high court observed that when the law officer was reminded that the federal government had already filed a report stating that no entity or agency had been authorised to intercept calls and messages and trace calls for purposes of surveillance, the additional attorney general sought time to solicit further instructions from the federal government. The IHC observed that the additional attorney general also read the Fair Trial Act 2013, which provided a detailed procedure for purposes of surveillance, in which the directorates general of intelligence of the ISI, Military Intelligence (MI), Air and Naval Intelligence, director general of the IB and police authorities were under a statutory obligation to notify an appropriate officer not below the rank of BPS-20 for making applications for purposes of intercepting material as defined under the Section 3(g) of the Fair Trial Act.

The law officer said the sections 5, 6, 7, 8, 9, 10 and 11 of the Fair Trial Act prescribed the process and mechanism for seeking permission for surveillance and for grant of such permission by the relevant minister and ultimately by the court.

He said that once an application was approved by the relevant minister, such an application was to be filed before a judge of the high court for seeking a warrant for surveillance. The law officer submitted that the authorised officer was required to present the grounds for the application along with relevant material to the judge in the chamber to convince the judge of the need for issuance of such warrant.

He said that the warrant, once issued, was then to be executed through the designated agency or body, after which service providers were to provide assistance for surveillance within the scope as specified in the warrant. The Section 17(2) barred service providers from extending any technical facilities for interception of any person or organisation other than the designated agencies or body within the terms of a duly issued warrant.

He submitted that the Section 27 of the Fair Trial Act also provided for a review committee comprising the defence, interior and law ministers who were to meet on a six-month basis and review the manner in which surveillance was being carried out and whether it was serving the legitimate state purpose for which it had been undertaken. He referred the sections 34 and 35 of the Fair Trial Act which made misuse of intercepted material or unauthorised surveillance or interception criminal offences punishable with jail terms of up to five years as well as with a fine.

The high court inquired the law officer whether the provisions of the Fair Trial Act were being given effect and whether any surveillance requests, approved by relevant ministers, soliciting warrants from any judge of any high court across Pakistan had been made. The law officer sought time to file a proper report in this regard.

The IHC asked whether the review committee in terms of the Section 27 of the Fair Trial Act comprising the three ministers was in existence. The law officer once again sought time to furnish a report in this regard.

The IHC observed that the law officer did submit in response to the court’s question that no request for a surveillance warrant had been sought from Islamabad High Court during his term as the federal government’s most senior law officer deputed at this Court.

The high court observed that the additional attorney general read the Section 19 of Peca, which stated that unauthorised interception through any electronic system was an offence and attracted a jail term of up to two years as well as a fine. The IHC inquired whether the cases of unauthorised interception that were the subject matter in the petitions pending before the court had been registered as criminal cases. The law officer replied in negative.

The officer stated that the complainants had not assisted the relevant investigation agencies. The IHC inquired as to whether the registration of a criminal case was contingent on the complainant appearing before police or investigation authorities even where it was in the knowledge of the state that an offence had been committed. The law office replied in the negative.

The high court brought to the attention of the law officer to press reports from The Nation (March 15, 2015 and June 04, 2015), Dawn, Express Tribune (June 04, 2015), and The News (March 22, 2023), asserting that the ISI and IB had filed reports with the Supreme Court in May 2015 in a suo moto matter related to the surveillance of Justice Sajjad Ali Shah when he was the chief justice of Pakistan in 1996, stating that they had taped telephones of thousands of citizens of Pakistan.

The IHC inquired whether such phone tapping was undertaken in compliance with the provisions and requirements of the Fair Trial Act, which was in the field in 2015. The law officer again sought time to file a report.

The high court observed that it would hear the counsel of All Pakistan Newspaper Society, Pemra and telecom companies on the next hearing fixed for June 25.