Constitution and leaked audios
OVER the Eid Holidays two audio tapes surfaced over on social media; one was of a phone conversation of former Chief Justice of Pakistan Saqib Nisar, which he himself admitted as genuine and the other purportedly of the mother in law of the serving Chief Justice of Pakistan. Not long after a leaked audio tape of his Sqaib Nisar’s son was also uploaded on social media. This is not the first time judges of the Supreme Court have suffered this affliction, just some time back an alleged conversation between a judge of the Supreme Court and Pervez Elahi made headlines, the government and its allies still refer to that tape for their rhetoric.
But it’s not only the judges, Imran Khan and his wife, Maryam Nawaz, Asif Zardari and even Prime Minister Shahbaz Sharif among others have had their audio conversations leaked. It is easy to comprehend that every time such an audio is released of a particular individual, his political opposition uses it to attack him, and his political allies provide explanations. However in all this political pandemonium, some important questions remain unanswered, who has the ability and capability to intercept and record such conversations, can they in fact be intercepted and recorded legally, if so who has the authority to intercept and record such conversations, how they can be used and whether they can be uploaded online and made “viral on social media”. I intend to answer those questions today.
The first reference has to be made to the Constitution which clearly enunciates the right to privacy under Article 14(1) of the Constitution pronouncing that the dignity of man and the privacy of home shall be inviolable. This fundamental right however is subject to law. This makes perfect sense, I have the right to enjoy the privacy of home, however if I am committing an offence, for example murdering or grievously assaulting someone, the police being the law enforcement agency has the right to intervene under their Code of Criminal Procedure powers. How does this apply to recording phone calls then?
There are three laws that deal with such a situation. The first is with regard to monitoring traffic on mobile service providers, which is provided under the “Monitoring and Reconciliation of Telephony Traffic Regulations (2010)” which provides that each license holder of PTA providing mobile networks establish a system that allows for real-time monitoring and recording of traffic on its networks. As any lawyer would know, such monitoring leads to “Call Detail Records” (CDR) being generated which are used in criminal trials as a matter of routine. These CDRs include details of the time and location of calls made to other people but does not include the conversations themselves. However, certain law enforcement agencies have the power to record conversations as well.
The Investigation for Fair Trial Act (2013) was made law inter-alia to prevent the law enforcement and intelligence agencies from using their powers arbitrarily and since it was found necessary to regulate the said powers and provide for their permissible and fair uses in accordance with law and under proper executive and judicial oversight. Under the law cited, therefore only a few agencies have been given the power to intercept and record conversations; Directorate-General Inter Services Intelligence, the three Services Intelligence Agencies, Intelligence Bureau and Police or only one or more agency or body designated by the Federal Government through notification. Under Section 36 of the Prevention of Electronic Crime Act 2016 only if the competent court believes that there are reasonable grounds to believe that the content of any information is reasonably required for the purposes of a specific criminal investigation, the Court may order, a designated agency under the Investigation for Fair Trial Act to intercept and record such conversations.
Two things however are clear from the law, being the Fair Trial Act, one that there is a very strict mechanism on when such calls can be recorded and intercepted and second that it can only be done so in relation to specific offences. The mechanism is that first the agency, through its head, will file for permission before the Federal Interior Minister, and only after his permission then file an application before a sitting Judge of a High Court as per territorial jurisdiction to obtain a warrant to intercept and record such conversations. The intercepting and recording needs both the permission of the Federal Interior Minister and a High Court judge. The offences for which such permission can be sought are related to terrorism, anti-state activities and disciplinary issues of the forces only. It is clear from all the recorded and leaked conversations thus far that both of these tests were not met, and if an intelligence agency did in fact record such conversations it was done illegally. Even then, while the law provides for interception and recording, there is no permission under the law to release such recorded conversations, officially or unofficially.
This interception and recording however is not a new phenomenon, in 1996, then Chief Justice of Pakistan Sajjad Ali Shah found a spying device connected to his phone and took suo motu notice of the recording of phone calls by the intelligence agencies. Later on former President Farooq Leghari dismissed the government of Benazir Bhutto, which dismissal was upheld by the Supreme Court, a major argument by the President before the Supreme Court was the phone tapping of Supreme Court judges by the now dismissed government. In its verdict, the court had observed that there was no basis in law for carrying out the phone-tapping and eavesdropping techniques.
Let’s be fair here, many agencies all over the world use such surveillance to protect its national security, one could easily refer to the Pegasus scandal in Israel, India or Panama, but, compared to Pakistan there are few or no cases of such recorded conversations being leaked. If it is indeed one of our agencies which is intercepting, recording and releasing such audios, then it is troublesome for the reason that they are not acting constitutionally and legally, but if they deny this and it is in fact some private hackers or a foreign agency that is tapping into the conversations of Pakistan’s Prime Minister and Chief Justice, it is much more troublesome, being a breach of our sovereignty and national security. The suo motu case regarding the illegal tapping by intelligence agencies is still pending in the Supreme Court. It is therefore appropriate that the Supreme Court finally decide this 27-year old case and pass necessary directions to the government to implement the law in its letter and in spirit.
—The writer is contributing columnist, based in Karachi.