ISLAMABAD: After accepting the federal government’s appeal challenging an Islam­abad High Court order, the Supreme Court on Monday barred the high court from proceeding with the audio leaks case, instituted on petitions filed by former first lady Bushra Bibi and Najamus Saqib, son of former chief justice of Pakistan Saqib Nisar.

A two-judge SC bench consisting of Justice Ami­nuddin Khan and Justice Naeem Akhtar Afghan issued notices to the respondents in the case, while the date of hearing will be fixed later.

In its June 25 order, the IHC had also issued a show-cause notice under the contempt of court law, accusing the chairman and members of the Pakistan Tele­co­m­mun­ication Authority (PTA) of misrepresentation.

The high court had also ruled that if the man­agement of telecom licensees allowed any entity or person to access citizens’ data in violation of constitutional guarantees under Arti­cles 9, 14, and 19 of the Con­stitu­tion, as well as provisions of the Fair Trial Act, Telecom Act, Telegraph Act, Peca, and PPC, they would render themselves liable for criminal liabilities.

High court orders hindering even lawful counter terror ops by spy agencies, law officer argues

During the hearing in the apex court, Addi­tio­nal Attorney General (AAG) Chau­dhry Aamir Rehman argued that unauthorised tapping is already unlawful, but the IHC’s earlier order on May 29, which prohibited auth­orities from phone tapping or procuring call data records, was hinde­ring even lawful counter-terrorism operations by intelligence agencies like the ISI and IB, thereby impeding their ability to apprehend terrorists.

In its May 29 order, the IHC held that, prima facie, no state official was authorised to conduct surveillance on citizens, and anyone doing so or aiding such an endeavour would be liable for offences, causing irreparable harm to the liberty, dignity, and privacy of citizens. However, the high court observed that since it did not extend these directions in later hearings, there was no need to suspend the May 29 directives.

During the hearing, Justice Aminuddin Khan wondered whether the high court had ever determined the identity of those responsible for the audio leaks.

The AAG explained that the investigation was ongoing, but no conclusive decision had been reached yet. However, he argued that the high court had exceeded its jurisdiction by exercising suo motu powers, which it did not possess under Article 199 of the Constitution. Besides, the directions issued by the high court in its June 25 order were never requested by the petitioners in their original petitions.

Justice Naeem Akhtar Afghan wondered how the truth would ever come to light if neither parliament nor the courts were allowed to function, regretting that in this country no one seems to want to uncover the truth.

He recalled that an inquiry commission was established by the government to investigate the audio leaks, but the Supreme Court stayed it. Since then, the audio leaks case has never been revisited, and when parliament attempted to seek the truth, it was also halted, Justice Afghan lamented.

Justice Khan pondered whether the audio leak might have been orchestrated by the individuals involved in the leaks themselves, and questioned whether the investigation had ever explored this angle since most mobile phones are equipped with recording devices — a factor that should also be taken into consideration in the inquiry, the judge observed.

In its appeal, the federal government challenged the legality and justification of the IHC single bench’s June 25 order, questioning whether the bench had exceeded its authority. The government argued that the single bench had erred by exercising suo motu powers beyond the pleadings of the parties, going beyond the scope of the original petitions.

Published in Dawn, August 20th, 2024