ISLAMABAD: The senior counsel representing Justice Qazi Faez Isa pleaded before the Supreme Court on Tuesday to go beyond just passing strictures by ordering an investigation against offenders guilty of conducting covert surveillance of judges.

“The Supreme Court should give a clear and unequivocal message of not condoning such behaviour and any material gathered in such a manner should be thrown out,” Muneer A. Malik argued before a 10-judge full court of the Supreme Court hearing a set of challenges to the filing of presidential references against Justice Isa.

“On this corollary, I will say that the reference against Justice Isa must be quashed for violating privacy and dignity of man which were inviolable rights,” the counsel argued. He highlighted the need for stopping covert surveillance not only against judges and their families but also against ordinary citizens.

Justice Umar Ata Bandial, who heads the full court, observed that this was certainly an area crying out for legislation.

The counsel contended that he was using the term ‘covert surveillance’ deliberately since he did not know in what manner and how precisely his client and his family were snooped upon or their emails hacked or their movements shadowed.

Intrusion into the privacy of superior court judges has always had a devastating impact upon independence of the judiciary, the counsel said, adding that it cannot browbeat the judges because like his client they were men of steel.

But this practice shattered the confidence of ordinary people, Muneer Malik contended. It was difficult for a citizen to digest that a judge would be able to work without fear or favour after learning that he was being watched, he said.

“The confidence of a litigant will be damaged irreparably when he appears before the judge concerned.”

To establish how serious an offence surveillance was, the counsel cited a 1998 Supreme Court judgement in the Benazir Bhutto versus the federation and the 2010 Iftikhar Muhammad Chaudhry cases.

In the Benazir Bhutto case, the Supreme Court had held that the covert surveillance of judges, including telephone tapping and eavesdropping by intelligence agencies, was a sufficient ground for dissolution of the government of that time.

It transpired during the hearing case that telephones of Supreme Court judges, as well as political leaders, were tapped and that it was in the knowledge of the prime minister as a record was regularly sent to her in sealed envelopes.

Although Benazir Bhutto denied the allegations by countering that she herself had been a victim of telephone tapping and that she had even complained to the President, the counsel recalled the apex court observed that planting of bugging devices violated Islamic principles.

Although the Supreme Court concluded that wiretapping and eavesdropping were sufficient grounds for the dismissal of Benazir Bhutto’s government, Muneer Malik recalled, no lessons were learnt and even former chief justice Iftikhar Muhammad Chaudhry was not spared.

The counsel said during the hearing in the Iftikhar Chaudhry case, an application was moved by the federal government that contained confidential information and pictures of family members of the chief justice. “The pictures were intended to scandalise even those judges who were not party to the case.”

Since the source of the documents were not known, the court asked the attorney general of the day as well as the late Sharifuddin Pirzada to enlighten it, but both of them said they had no knowledge either.

Justice Syed Mansoor Ali Shah asked the counsel whether there was any law which allowed wiretapping or bugging in the national interest. Mr Malik replied that in the Benazir Bhutto case, a Supreme Court judge had proposed the formation of a commission to determine what was the national interest and what steps could be taken in this regard.

Justice Yahya Afridi wanted to know whether there was any law on the matter in any other country. Muneer Malik replied that in the United States wiretapping was permissible to a certain extent subject to permission from the authorities.

He recalled that the National Accountability Ordinance provided for the surveillance of a suspect, but the NAB chairman had to seek permission from the high court concerned.

Mr Malik emphasised that Abdul Waheed Dogar, who made the complaint against Justice Isa, did not have any idea about the Spanish name of Justice Isa’s wife, but still a search was made to find out the offshore properties in her name and those of the children.

Published in Dawn, December 4th, 2019