ISLAMABAD: Days after an audio clip featuring a purported conversation between former first lady Bushra Bibi and her lawyer Latif Khosa was leaked on social media, Justice Babar Sattar of the Islamabad High Court (IHC) sought a report from the director general of the Inter-Services Intelligence (ISI) in resp­onse to an application filed by Bushra Bibi regarding the leaked conversation.

Bushra Bibi filed an application in the already pending matter in the high court related to audio leaks, with her lawyer arguing that the recording beached the right to dignity and privacy ensured by Article 14 of the Constitution. He said the conversation leaked on social media was picked up by the electronic and print media. The judge inquired from where the audio emerged on social media, stressing that the sou­rce could be traced once the platform was identified.

Mr Khosa argued that the illegally recorded audios were released subsequently and were aired by mainstream electronic media in breach of the guidelines prescribed by the Pakistan Electronic Media Regulatory Authority (Pemra). He said Pemra did not take action to prevent the same. Subsequently, the print media also published stories reporting the conversation, he added.

The lawyer stated that the federal government in the clubbed matter has already filed responses, stating that no authority or agency has been authorised to undertake surveillance or record telephone conversations of citizens.

Justice Babar Sattar asks ISI chief, PTA chairman to identify accounts that first shared Bushra-Khosa’s purported conversation

Justice Sattar observed that the Constitution guarantees the right to privacy and dignity and the fundamental right to liberty. “These declarations…are not platitudes, but are actionable entitlements of citizens that cannot be usurped...”

“...Within our constitutional jurisprudence, access to justice has been recognised as a fundamental right guaranteed by Article 9. And the right to a counsel and access to the counsel is a subset of the right to access justice, which cannot be undermined by intercepting and publishing privileged attorney-client conversations.”

“The federal government has already been put to notice with regard to the grave transgression of fundamental rights to privacy and dignity attributed to [it]…and its instrumentalities. The continuation of illegal surveillance in a manner that flouts attorney-client privilege is a manifestation of the sense of impunity that perpetuates the practice of illegal surveillance.”

The order said, “The repeat of actions that are sub judice engenders an unfortu­nate perception that the federal government and its instrumentalities are either incompetent and thus

incapable of disch­arging the obligation of the state to protect the fundamental rights of citizens or complicit in making illegal and unconstitutional practices all pervasive.”

“The breach of fundamental rights of citizens, if established, is not without consequence. It has most recently been held by the Supreme Court that Article 212(1)(b) of the Constitution promises to indemnify citizens against the tortuous acts of the government or any person in the service of Pakistan,” the order read, adding: “And till such time that a special tribunal is constituted for such purpose, the high court may afford such remedy where the rights of citizens are breached due to failure of the state and its servants to discharge their constitutional or statutory obligation.”

‘Report in 10 days’

The court issued notices to the secretary of interior, the Pemra chairman, and the ISI chief. The IHC directed Pemra to submit the “report and response on how a leaked private conversation can be al­­lowed to be transmitted on TV channels”.

The court directed the Pakistan Telecommunication Authority (PTA) chairman to “undertake an inquiry and forensic analysis of the data available on social media…to determine the accounts through which the information was first released and identify the IP addresses to ascertain the identity of individuals…”

The PTA chairman could also “seek requisite information and assistance from the social media companies while advising them that such assistance is required under the law of Pakistan for compliance with a court order”.

“Let a copy of the application also be sent to the director general of Inter-Services Intelligence…[for] an investigation using all technological means and tools available with the ISI and determine independently the identity of those who released the audio on social media and file a report for the perusal of this court,” the judge ordered.

“Let all reports and responses be filed within 10 days,” said the court order. The court summoned the PTA law DG and Pemra law director at the next hearing on Dec 20.

Published in Dawn, December 8th, 2023