Supreme Court halts IHC proceedings in audio leaks case

ISLAMABAD:

The Supreme Court has halted the proceedings of the Islamabad High Court (IHC) in the audio leak case and at the same time stayed its order by which the capital's High Court had initiated contempt of court proceedings against senior officials of the telecom regulator.

A bench comprising Justice Aminuddin Khan and Justice Naeem Akhtar Afghan on Monday allowed a government petition challenging the IHC order passed by Justice Babar Sattar on June 25.

Last year, Justice Babar Sattar had initiated proceedings against surveillance of telephone conversations of private citizens on the basis of two separate petitions filed by Bushra Bibi, wife of former Prime Minister Imran Khan, and Najamus Saqib, son of former Chief Justice Saqib Nisar, against the alleged leaked telephone conversations.

While Bushra's alleged phone call was about the use of gifts from Toshakhana, the allegedly leaked audio recording shows Najamus Saqib demanding his “share” from a politician who had helped him get on the PTI's electoral list through his father's influence.

The last National Assembly had formed a special committee to investigate the PTI party ticket scandal and summoned the son of former CJ and some other persons. Najamus Saqib had approached the IHC against the direction of the special committee of the NA, which the IHC later quashed.

At the hearing of the case on June 25, the IHC had served notices on the Chairman of the Pakistan Telecommunication Authority (PTA) and its members for misrepresenting facts relating to the Lawful Intercept Management System and thereby “influencing the course of justice”.

The order said the government had not granted any authority – neither the security nor the intelligence services – or any person under the Telegraph or Telecommunications Act permission to record telephone conversations or monitor citizens.

“Neither the Federal Government of Pakistan nor the law enforcement and intelligence agencies have ever applied for a surveillance warrant under the provisions of the Fair Trial Act.

“[However,] A mass surveillance system for citizens in the form of a Lawful Intercept Management System was installed at the expense of the telecommunications licensees. [companies] on the instructions of the PTA in a monitoring centre designated by the PTA for use by designated authorities.”

The order states that the system will allow authorities to monitor the telephone conversations of four million citizens at any time and that the system will also give certain authorities access to citizens' audio and video data through telecommunications companies' networks.

“The Lawful Intercept Management System has been installed and is being operated without any legal basis. Those who use the system and/or facilitate its use may be guilty of criminal offenses under the provisions of the Fair Trial Act, the Telecom Act, the Prevention of Electronic Media Crimes Act (PECA), the Telegraph Act and the Pakistan Penal Code,” it said.

Deputy Attorney General Amir Rehman challenged the order in the Supreme Court, arguing that the IHC had exceeded its jurisdiction under Article 199 as a high court cannot take cognizance on its own initiative, according to two Supreme Court judgments. He added that the five questions raised during the IHC hearing on May 31 had nothing to do with the plaintiffs' case.

“In its May 29 order, the IHC banned the authorities from intercepting telephone conversations. As a result, intelligence agencies can no longer conduct counter-espionage and it has become difficult to arrest terrorists. The ISI [Inter-Services Intelligence] and the IB [Intelligence Bureau] interception of telephone conversations and even access to call data records (CDRs) was prohibited,” he said.

During the hearing, Justice Aminuddin Khan asked whether the IHC had ascertained who was recording citizens' telephone conversations. The Deputy Attorney General replied that this had not been ascertained yet and the investigation was still underway.

Judge Naeem Akhtar Afghan noted: “Unfortunately, no one in this country wants to find out the truth. A commission of inquiry was set up to find out the truth, but the proceedings were stayed by the Supreme Court.”

“The audio leak case was not retried in the Supreme Court, and when Parliament tried to uncover the truth, that attempt was also stopped. If neither Parliament nor the courts are allowed to do their job, how will the truth ever come out?”

The last PML-N government had also formed a judicial commission headed by Qazi Faez Isa, the then senior chief justice, to investigate the audio leaks. However, a Supreme Court bench headed by former Chief Justice Umar Ata Bandial suspended the meetings of this commission on May 26, 2023.

Judge Khan asked whether it was possible that the plaintiffs themselves had leaked the audio. “Has this aspect been taken into account? Nowadays every mobile phone has a recording system,” he added.

The court order said that the IHC's May 29, 2024, order was reviewed and it was decided that the order would not be extended in the next trial. “Since the IHC's May 29 order was not extended, there is no reason to stay the order,” it said. The court later adjourned the hearing indefinitely.