SHC issues notices in ISI ‘interception’ powers case
KARACHI: The Sindh High Court (SHC) on Monday issued notices to the cabinet division, ministry of interior and other respondents on a petition impugning a federal government’s decision that gave the country’s premier intelligence agency powers to intercept calls and messages.
A two-judge bench comprising Justice Arshad Hussain Khan and Justice Sana Akram Minhas also put a deputy attorney general as well as the advocate general on notice for Aug 16.
Citing the cabinet division, ministries of interior, information technology & telecommunication, law & justice and provincial home and law departments as respondents, Abdul Ahad Ahmar Khan had filed a petition before the SHC.
The petitioner submitted that the Ministry of Information Technology and Telecommunication through a July 8 notification — referred to as a statutory regulatory order (SRO) — had authorised the Inter-Services Intelligence (ISI) to nominate officers not below the rank of Grade 18 to intercept calls and messages or to trace call through any telecommunication system as envisaged in the Pakistan Telecommunication (Re-organisation) Act, 1998, citing national security concerns.
Petitioner tells high court SRO violates fundamental right to privacy, constitutional provisions
Mr Ahmar, a practising lawyer, asserted that Articles 9 and 14 of the Constitution protect the fundamental right to privacy and dignity and thus the impugned SRO was a clear violation of these constitutional provisions.
He contended that the SRO, under the guise of “national security” and “apprehension of any offence”, gives unfettered, unchecked and arbitrary powers — essentially an unrestricted licence — to the intelligence agency to violate these fundamental rights.
In the United Kingdom, the petitioner pointed out, intelligence services can only use the interference equipment under a warrant signed by the secretary of state and approved by a judicial commissioner as enshrined in the Investigatory Powers Act, 2016, and added that identical provisions were found in relevant laws of the United States.
However, he argued, the impugned SRO put no such limitations and allowed the agency to obtain private information making it an extraordinary invasion of fundamental right to privacy.
According to the petitioner, Article 12 of the Universal Declaration of Human Rights (UDHR) underscores that no one shall be subjected to arbitrary interference with his/her privacy. Pakistan is a signatory to the UDHR, he said.
The petitioner contended that the impugned SRO was not only a violation of the country’s constitutional provisions, but also a blatant violation and breach of its international obligations.
Citing a 1998 judgement of the Supreme Court in the case of Benazir Bhutto versus President of Pakistan and others, the petitioner stated that as per the apex court, tapping or eavesdropping of citizens to whatever class, group or status they may belong, was not only an offence under the Telegraph Act, but it also offends Articles 9 and 14 of the Constitution.
Mr Ahmar urged the court to declare the impugned SRO and the respondents’ actions ultra vires the Constitution and in contravention of the country’s international obligations.
He sought a restringing order to suspend the SRO till final disposal of the petition.
The court, however, allowed an application seeking urgent hearing of the petition subject to all just exceptions and in its order said, “Let notice be issued to the respondents through all modes except publication as well as DAG and Advocate General Sindh for the next date of hearing to come up on 16.08.2024”.
Published in Dawn, July 23rd, 2024