Phone-tapping of judges sufficient grounds for dissolving government, argues counsel for Justice Isa

ISLAMABAD: The Supreme Court (SC) on Tuesday questioned the unchecked phone-tapping of citizens by different intelligence agencies, and stressed the need for making proper laws in this regard as the matter related to the dignity of people as enshrined in the Constitution.

The discussion around privacy concerns was held during a hearing of the petitions challenging a presidential reference filed against Justice Qazi Faez Isa for allegedly not disclosing foreign properties in his wealth returns. A 10-member bench presided over the hearing. 

The bench, headed by Justice Umar Ata Bandial, included Justice Maqbool Baqir, Justice ManzoorAhmed Malik, Justice Faisal Arab, Justice Mazhar Alam Khan Miankhel, Justice Sajjad Ali Shah, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, among others. 

The counsel for Justice Isa, Munir A Malik, argued before the court that spying on judges of the superior courts was sufficient grounds for dissolving an elected government. Malik touched on the issue covert surveillance of the petitioner and his family, made by the authorities. 

“I am using the word covert surveillance to make a point as I do not know how I am (under) surveillance,” Munir A Malik told the court, citing the case of former prime minister Benazir Bhutto verses the federation (PLD 1998), where the court had passed judgement on privacy matters. 

"The former prime minister had stated that she was herself a victim of phone tapping, adding that she had brought the matter into the notice of the president," Malik argued, adding that the apex court had passed a verdict on the petition and set a precedent. 

"In the said judgment. the court had held that Article 14 of the Constitution provides dignity of man and protects privacy as well as fundamental rights of a man. It held that an offence of telephone tapping is also against Article 9 of the Constitution as well as the spirit of Islam."

“Phone tapping also violates privacy and disturbs peace and tranquillity of a family,” Malik contended, while referring to the judgment. The counsel also cited another judgment in which the court had termed the spying repugnant to basic fundamental rights. 

In the said case of former chief justice Iftikhar Chaudhry, the president did not take the matter up and instead sent a reference against the top judge to the Supreme Judicial Council. Justice Mansoor Ali Shah asked if there was any law that allowed bugging and phone tapping. 

“No my lord,” Munir A Malik replied, but added that in United States, phone tapping was permitted, but subject to the approval from a judicial officer. "There must be a law,” Justice Mansoor said. Justice Faisal observed that in criminal cases, information could be collected by phone.

Munir A Malik also referred to Section 19 of the NAB Ordinance. Justice Mansoor inquired from the counsel about the definition of surveillance, adding as to whether it meant chasing someone or installing cameras in a bedroom. “Is there any order available from any court of law,” Justice Mansoor Ali Shah questioned. “It is not, in my knowledge,” Malik replied.

"This is the area where there is a dire need of proper legislation,” Justice Umar Ata Bandial observed. Malik contended that his client, the petitioner, had no doubt about the competence of the bench, but was of the view that people and citizens of this country had posed confidence in the judiciary, hence their confidence should not be betrayed.

Therefore, he submitted that any document or information collected on the basis of surveillance should be thrown out, adding that the court should not accept the information which was collected after violating the basic fundamental rights and dignity of an individual.

“That’s why I have repeatedly submitted that the reference made on the basis of mala fide intentions should be quashed,” Malik submitted, adding that he would be focusing on those facts which would lead to a reasonable conclusion of the case. The hearing is set to resume on Wednesday. 

Originally published in The News