The Islamabad High Court has sought a report from the federal government within six weeks over the operation of a surveillance system in the country as it issued a 29-page order on the audio leaks case.

“This court expects that the prime minister will solicit appropriate reports from all the intelligence agencies that ultimately report to him and place the matter before the federal cabinet,” the IHC said.

This is a case in connection with the petitions filed last year by ex-premier Imran Khan’s spouse Bushra Bibi and Najam Saqib, son of former chief justice of Pakistan Saqib Nisar, against alleged audio leaks.

Bushra Bibi had challenged an FIA inquiry based on her alleged conversation with Zulfi Bukhari, a former aide to then-PM Imran, for selling Toshakhana gifts.

In its order, IHC judge Justice Babar Sattar stated that the PM shall have a report filed on behalf of the federal government after the cabinet meeting

It would ascertain whether surveillance was being undertaken in Pakistan in breach of provisions of the Fair Trial Act, Telecom Act and Telegraph Act, in a manner that undermines Articles 9, 14, and 19 of the Constitution.

The report would also see who was responsible for the installation of a Lawful Interception Management System in breach of provisions of the Telecom Act and the Fair Trial Act, and who is to be held liable for installing a mass surveillance system in breach of the constitutional rights of citizens and statutory requirements.

It would also review who “is in charge of the operation of the surveillance system and who is to be held liable for the breach of the right of privacy of citizens, whose data has been accessed through the Lawful Interception Management System and released on social media.”

LIMS

The LIMS is a mass surveillance system through which two per cent of all telecom consumers in Pakistan can be surveyed without any judicial or executive oversight.

According to the data available on the PTA website, there are approximately 192 million mobile cellular subscribers, approximately 2.5 million fixed telecom service subscribers and approximately 136 million broadband subscribers.

“A rough estimation reflects that at any given time over 4 million citizens, who are subscribers of licensed telecom services, can be surveilled through the LIMS that has been installed on the directions of PTA.”

Mass surveillance of over four million citizens

The court was informed that the PTA had issued directions to telecom licensees to finance, import, and install a LIMS at a designated place for the use of designated agencies (which, for convenience, will be referred to as “Surveillance Center”). It enables interception of data and records of telecom customers

The order stated that any surveillance being undertaken in breach of the Fair Trial Act was a criminal act. The court wondered about the extent of the system that enabled the state to undertake mass surveillance of over four million citizens simultaneously.

“The prime minister and the members of his cabinet are individually and collectively responsible for the existence and operation of any mass surveillance system if it turns out that such surveillance is being or has been undertaken,” it said.

Anonymous accounts on social media

The high court noted that a logical deduction from the reported instances of audio leaks would, prima facie, be that there were surveillance mechanisms in place through the use of which audio recordings of prime ministers, of political leaders in and out of parliament, of judges and their relatives, and of relatives of politically relevant individuals and prominent businessmen are being made and subsequently released through the anonymous accounts on social media, which conversations then make their way to mainstream media.

Two possibilities

While mentioning the reports from the state and its institutions, it noted that there could be possibilities that the state and its investigation and intelligence agencies have never felt the need to undertake surveillance for any state purpose or state agencies and instrumentalities undertook surveillance in an illegal manner, without being backed by the authority of law.

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“These possibilities have to be considered in view of the innumerable incidents of the release of illegally recorded audio conversations, including those that form the subject matter of the instance petitions,” it said.

Response from PTA

The high court was of the view that the PTA chairman and its members misrepresented themselves to this court.

“Let a show-cause notice be issued to them under Article 204 of the Constitution read together with Section 2(b) and 6 of the Contempt of Court Ordinance, 2003, for filing reports and making misrepresentations with regard to the Lawful Intercept Management System with an attempt to divert the course of justice and prejudice the determination of subject matter in the instant petitions,” it said.

The court has sought their responses within a period of six weeks and ordered them to appear in person on the next date of hearing.