By Qamar Bashir
In a clever move to circumvent the judgment authored by Justice Babar Sattar of the High
Court, the government, with rubber-stamp approval from the cabinet, has issued an SRO
authorizing the ISI to conduct mass surveillance on anyone in the country. This decision
allows their entire army of grade 18 officers to engage in surveillance at will, without
needing further executive approval or judicial review.
The government strategically chose the Pakistan Telecommunications (Re-organization)
Act, 1996 to avoid judicial review sensing the belligerent attitude of the judiciary as this
law broadly applies to all telecommunication industries, covering fixed-line, mobile, and
internet-based communications providing surveillance for national security reasons or to
prevent crime, allowing the federal government to authorize the interception of
communications without specific judicial oversight or a warrant process for each
instance.
This choice was particularly advantageous because the Pakistan Telecommunication
Rules 2000 do not specify procedures or SOPs for conducting mass surveillance.
Therefore, without rules or regulations and code of conduct it gives blanket power to the
executive to authorize the interception of any communication that it deemed to pertain to
national security or the prevention of crime. This allows the executive to exploit the term
“National Security” which is broad term encompassing the protection of a country from
threats including terrorism, espionage, military threats, cybersecurity breaches, and
economic disruptions, whereas the term "To prevent crime" include organized crime,
financial crimes, threats to public safety, internet crimes, and drug trafficking.
The government did not invoke the Fair Trial Act, 2013, because it offers a targeted and
regulated framework for surveillance related to terrorism and serious crimes, requiring
judicial authorization and providing detailed procedural safeguards. It also did not invoke
the Prevention of Electronic Crimes Act (PECA), 2016, which addresses electronic
crimes and focuses on data retention, access to data, and content blocking/removal, with
judicial oversight for accessing retained data and specific procedural requirements for
investigating and prosecuting electronic crimes.
Mass surveillance is a global phenomenon employed by many countries, including the
USA, China, and Russia. The USA has established legal frameworks like the Patriot Act,
FISA, and the USA Freedom Act, which include judicial and legislative oversight. In
China, the government exercises extensive control over information and communication
channels, making surveillance an integral part of state governance. Russia employs
extensive surveillance under laws like the Yarovaya Law and the SORM system, justified
by national security and anti-terrorism efforts.
A question arises: while intelligence and investigation agencies in Pakistan, like any
other country, have been intercepting and clandestinely taping and filming private
individuals since the country's inception, and will likely continue to do so with or without
authorizations, why has this matter become such a significant issue now, leading to
adjudication in the courts, widespread media coverage, and becoming a hot topic among
the general public?
There seem to be two main reasons. First, the judiciary is striving to regain its lost
independence and assert its freedom by admitting cases that in the recent past might have
been conveniently overlooked. Second, since 2020, there has been a spike in the leaking
of audio and video recordings, allegedly by the intelligence agencies, of prime ministers,
their spouses, prominent politicians, judges, bureaucrats, and even private information
about army generals and members of civil society on traditional and social media.
Notable incidents include the leaked tapes of Maryam Nawaz discussing party strategies,
and conversations of PTI leaders like Shahbaz Gill, former Prime Minister Imran Khan,
and senior bureaucrats discussing case strategies. Particularly disturbing were the private
filming of Senator Azam Swati and his wife, and leaked conversations of Bushra Bibi
with her lawyers. Information involving High Court Judge Babar Sattar and Justice Tariq
Mehmood Jahangiri was also disclosed. A commission was set up under Justice Faez Isa
in May 2023 to probe the audios that surfaced on traditional and social media, raising
serious apprehensions about the independence, impartiality, and integrity of the chief
justices and judges of superior courts in the administration of justice.
These intercepted audio and video messages, no matter how serious, seemed to have no
correlation with terrorism or national security, but were allegedly meant for political
maneuvering, interfering with the parliament, executive, and judiciary, and curbing the
freedom of the press, free speech, and free expression.
The nation deeply understands and is profoundly thankful to the Pakistan Army and the
Inter-Services Intelligence (ISI) for their exceptional service to our country. The Pakistan
Army, with the unwavering support of the ISI, has thwarted and preempted thousands of
terrorist attacks, saving the lives of countless innocent citizens.
Our hearts bleed when our young soldiers heroically lay down their lives almost every
day, fighting against hardcore terrorists, extremists, insurgents, and criminals in the harsh
deserts and along the treacherous borders with India, Afghanistan, and Iran. Their
sacrifices keep our country safe and allow the people of Pakistan to pursue their
livelihoods with peace of mind and a sense of security.
However, it is with a heavy heart that we acknowledge a troubling concern for all
patriotic citizens. Our beloved Army and proficient ISI, despite their invaluable
contributions, have been unfairly targeted, insulted, desecrated, and criticized for their
alleged involvement in civilian affairs and political manipulation.
The ISI stands accused of taping audio and video messages and retrieving private,
sensitive information about politicians and judges, only to have it leaked onto social and
traditional media.
Additionally, there have been distressing allegations that the ISI is involved in the
abduction of politicians and journalists without judicial review, aiming to achieve
political ends with no apparent connection to national security or heinous crimes. This
damaging perception is not only harmful to the Army and ISI, but also jeopardizes the
security and safety of our country and its people.
As a united nation, we must come together to confront this profound dilemma. We need
to use every resource at our disposal to address the underlying causes, correct this
damaging perception, and restore the trust and honor of our esteemed Army and ISI. Only
by doing so can we ensure that their heroic sacrifices and tireless efforts are rightly
recognized and that the true reality aligns with the perception.
