December 15, 2019

By Ayesha Nazar


Pakistan has a history of covert operations carried against governments, politicians, activists and even common citizens. In 1998, the Supreme Court held that covert surveillance of judges and information gathered through nefarious means, such as eavesdropping by the agencies, phone tapping and intimidation were ample reasons and sufficient grounds for the dissolution of the Benazir Bhutto government. It said that Bhutto has been accused of receiving sealed envelopes with sensitive and private information.

Similarly, in 2010, during the hearing in Iftikhar Chaudhry’s case, it was revealed that the federal government of Pakistan People Party had moved an application that contained sensitive and confidential information, including pictures of his family members. It was a clear intention to scandalize and damage the reputation of even those judges who were not party to the case. Thus covert operations meant for political favour or military gain are used to defame individuals for decades.

A similar case surfaced earlier this year. It is now being argued in court and an investigation is underway. Last Wednesday, the Supreme Court of Pakistan adjourned the hearing of Justice Qazi Faez Isa’s petition till the 16th of December. The petition has challenged the presidential reference  against Judge Isa for not disclosing his assets in his wealth statement. The proceedings were led by the bench of the apex court consisting of ten members, headed by Justice Umar Ata Bandial and comprising Justice Manzoor Ahmad Malik, Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Qazi Muhammad Amin Ahmed, Justice Munib Akhtar, Justice Sajjad Ali Shah, Justice Faisal Arab, Justice Mazhar Alam Khan Miankhel and Justice Maqbool Baqar.

Justice Umar Ata Bandial
Justice Umar Ata Bandial

The Case Against Justice Isa

The reference filed against Justice Qazi Faez Isa alleges that he acquired three properties in London on lease in 2011 and 2015 under his wife and children’s names and never mentioned them in his wealth returns. A certain Mr Waheed Dogar, filed a complaint with Asset Recovery Unit against Justice Faez Isa on April 10th 2019. Dogar came into the limelight in 2017 when he filed a story in a local Urdu news paper on how the journalist Ahmed Noorani was attacked because of his affair with a girl _ a story that was vehemently denied by Noorani who called it fake. Noorani had criticized the military in his writings before he was attacked.

However Justice Qazi’s counsel argued that while the complainant, Dogar,  had identified the property, he had not provided any documents to support his claim. He had also refused to reveal his ‘sources’. Senior Advocate Munir A. Malik said that the documentary evidence in the original complaint by Dogar was not forthcoming, leading them “to presume that it does not exist”. He further stated that the information revealed was gained through unlawful means and covert surveillance.

The content produced by the complainant in relation to the accusation, such as tax information was sensitive in nature and therefore private. Advocate Malik explained that the tax information was purely between the tax payer and the tax commissioner. The Income Tax Ordinance (ITO) 2001 and the Nadra Ordinance 2000 impose a statutory duty on confidentiality. The counsel also referred to ITO’s section 216 stating that the law dealt with maintaining confidentiality of the tax history of an individual and according to Section 198 of the tax law, one year jail term and a hefty fine of Rs 500,000 is imposed for breaching the confidentiality regarding the tax history whereas section 199 of the same law also includes abettors like the officers who pass on the information.

Furthermore, a public functionary cannot use information of a personal nature for any purpose other than what it has been provided for. Malik argued that tax commissioners and other tax officers who delivered reports to the chairman of the Asset Recovery Unit (ARU) are all guilty of sharing the private tax records of Justice Faez Isa and that these details were collected through nefarious means. When prompted to prove such a claim, Malik wondered how Ziaul Mustafa of the FBR, discovered three properties when he had no idea about the Spanish name of the wife of Justice Isa. He questioned how the documents were collected on April 23 within one week of the task given by the ARU chairman even without the name.

Mr. Waheed Dogar
Mr. Waheed Dogar

‘Privacy of the home has been violated’: Adv Munir A Malik

This invasion of Justice Faez Isa’s privacy through covert surveillance, the counsel argued, poses a threat to not just the concerned individual, but also to the masses in general. Article 14 of the Constitution of Pakistan ensures the privacy stating that”[t]he dignity of man and, subject to law, the privacy of home, shall be inviolable”. Additionally, rule 18 of the Government Servants (Conduct) Rules 1964 states that government servants shall not pass any document or details to unauthorized individual, media or organization, even if the person is a government official. The circumstances under which the complaint was filed, especially in regards to the complainant Mr Dogar, is also questionable. Mr. Dogar had previously published the false ‘Larki Ke Bhai’ news story against journalist Ahmad Noorani after the attack on him in October 2017. He has also refused to reveal his sources for the current petition against Justice Isa, which leads us to conclude that the material shared was gathered through a serious invasion of Justice Isa’s privacy, and it was done by violating several laws and fundamental rights.

‘Legislation should be passed to prevent agencies from carrying out covert surveillance’

The mere perception of being monitored and surveilled can have a chilling effect. Covert surveillance, as Malik argued, affects not just the individual, but also the public at large by instilling fear, distrust and dread. The counsel proposed that a legislation should be passed to prevent agencies and malicious parties to carry covert surveillance that infringes on personal freedoms and submits the masses to state control. The negative effects of surveillance on our fundamental freedom of expression are against our constitutional rights and while they may seem less apparent in the internet era of ubiquitous networking and digital connections, they are no less important.