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Muhammad Mushtaq Ahmad
June 30, 2023
Pakistan has witnessed a marked rise in audio leaks — recordings of private conversations — in political and judicial matters in recent months. While the veracity and legality of these leaks have been extensively debated on TV talk shows and publications, much of the discussion has only added to the confusion.
How are audios leaked? How does one confirm their veracity? What laws regulate audio recordings and their leaks? Can they be used as evidence in a court of law? This essay aims to clarify many of these questions.
However, Chief Justice of Pakistan (CJP) Umar Ata Bandial, who also happens to chair the SJC, not only avoided convening the SJC, but also included Justice Naqvi in his bench and later remarked that it was a “silent message”. In this background, the federal government constituted a three-member Commission of Inquiry on May 19, 2023, and nominated Justice Qazi Faez Isa, Senior Puisne Judge, Supreme Court of Pakistan, as its chair alongside the chief justices of the Balochistan High Court and Islamabad High Court (IHC) as the two other members.
In the commission’s first meeting held on May 22, it was declared that it would not function as a court of law and that it would, rather, work as a fact-finding commission. It specifically declared that it would not encroach upon the domain of the SJC. It also decided to keep the proceedings public so as to ensure transparency and to gain public trust.
However, as expected, soon after the commission’s first meeting, several petitions were filed in the supreme court under Article 184(3) of the Constitution. Three main objections were raised in these petitions: (i) that the CJP was not consulted by the government; (ii) that the commission’s Terms of Reference (TORs) overlapped with the SJC’s mandate; and (iii) that the commission’s TORs did not include determining the legality of the audio recordings.
A five-member bench of the supreme court headed by CJP Bandial, heard these petitions on May 26 and issued an injunction, restraining the commission from further proceeding into the matter. The commission, however, held its pre-scheduled meeting on the next day, in which the Attorney-General for Pakistan (AGP) read the order of the supreme court, after which in deference to that order, the commission adjourned its proceedings. Meanwhile, as the commission was arrayed as a party in two petitions, it decided to file a concise statement in the supreme court.
In this statement, the commission highlighted several lacunae in the court’s order and also explained its position on a few issues. For instance, it asserted that the Pakistan Commission of Inquiry Act, 2017, under which the commission was constituted, did not necessitate consultation with, or approval of, the CJP. It also commented, without giving a final verdict, on some aspects of the right to privacy of home.
It meant that the commission was open to hear arguments about the legality or admissibility of the recordings.
One may also point out here that although the TORs did not specifically mention it, the commission could claim authority for this purpose on the basis of at least two of the TORs: (iii) empowered the commission to determine the liability of “all persons named in the alleged audio leaks” under the Pakistan Penal Code (PPC) or “any other law” — this would necessitate determination of the legality as well as admissibility of these audios; (ix) empowered the commission to look into “any matter ancillary or incidental thereto” which it deemed fit to inquire into “in the interest of justice” — this would, of course, include questions about the legality and admissibility of these audios.
In the meanwhile, a committee of the National Assembly summoned Mian Najam Saqib, son of former CJP Mian Saqib Nisar, in connection with some of the audios, but he preferred a writ petition in the IHC, which was heard by Justice Babar Sattar on June 1, 2023. After hearing the arguments of Sardar Latif Khan Khosa, senior advocate of the supreme court and the petitioner’s counsel, the case was admitted for regular hearing and notices were issued. “Who records the audios?” questioned Justice Sattar.
On the issue of genuineness of the audio/video recordings, the court noted: “The advancement of science and technology has now made it very convenient and easy to edit, doctor, superimpose or photoshop a voice or picture in an audio tape or video and, therefore, without a forensic examination, audit or test of an audio tape or video, it is becoming more and more unsafe to rely upon the same as a piece of evidence in a court of law”.
After detailed analysis of the relevant law and a long series of precedents, the court determined a few prerequisites before the audio/video could be deemed genuine: “No audio tape or video can be relied upon by a court until the same is proved to be genuine and not tampered with or doctored”. For this purpose, “a forensic report prepared by an analyst of the Punjab Forensic Science Agency in respect of an audio tape or video is per se admissible in evidence in view of the provisions of section 9(3) of the Punjab Forensic Science Agency Act, 2007.”
It is worth noting here that Article 164 of the Qanun-e-Shahadat, 1984, empowers the court to allow any evidence, which may have become available “because of modern devices or techniques.” However, the supreme court pointed out: “Even where a court allows an audio tape or video to be produced in evidence, such audio tape or video has to be proved in accordance with the law of evidence.”
Among the requirements of the law of evidence referred to by the supreme court, the most important are those relating to ‘primary’ and ‘secondary’ evidence. The supreme court did not examine the admissibility of the recordings if the content thereof was covered by the provisions of the law of evidence about privileged communication. The reason was obvious: this was not the issue in that particular case. This judgement has been relied upon later in a few other cases as well, most important being The State vs Ahmed Omar Sheikh judgement.
We will not further discuss this aspect of the issue and will, instead, presume in the discussion that follows that the recordings are authentic — that their authenticity is either not denied by the person whose recordings they are purported to be, or all the requirements for establishing authenticity such as forensic evidence, chain of custody and the like have been fulfilled.
Still, such recordings may not be legal; or if they are both authentic and legal, they may still be inadmissible. But perhaps the most important question is: if a recording is authentic but illegal, is it still admissible as evidence in a court of law? This lies at the heart of the controversy about the audio-leaks. The Inquiry Commission and the supreme court are both expected to address this question.
Let us now turn to the question of legality, which must be examined separately from the question of admissibility.
1. Recording with consent
According to the Qanun-e-Shahadat, if person A consents to a recording, there can still be circumstances where it may be illegal to use the recording, for instance when the content is privileged such as lawyer/client or doctor/patient communications.
If the recording has been made with consent, and is also not privileged, it may still be illegal to use it. The principle here is one called ‘legitimate expectation of privacy’ (or the ‘expectation principle’), which means in settings where one would expect their interactions to remain private, it would not be allowed to use a record of that interaction for other purposes. An example would be person A recording person B with B’s consent in a private setting at their home, then using the recording for commercial purposes.
The scope of the expectation principle is much wider in the United States than in many other jurisdictions. A glaring example is the judgement in Missouri vs McNeely, in which the US supreme court determined the parameters of exceptions from the fourth amendment right to privacy in exigent circumstances. It held that the police must get a warrant before conducting a blood test for a drunken-driving suspect. It then gave details of what constitutes the ‘exigent circumstance’ which may allow deviation from this principle.
The expectation principle would still also be applicable if the one whose statement is recorded is a public official, or a relative of a public official, even if the recording pertains to an official matter.
2. Recording without Consent
We may subdivide this into two categories:
a. When it is done in a routine manner
An example is CCTV footage. In the Ishtiaq Ahmed Mirza case mentioned above, while drawing a distinction between what is done in a routine manner and what is not, it was held: “The person recording an audio tape or video may be a person whose part of routine duties is recording of an audio tape or video and he should not be a person who has recorded the audio tape or video for the purpose of laying a trap to procure evidence.” For this distinction, reliance was made on an earlier case — Hakim Ali Bhatti vs Qazi Abdul Hakim, 1986.
The expectation principle would also apply if the CCTV camera has been installed in a public place. The footage may be used for various purposes, even commercial ones if the installation was legal to begin with. If it has been installed in a private setting, it may not be used.
b. When it is not done in a routine manner
Phone call recordings and wiretapping fall in this category.
This may be further subdivided into two categories:
i. Where it is legally authorised, that is, all permissions and requirements have been obtained/fulfilled.
ii. Where it is done without legal authorisation
In the former, the act of recording will be legal, though its publication may separately require legal authorisation. In the latter, the act of recording and its publication both are illegal. The most relevant case for this purpose is Mohtarma Benazir Bhutto vs President of Pakistan in which the supreme court examined the validity of the dissolution of the National Assembly by the then-president, Farooq Leghari.
Among the allegations against prime minister Benazir Bhutto’s government was “under the orders of the prime minister, telephones of the judges of the supreme court, leaders of the political parties and high ranking military and civil officials were being tapped and transcripts sent to the prime minister for reading.”
The supreme court held: “The tapping or eavesdropping of citizens to whatever class, group or status they may belong, is not only an offence under the Telegraph Act, but it also offends against Articles 9 [right to life and liberty] and 14 [dignity of man and the privacy of home] of the Constitution.”
In the US, the doctrine of ‘exclusionary rule’ is applied in this situation which excludes illegally obtained information and necessitates warrants that are issued on the basis of ‘probable cause’ — law enforcement agencies must have reasonable grounds to believe that criminal activity is afoot or has been committed.
As noted above, in exigent circumstances, warrantless searches or recordings may be allowed. Another exception could be ‘the danger of destruction of evidence’ when the evidence (of a crime) is in ‘plain view’ of the officer or when the officer is in hot pursuit of a suspect.
In Pakistan, in such situations, the standard of ‘reasonable belief or suspicion’ is used. For instance, Section 22A, Code of Criminal Procedure, 1898, while mentioning the powers of Justices of Peace, says that they may call the police to aid them “in taking or preventing the escape of any person who has participated in the commission of any cognisable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having so participated.”
A more relevant provision is found in section 47 of this code, which states: “If any person acting under a warrant of arrest, or any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into, or is within, any place, the person residing in, or being in charge of, such place shall, on demand of such person acting as aforesaid or such police officer, allow him free ingress thereto, and afford all reasonable facilities for a search therein.”
Similarly, section 53A, which has been recently added to this code, allows medical examination of a rape or sexual abuse suspect: in cases where “there are reasonable grounds for believing that an examination of the arrested person will afford evidence as to the commission of such offence.” There are many other provisions which use this standard.
One significant law in this regard is the so-called Investigation for Fair Trial Act, 2013, which allows surveillance of a person suspected of involvement in a terrorist or anti-state activity. It not only mandates notifying an authorised officer, but also gives an elaborate procedure for issuance and execution of warrants for such surveillance against a suspected person. It applies the standard of ‘reasonable belief’ and uses phrases such as “a reasonable threat” and “possibility of an attempt to commit a scheduled offence”. It also lays down specific conditions for admissibility of the material and information obtained during investigation.
Apart from this very narrow and specific legislation, there is no other law in Pakistan that allows surveillance and interception. This is why Justice Syed Mansoor Ali Shah declared in the famous Justice Qazi Faez Isa vs The President of Pakistan: “Intelligence agencies therefore do not have a carte blanche to probe into the lives of ordinary men and women of this country. These agencies are regulated by law and are subject to law.”
At the same time, he also examined “surveillance where there is no law” and concluded: “Besides this limited scope under the IFTA, no other law regulates the fundamental right of privacy of citizens and allows probe into their lives through surveillance and interception. Thus, in the remaining sphere the right to privacy is absolute, until law is enacted to regulate it.
The violation of this sphere of the absolute privacy right makes the inadmissibility of evidence collected in violation thereof also absolute. Absolute right entails absolute prohibition on its violation.” This part of his note was cited by the five-member bench hearing petitions against the Inquiry Commission and we will turn to it again in a later part of this essay.
Presently, we will examine three hypothetical situations to see if a case can be made for warrantless surveillance and interception.
Situation one
A gang kidnapped a child and threatened his father of dire consequences if he informed the police, but the law enforcement agencies somehow came to know and recorded the phone calls, traced the location of the kidnappers, arrested them and rescued the child, but no authorisation was obtained, say, because the time was too short. The father of the child not only tolerated the call recording but even appreciated the police for doing so.
The act is still illegal, though the illegality may be overlooked or justified on the basis of ‘exigent circumstances’.
Situation two
A judge is approached for favour in a case and is offered a bribe. The call was recorded without prior authorisation.
Can the judge claim a breach of privacy? If the recording was made without legal authorisation (a warrant), it would be illegal and in the US, inadmissible in a court of law. If there was reasonable suspicion/belief for commission of a crime or prospect of one, a recording may not be made without a warrant, unless there are exigent circumstances.
The question before us is whether in Pakistan, this situation is covered by the concepts of “dignity of man” and “privacy of home” (Article 14 of the Constitution).
Some may argue that “privacy of home” is apparently narrower in scope than the fourth amendment right to privacy in the US. However, it may be recalled that in the Benazir Bhutto case above, the apex court held that the act of illegal tapping was a violation of Article 9 of the Constitution which guaranteed that “no person shall be deprived of life or liberty save in accordance with law.”
Relying on an earlier precedent of Shehla Zia vs WAPDA, it not only gave a wider meaning to the right to life which, thus, was not just confined to “the vegetative or animal life or mere existence from conception to death” but also included “all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally.” It further held that the right to life included “a right to have clean and incorruptible administration to govern the country and the right to have protection from encroachment on privacy and liberty.”
The supreme court gave a wider interpretation to “privacy of home” bringing it at par with the fourth amendment right to privacy in the US. Thus, it held: “It does not mean that except [at] home, [one’s] privacy is vulnerable and can be interfered [with] or violated. Home in the literal sense will mean a place of abode — a place where a person enjoys personal freedom and feels secure. The emphasis is not on the boundaries of home but the person who enjoys the right wherever he may be … ‘Home’ connotes the meaning of privacy, security and non-interference by outsiders … The term cannot be restricted to the privacy within the four walls of the home … A person is entitled to enjoy [such privacy] wherever he lives or works, inside the premises or in open land. Even the privacy of a person cannot be intruded in public places.”
The supreme court then linked the inviolability of privacy with the dignity of man and held: “If a man is to preserve his dignity, if he is to live with honour and reputation, his privacy whether in home or outside the home has to be saved from invasion and protected from illegal intrusion. The right conferred under Article 14 is not to any premises, home or office, but to the person, the man/woman wherever he/she may be.”
Added to these arguments of life, liberty, privacy and dignity is the cherished principle of due process of law to which we will turn at the end of this discussion.
Situation three
A relative of a judge is suspected of having connections with a political leader who has cases before that judge and it is also thought (without any evidence) that this relative influences the proceedings of those cases. The law enforcement agencies, or intelligence agencies, or someone else, records phone calls of this relative with a relative of the counsel of that political leader.
In addition to the above-mentioned reasons, recordings based on a hunch/chance that hundreds of hours of recordings might yield some incriminating information, of which only a ‘bit’ may be put forward as evidence, are illegal. As this situation does not fall into ‘exigent circumstance’, the act of recording will be illegal if there is no warrant for it.
If there was actual material on the basis of which the police had a reasonable suspicion/belief that something illegal was afoot, they should have applied for a warrant to have the calls recorded.
It is time now to discuss the implications of the due process clause.
Every action by the state against any individual, be it a convict, an accused or a suspect, must have a legal basis; every action by the government or the executive must be shown to have emanated from a legal norm. Without undermining the generality of this principle, the next part of the Article specifically applies the same principle to certain actions: “In particular, no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.”
Add to this, Article 9: “No person shall be deprived of life or liberty, save in accordance with law.” Even Article 14, which uses the phrase ‘privacy of home,’ mandates the existence of law before such privacy may be breached: “The dignity of man and, subject to law, the privacy of home, shall be inviolable.”
Justice Shah reached the same conclusion in his separate note in Justice Qazi Faez Isa’s case, and declared that the principle of “inadmissibility of the illegally collected evidence has developed mostly in the cases where there was a law that regulated a constitutional right, but that law was not followed or was violated in the process of collecting evidence.”
He elaborated the rationale of this principle in the following words: “The courts have held such evidence to be generally inadmissible, with few exceptions, mainly with the reason that the admission of such evidence would compromise the integrity of the judicial process and bring the administration of justice into disrepute. I concur in the principle, and see no hindrance in adopting it in our jurisdiction.”
He further noted that the illegally obtained information in that particular case was “without any enabling law” and this illegal act was “deliberate and conscious” and, hence, “did not fall within the exceptions thereto.”
Let us discuss two extreme examples and see if they can fall within such exceptions.
1. The ticking time bomb scenario
After a long time, a cricket match was being played between Pakistan and India at the Qaddafi Stadium Lahore. The stadium was jam-packed. Suddenly, an anonymous caller informed the security personnel that a time-bomb has been placed somewhere in the stadium. Evacuation would take too much time. The bomb may explode any moment. A suspect was caught and interrogated. He might have known the place where the bomb was placed but he would not tell. Could he be tortured to extract information about the bomb so as to save thousands of lives? Perhaps, yes (there were reasons to believe that he knew the place). Perhaps, no (he might have no connection with the matter). But when he was tortured, he gave information which led to the bomb.
Though initially some argued against the torture, later on, many overlooked the act of torture because resultantly, thousands of lives were saved. (Ends justified means? What if after torturing him, no information was obtained and later on it was proved that he was absolutely innocent?) Can this information be used against him as evidence? Certainly not, as Article 13(b) of the Constitution does not allow compelling a person to make a self-incriminating statement and Article 14(2) does not permit torture for extracting evidence.
2. Conversation of two suspected terrorists
Inmates usually have very little privacy protection as compared to the general population. This example is only for understanding the concept of illegally obtained evidence.
Two terror suspects had been captured. They were kept in one cell which was already bugged. They talked about some place where they had hidden some explosives. Their conversation was recorded. The place was raided and the explosives were found there. Though the legality of the bugging of the prison cell may be dubious, many precious lives were saved and, hence, it may be overlooked. But can this recording be used against these two persons as evidence of their guilt? The above principles would not allow it, unless the conditions mentioned in IFTA are fulfilled.
It may be recalled that two of these five judges (CJP Bandial and Justice Akhtar) were part of the seven-member majority that had overlooked this aspect and Justice Shah actually wrote a dissenting note in which he highlighted it inter alia. How could these two judges now rely on that note? Perhaps this question prompted the Inquiry Commission to refer to another passage from Justice Shah’s note in which he had mentioned exceptions to the principle of inadmissibility.
The truth remains that in the US, illegally obtained evidence is inadmissible (with possible exceptions). In India, it is admissible (with exceptions), though Indian commentators have pointed to the undeveloped state of the right to privacy in Indian law in 1973 and have opined that the time might be ripe today to adopt the exclusionary rule in India. Jurisprudence in Pakistan is still developing.
However, a case can be made for following the US model. Like the US, we have a written Constitution; and like the US constitution, ours has the due process clause which mandates that every action of the state against an individual must be shown to be based on some legal authority. (It may be noted that the argument of violation of due process is stronger than that of breach of the privacy of home). Moreover, Pakistan and the US both have similar colonial backgrounds and written constitutions. The record of protection of privacy rights in Pakistan is extremely poor, perhaps one of the poorest in the world, which is all the more reason exclusionary rule should be adopted.
“All intelligence agencies (including ISI, IB and MI) and the ISPR must not exceed their respective mandates. They cannot curtail the freedom of speech and expression and do not have the authority to interfere with broadcasts and publications, in the management of broadcasters/publishers and in the distribution of newspapers … intelligence agencies should monitor activities of all those who threaten the territorial integrity of the country and all those who undermine the security of the people and the State by resorting to or inciting violence … to best ensure transparency and the rule of law it would be appropriate to enact laws which clearly stipulate the respective mandates of the intelligence agencies.”
I rest my case here.
https://www.dawn.com/news/1762191/authenticity-legality-and-admissibility-are-audio-leaks-permissible-in-a-court-of-law
Authenticity, legality and admissibility:
Are audio leaks permissible in a court of law?
The record of protection of privacy rights in Pakistan is extremely poor, perhaps one of the poorest in the world, which is all the more reason for the exclusionary rule to be adopted.Muhammad Mushtaq Ahmad
June 30, 2023
Pakistan has witnessed a marked rise in audio leaks — recordings of private conversations — in political and judicial matters in recent months. While the veracity and legality of these leaks have been extensively debated on TV talk shows and publications, much of the discussion has only added to the confusion.
How are audios leaked? How does one confirm their veracity? What laws regulate audio recordings and their leaks? Can they be used as evidence in a court of law? This essay aims to clarify many of these questions.
The rise of audio leaks in 2023
Specifically since February 2023, Pakistan has witnessed a series of audio leaks, many of which relate one way or another to the superior judiciary. As references were also filed in the Supreme Judicial Council (SJC) against some of the judges implicated in these audio leaks and one audio allegedly contained a conversation of Justice Mazahir Ali Akbar Naqvi, many believed the SJC would take up these references and attempt to dispel all misgivings against the superior judiciary.However, Chief Justice of Pakistan (CJP) Umar Ata Bandial, who also happens to chair the SJC, not only avoided convening the SJC, but also included Justice Naqvi in his bench and later remarked that it was a “silent message”. In this background, the federal government constituted a three-member Commission of Inquiry on May 19, 2023, and nominated Justice Qazi Faez Isa, Senior Puisne Judge, Supreme Court of Pakistan, as its chair alongside the chief justices of the Balochistan High Court and Islamabad High Court (IHC) as the two other members.
In the commission’s first meeting held on May 22, it was declared that it would not function as a court of law and that it would, rather, work as a fact-finding commission. It specifically declared that it would not encroach upon the domain of the SJC. It also decided to keep the proceedings public so as to ensure transparency and to gain public trust.
However, as expected, soon after the commission’s first meeting, several petitions were filed in the supreme court under Article 184(3) of the Constitution. Three main objections were raised in these petitions: (i) that the CJP was not consulted by the government; (ii) that the commission’s Terms of Reference (TORs) overlapped with the SJC’s mandate; and (iii) that the commission’s TORs did not include determining the legality of the audio recordings.
A five-member bench of the supreme court headed by CJP Bandial, heard these petitions on May 26 and issued an injunction, restraining the commission from further proceeding into the matter. The commission, however, held its pre-scheduled meeting on the next day, in which the Attorney-General for Pakistan (AGP) read the order of the supreme court, after which in deference to that order, the commission adjourned its proceedings. Meanwhile, as the commission was arrayed as a party in two petitions, it decided to file a concise statement in the supreme court.
In this statement, the commission highlighted several lacunae in the court’s order and also explained its position on a few issues. For instance, it asserted that the Pakistan Commission of Inquiry Act, 2017, under which the commission was constituted, did not necessitate consultation with, or approval of, the CJP. It also commented, without giving a final verdict, on some aspects of the right to privacy of home.
It meant that the commission was open to hear arguments about the legality or admissibility of the recordings.
One may also point out here that although the TORs did not specifically mention it, the commission could claim authority for this purpose on the basis of at least two of the TORs: (iii) empowered the commission to determine the liability of “all persons named in the alleged audio leaks” under the Pakistan Penal Code (PPC) or “any other law” — this would necessitate determination of the legality as well as admissibility of these audios; (ix) empowered the commission to look into “any matter ancillary or incidental thereto” which it deemed fit to inquire into “in the interest of justice” — this would, of course, include questions about the legality and admissibility of these audios.
In the meanwhile, a committee of the National Assembly summoned Mian Najam Saqib, son of former CJP Mian Saqib Nisar, in connection with some of the audios, but he preferred a writ petition in the IHC, which was heard by Justice Babar Sattar on June 1, 2023. After hearing the arguments of Sardar Latif Khan Khosa, senior advocate of the supreme court and the petitioner’s counsel, the case was admitted for regular hearing and notices were issued. “Who records the audios?” questioned Justice Sattar.
Authenticity of the recordings
In the famous video scandal case of judge of accountability court, Muhammad Arshad Malik, a three-member bench of the supreme court comprising CJP Bandial, Justice Asif Saeed Khan Khosa and Justice Azmat Saeed framed the following issues inter-alia: “How is the relevant video to be established as a genuine piece of evidence? How is the relevant video, if established to be a genuine piece of evidence, to be proved before a court of law? What is the effect of the relevant video?” (Ishtiaq Ahmed Mirza vs the Federation of Pakistan).On the issue of genuineness of the audio/video recordings, the court noted: “The advancement of science and technology has now made it very convenient and easy to edit, doctor, superimpose or photoshop a voice or picture in an audio tape or video and, therefore, without a forensic examination, audit or test of an audio tape or video, it is becoming more and more unsafe to rely upon the same as a piece of evidence in a court of law”.
After detailed analysis of the relevant law and a long series of precedents, the court determined a few prerequisites before the audio/video could be deemed genuine: “No audio tape or video can be relied upon by a court until the same is proved to be genuine and not tampered with or doctored”. For this purpose, “a forensic report prepared by an analyst of the Punjab Forensic Science Agency in respect of an audio tape or video is per se admissible in evidence in view of the provisions of section 9(3) of the Punjab Forensic Science Agency Act, 2007.”
It is worth noting here that Article 164 of the Qanun-e-Shahadat, 1984, empowers the court to allow any evidence, which may have become available “because of modern devices or techniques.” However, the supreme court pointed out: “Even where a court allows an audio tape or video to be produced in evidence, such audio tape or video has to be proved in accordance with the law of evidence.”
Among the requirements of the law of evidence referred to by the supreme court, the most important are those relating to ‘primary’ and ‘secondary’ evidence. The supreme court did not examine the admissibility of the recordings if the content thereof was covered by the provisions of the law of evidence about privileged communication. The reason was obvious: this was not the issue in that particular case. This judgement has been relied upon later in a few other cases as well, most important being The State vs Ahmed Omar Sheikh judgement.
We will not further discuss this aspect of the issue and will, instead, presume in the discussion that follows that the recordings are authentic — that their authenticity is either not denied by the person whose recordings they are purported to be, or all the requirements for establishing authenticity such as forensic evidence, chain of custody and the like have been fulfilled.
Still, such recordings may not be legal; or if they are both authentic and legal, they may still be inadmissible. But perhaps the most important question is: if a recording is authentic but illegal, is it still admissible as evidence in a court of law? This lies at the heart of the controversy about the audio-leaks. The Inquiry Commission and the supreme court are both expected to address this question.
Let us now turn to the question of legality, which must be examined separately from the question of admissibility.
Legality of the recordings
We can imagine various possibilities.1. Recording with consent
According to the Qanun-e-Shahadat, if person A consents to a recording, there can still be circumstances where it may be illegal to use the recording, for instance when the content is privileged such as lawyer/client or doctor/patient communications.
If the recording has been made with consent, and is also not privileged, it may still be illegal to use it. The principle here is one called ‘legitimate expectation of privacy’ (or the ‘expectation principle’), which means in settings where one would expect their interactions to remain private, it would not be allowed to use a record of that interaction for other purposes. An example would be person A recording person B with B’s consent in a private setting at their home, then using the recording for commercial purposes.
The scope of the expectation principle is much wider in the United States than in many other jurisdictions. A glaring example is the judgement in Missouri vs McNeely, in which the US supreme court determined the parameters of exceptions from the fourth amendment right to privacy in exigent circumstances. It held that the police must get a warrant before conducting a blood test for a drunken-driving suspect. It then gave details of what constitutes the ‘exigent circumstance’ which may allow deviation from this principle.
The expectation principle would still also be applicable if the one whose statement is recorded is a public official, or a relative of a public official, even if the recording pertains to an official matter.
2. Recording without Consent
We may subdivide this into two categories:
a. When it is done in a routine manner
An example is CCTV footage. In the Ishtiaq Ahmed Mirza case mentioned above, while drawing a distinction between what is done in a routine manner and what is not, it was held: “The person recording an audio tape or video may be a person whose part of routine duties is recording of an audio tape or video and he should not be a person who has recorded the audio tape or video for the purpose of laying a trap to procure evidence.” For this distinction, reliance was made on an earlier case — Hakim Ali Bhatti vs Qazi Abdul Hakim, 1986.
The expectation principle would also apply if the CCTV camera has been installed in a public place. The footage may be used for various purposes, even commercial ones if the installation was legal to begin with. If it has been installed in a private setting, it may not be used.
b. When it is not done in a routine manner
Phone call recordings and wiretapping fall in this category.
This may be further subdivided into two categories:
i. Where it is legally authorised, that is, all permissions and requirements have been obtained/fulfilled.
ii. Where it is done without legal authorisation
In the former, the act of recording will be legal, though its publication may separately require legal authorisation. In the latter, the act of recording and its publication both are illegal. The most relevant case for this purpose is Mohtarma Benazir Bhutto vs President of Pakistan in which the supreme court examined the validity of the dissolution of the National Assembly by the then-president, Farooq Leghari.
Among the allegations against prime minister Benazir Bhutto’s government was “under the orders of the prime minister, telephones of the judges of the supreme court, leaders of the political parties and high ranking military and civil officials were being tapped and transcripts sent to the prime minister for reading.”
The supreme court held: “The tapping or eavesdropping of citizens to whatever class, group or status they may belong, is not only an offence under the Telegraph Act, but it also offends against Articles 9 [right to life and liberty] and 14 [dignity of man and the privacy of home] of the Constitution.”
In the US, the doctrine of ‘exclusionary rule’ is applied in this situation which excludes illegally obtained information and necessitates warrants that are issued on the basis of ‘probable cause’ — law enforcement agencies must have reasonable grounds to believe that criminal activity is afoot or has been committed.
As noted above, in exigent circumstances, warrantless searches or recordings may be allowed. Another exception could be ‘the danger of destruction of evidence’ when the evidence (of a crime) is in ‘plain view’ of the officer or when the officer is in hot pursuit of a suspect.
In Pakistan, in such situations, the standard of ‘reasonable belief or suspicion’ is used. For instance, Section 22A, Code of Criminal Procedure, 1898, while mentioning the powers of Justices of Peace, says that they may call the police to aid them “in taking or preventing the escape of any person who has participated in the commission of any cognisable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having so participated.”
A more relevant provision is found in section 47 of this code, which states: “If any person acting under a warrant of arrest, or any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into, or is within, any place, the person residing in, or being in charge of, such place shall, on demand of such person acting as aforesaid or such police officer, allow him free ingress thereto, and afford all reasonable facilities for a search therein.”
Similarly, section 53A, which has been recently added to this code, allows medical examination of a rape or sexual abuse suspect: in cases where “there are reasonable grounds for believing that an examination of the arrested person will afford evidence as to the commission of such offence.” There are many other provisions which use this standard.
One significant law in this regard is the so-called Investigation for Fair Trial Act, 2013, which allows surveillance of a person suspected of involvement in a terrorist or anti-state activity. It not only mandates notifying an authorised officer, but also gives an elaborate procedure for issuance and execution of warrants for such surveillance against a suspected person. It applies the standard of ‘reasonable belief’ and uses phrases such as “a reasonable threat” and “possibility of an attempt to commit a scheduled offence”. It also lays down specific conditions for admissibility of the material and information obtained during investigation.
Apart from this very narrow and specific legislation, there is no other law in Pakistan that allows surveillance and interception. This is why Justice Syed Mansoor Ali Shah declared in the famous Justice Qazi Faez Isa vs The President of Pakistan: “Intelligence agencies therefore do not have a carte blanche to probe into the lives of ordinary men and women of this country. These agencies are regulated by law and are subject to law.”
At the same time, he also examined “surveillance where there is no law” and concluded: “Besides this limited scope under the IFTA, no other law regulates the fundamental right of privacy of citizens and allows probe into their lives through surveillance and interception. Thus, in the remaining sphere the right to privacy is absolute, until law is enacted to regulate it.
The violation of this sphere of the absolute privacy right makes the inadmissibility of evidence collected in violation thereof also absolute. Absolute right entails absolute prohibition on its violation.” This part of his note was cited by the five-member bench hearing petitions against the Inquiry Commission and we will turn to it again in a later part of this essay.
Presently, we will examine three hypothetical situations to see if a case can be made for warrantless surveillance and interception.
Warrantless surveillance and interception
The following three situations will help us understand if such principles and standards legitimise warrantless audio/video recording and/or their publication.Situation one
A gang kidnapped a child and threatened his father of dire consequences if he informed the police, but the law enforcement agencies somehow came to know and recorded the phone calls, traced the location of the kidnappers, arrested them and rescued the child, but no authorisation was obtained, say, because the time was too short. The father of the child not only tolerated the call recording but even appreciated the police for doing so.
The act is still illegal, though the illegality may be overlooked or justified on the basis of ‘exigent circumstances’.
Situation two
A judge is approached for favour in a case and is offered a bribe. The call was recorded without prior authorisation.
Can the judge claim a breach of privacy? If the recording was made without legal authorisation (a warrant), it would be illegal and in the US, inadmissible in a court of law. If there was reasonable suspicion/belief for commission of a crime or prospect of one, a recording may not be made without a warrant, unless there are exigent circumstances.
The question before us is whether in Pakistan, this situation is covered by the concepts of “dignity of man” and “privacy of home” (Article 14 of the Constitution).
Some may argue that “privacy of home” is apparently narrower in scope than the fourth amendment right to privacy in the US. However, it may be recalled that in the Benazir Bhutto case above, the apex court held that the act of illegal tapping was a violation of Article 9 of the Constitution which guaranteed that “no person shall be deprived of life or liberty save in accordance with law.”
Relying on an earlier precedent of Shehla Zia vs WAPDA, it not only gave a wider meaning to the right to life which, thus, was not just confined to “the vegetative or animal life or mere existence from conception to death” but also included “all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally.” It further held that the right to life included “a right to have clean and incorruptible administration to govern the country and the right to have protection from encroachment on privacy and liberty.”
The supreme court gave a wider interpretation to “privacy of home” bringing it at par with the fourth amendment right to privacy in the US. Thus, it held: “It does not mean that except [at] home, [one’s] privacy is vulnerable and can be interfered [with] or violated. Home in the literal sense will mean a place of abode — a place where a person enjoys personal freedom and feels secure. The emphasis is not on the boundaries of home but the person who enjoys the right wherever he may be … ‘Home’ connotes the meaning of privacy, security and non-interference by outsiders … The term cannot be restricted to the privacy within the four walls of the home … A person is entitled to enjoy [such privacy] wherever he lives or works, inside the premises or in open land. Even the privacy of a person cannot be intruded in public places.”
The supreme court then linked the inviolability of privacy with the dignity of man and held: “If a man is to preserve his dignity, if he is to live with honour and reputation, his privacy whether in home or outside the home has to be saved from invasion and protected from illegal intrusion. The right conferred under Article 14 is not to any premises, home or office, but to the person, the man/woman wherever he/she may be.”
Added to these arguments of life, liberty, privacy and dignity is the cherished principle of due process of law to which we will turn at the end of this discussion.
Situation three
A relative of a judge is suspected of having connections with a political leader who has cases before that judge and it is also thought (without any evidence) that this relative influences the proceedings of those cases. The law enforcement agencies, or intelligence agencies, or someone else, records phone calls of this relative with a relative of the counsel of that political leader.
In addition to the above-mentioned reasons, recordings based on a hunch/chance that hundreds of hours of recordings might yield some incriminating information, of which only a ‘bit’ may be put forward as evidence, are illegal. As this situation does not fall into ‘exigent circumstance’, the act of recording will be illegal if there is no warrant for it.
If there was actual material on the basis of which the police had a reasonable suspicion/belief that something illegal was afoot, they should have applied for a warrant to have the calls recorded.
It is time now to discuss the implications of the due process clause.
The issue of admissibility
Article 4 of the Constitution lays down the most significant and fundamental norm of the legal system: “To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen wherever he may be, and of every other person for the time being within Pakistan.”Every action by the state against any individual, be it a convict, an accused or a suspect, must have a legal basis; every action by the government or the executive must be shown to have emanated from a legal norm. Without undermining the generality of this principle, the next part of the Article specifically applies the same principle to certain actions: “In particular, no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.”
Add to this, Article 9: “No person shall be deprived of life or liberty, save in accordance with law.” Even Article 14, which uses the phrase ‘privacy of home,’ mandates the existence of law before such privacy may be breached: “The dignity of man and, subject to law, the privacy of home, shall be inviolable.”
Justice Shah reached the same conclusion in his separate note in Justice Qazi Faez Isa’s case, and declared that the principle of “inadmissibility of the illegally collected evidence has developed mostly in the cases where there was a law that regulated a constitutional right, but that law was not followed or was violated in the process of collecting evidence.”
He elaborated the rationale of this principle in the following words: “The courts have held such evidence to be generally inadmissible, with few exceptions, mainly with the reason that the admission of such evidence would compromise the integrity of the judicial process and bring the administration of justice into disrepute. I concur in the principle, and see no hindrance in adopting it in our jurisdiction.”
He further noted that the illegally obtained information in that particular case was “without any enabling law” and this illegal act was “deliberate and conscious” and, hence, “did not fall within the exceptions thereto.”
Let us discuss two extreme examples and see if they can fall within such exceptions.
1. The ticking time bomb scenario
After a long time, a cricket match was being played between Pakistan and India at the Qaddafi Stadium Lahore. The stadium was jam-packed. Suddenly, an anonymous caller informed the security personnel that a time-bomb has been placed somewhere in the stadium. Evacuation would take too much time. The bomb may explode any moment. A suspect was caught and interrogated. He might have known the place where the bomb was placed but he would not tell. Could he be tortured to extract information about the bomb so as to save thousands of lives? Perhaps, yes (there were reasons to believe that he knew the place). Perhaps, no (he might have no connection with the matter). But when he was tortured, he gave information which led to the bomb.
Though initially some argued against the torture, later on, many overlooked the act of torture because resultantly, thousands of lives were saved. (Ends justified means? What if after torturing him, no information was obtained and later on it was proved that he was absolutely innocent?) Can this information be used against him as evidence? Certainly not, as Article 13(b) of the Constitution does not allow compelling a person to make a self-incriminating statement and Article 14(2) does not permit torture for extracting evidence.
2. Conversation of two suspected terrorists
Inmates usually have very little privacy protection as compared to the general population. This example is only for understanding the concept of illegally obtained evidence.
Two terror suspects had been captured. They were kept in one cell which was already bugged. They talked about some place where they had hidden some explosives. Their conversation was recorded. The place was raided and the explosives were found there. Though the legality of the bugging of the prison cell may be dubious, many precious lives were saved and, hence, it may be overlooked. But can this recording be used against these two persons as evidence of their guilt? The above principles would not allow it, unless the conditions mentioned in IFTA are fulfilled.
War of words between the supreme court and the Inquiry Commission
Interestingly, the five-member bench of the supreme court, while issuing an injunction against the Inquiry Commission cited in its short order dated May 26, 2023, some of the passages from the separate note of Justice Shah about inadmissibility of illegally obtained information.It may be recalled that two of these five judges (CJP Bandial and Justice Akhtar) were part of the seven-member majority that had overlooked this aspect and Justice Shah actually wrote a dissenting note in which he highlighted it inter alia. How could these two judges now rely on that note? Perhaps this question prompted the Inquiry Commission to refer to another passage from Justice Shah’s note in which he had mentioned exceptions to the principle of inadmissibility.
The truth remains that in the US, illegally obtained evidence is inadmissible (with possible exceptions). In India, it is admissible (with exceptions), though Indian commentators have pointed to the undeveloped state of the right to privacy in Indian law in 1973 and have opined that the time might be ripe today to adopt the exclusionary rule in India. Jurisprudence in Pakistan is still developing.
However, a case can be made for following the US model. Like the US, we have a written Constitution; and like the US constitution, ours has the due process clause which mandates that every action of the state against an individual must be shown to be based on some legal authority. (It may be noted that the argument of violation of due process is stronger than that of breach of the privacy of home). Moreover, Pakistan and the US both have similar colonial backgrounds and written constitutions. The record of protection of privacy rights in Pakistan is extremely poor, perhaps one of the poorest in the world, which is all the more reason exclusionary rule should be adopted.
Laws for specifying the mandate of agencies
Undoubtedly, the working of the intelligence and security agencies is very important. They may deem surveillance of public office holders necessary for the protection of national interest. However, the Constitution guarantees due process and protection of fundamental rights. Legislation is the only way to strike a balance between these competing goals. If the working of the agencies is not regulated through legislation and due process is not ensured, all fundamental rights will be wasted. The following excerpts from Justice Isa, in the Faizabad Dharna Case, amply show this:“All intelligence agencies (including ISI, IB and MI) and the ISPR must not exceed their respective mandates. They cannot curtail the freedom of speech and expression and do not have the authority to interfere with broadcasts and publications, in the management of broadcasters/publishers and in the distribution of newspapers … intelligence agencies should monitor activities of all those who threaten the territorial integrity of the country and all those who undermine the security of the people and the State by resorting to or inciting violence … to best ensure transparency and the rule of law it would be appropriate to enact laws which clearly stipulate the respective mandates of the intelligence agencies.”
I rest my case here.
https://www.dawn.com/news/1762191/authenticity-legality-and-admissibility-are-audio-leaks-permissible-in-a-court-of-law
