Constitution and right to privacy

The Supreme Court of Pakistan, in Mohtarma Benazir Bhutto and Others v President of Pakistan and Others (1998 PLD SC 388), examined the validity of telephone tapping and eavesdropping in the context of the inalienable fundamental right to privacy guaranteed by Article 14(1) of the 1973 Constitution of Islamic Republic of Pakistan (“the Constitution”).

In the absence of any law to regulate these, the Court held that phone-tapping and snooping techniques violated fundamental right to privacy and are tantamount to an intrusion into individuals’ privacy, causing injury to their dignity. This judgement of 1998 authoritatively settles jurisprudence on the issues of surveillance and since then has become a sine qua non of fundamental rights. Article 14(1) entitled ‘Inviolability of dignity of man etc.’ reads: “The dignity of man and, subject to law, the privacy of home, shall be inviolable”.

However, despite the above and numerous court judgements, phone-tapping and surveillance of parliamentarians, journalists, politicians, public officials, including judiciary, continue unashamedly. It is also unfortunate that there exists a lack of cohesion and inconsistency on the part of courts regarding application of the privacy rule. The courts are accused of selective while interpreting privacy laws.

Leakages of alleged telephonic conversation of high-profile judicial and political personnel, their relatives, and individuals otherwise connected with them are dominating the country’s political landscape these days and are now available to public through social and electronic media with regular intervals. This has stirred a new debate about its motive, impact, acceptability as evidence in support of any point of view, and most importantly the legality and admissibility of the act of recording and unlawfully releasing such conversations without the knowledge/consent of individuals involved.

In the case of honourable Justice Qazi Faez Isa, he and his family were subject to unlawful surveillance. The honourable judge and his family were not only victims of sensitive data breach but also subjected to surveillance within and outside the country.

According to a claim by a journalist, even a spy agency was hired abroad to hunt down his son and daughter. The court, while hearing the presidential reference against Justice Qazi Faez Isa, directed the Commissioner Inland Revenue to issue “appropriate notices under the Income Tax Ordinance, 2001” to Justice’s wife and children. It also directed them “to offer an explanation regarding the nature and source of the funds whereby the three properties in the United Kingdom in the names of the spouse and the children were acquired”.

Our political and judicial landscape is full of instances of audio/video leaks. During the 90s, an audio call between the Chairman of the then Ehtesab (Accountability) Bureau, Saifur Rehman and a sitting judge of Lahore High Court surfaced.

In the said audio leak, the judge was purportedly taking some instructions from Ehtesab Bureau chief for speedy and harsh punishment to Mohtarma Benazir Bhutto and Asif Ali Zardari (later became President of Pakistan). In the wake of this video leak presented in the Supreme Court, the judge had to resign from Lahore High Court.

Another incident was that of an accountability court judge, who sentenced three-time elected prime minister to jail. The said judge later found confessing in a leaked video of being blackmailed and pressurized to give the said verdict. Though the Lahore High Court after this confession removed the judge from his post, yet the conviction given by him still stands.

Recently, an audio call (its bona fide yet not established) involving some family member of incumbent Chief Justice of Pakistan (CJP) surfaced, expressing allegedly political liking for Imran Khan. Accusations of alleged speedy facilitation to Imran Khan in various cases are part of a well-designed campaign, currently fueling rifts and polarisation in society.

The aim is tarnishing the public image of higher judiciary. The main objective is raising doubts about the country’s justice system, with no one questioning as to how illegally obtained information can be used as evidence or even allowed to be shared. First of all those who recorded and released these unlawfully must be punished.

In the prevailing highly alarming scenario, the fact remains that Pakistan has yet to introduce a comprehensive data privacy law.

None of the political parties when in power tried to enact the same. Though there is a provision in the Constitution regarding the protection of dignity of man, however, precedents set by the courts are at variance and do not corroborate the prevailing international standards.

The Investigation for Fair Trial Act, 2013(IFTA 2013) regulates the powers of law-enforcement agencies and intelligence agencies for collection of evidence by means of modern techniques and devices.

The provisions of IFTA 2013 authorize, subject to issuance of warrant of surveillance of or interception, designated agencies to collect evidence through interception of emails, short message service (SMS), Internet Protocol Detail Record (IPDR), Call Detail Record (CDR) and any form of computer-based or cellphone-based communication and voice analysis. However, the scope of IFTA 2013 is limited to the investigation of terrorism-related offences identified in various laws and specified thereunder.

The U.S Electronic Communication of Privacy Act, 1986, 18 U.S Code Chapter 119—Wire and Electronic Communication Interception and Interception of Oral Communications—highlights instances where interception of communication is permissible which include any illegal activity or is a cause of threat to national security. The ideal situation for interception of communication requires proper authorization followed by court orders. However, in Pakistan, the role of the courts is nonexistent in the matter.

In any civilized society, disclosures through video and audio tapes are considered plausible evidence to initiate proceedings of misconduct against judges as well as other public officials. In Pakistan, a weak accountability system of judges with extensive administrative with the CJP has shaken the trust of common people in higher judiciary.

We must realize that the right of privacy is not absolute. We should stop giving blanket immunity in the name of personal privacy to those who, regardless of their affiliations, are involved in destabilizing the state and smearing the image of our institutions as well as the country.

(Huzaima Bukhari & Dr Ikram Haq, lawyers, and partners of Huzaima, Ikram & Ijaz, are Adjunct Faculty at the Lahore University of Management Sciences (LUMS), members of the Advisory Board and Visiting Senior Fellows of the Pakistan Institute of Development Economics (PIDE). Abdul Rauf Shakoori is a corporate lawyer based in the USA and an expert in ‘White Collar Crimes and Sanctions Compliance’)

Copyright Business Recorder, 2023