The legal landscape for privacy and surveillance in Pakistan
Akhund Forbes, Karachi
In Pakistan the right to privacy is recognised as a fundamental right in Article 14 of the 1973 Constitution. The courts have emphasised that surveillance, including phone tapping and eavesdropping, not only infringe on privacy but also affect the constitutional right to life. In landmark cases such as the Mohtarma Benazir Bhutto Case, the Supreme Court declared surveillance to be illegal, immoral and unconstitutional, with no legal justifications. The Court further emphasised that privacy extends beyond the boundaries of one’s home and includes public spaces, and any illegal intrusion or invasion should be forbidden to preserve the dignity of individuals. The right to freedom of speech is also affected by electronic surveillance activities, as protected under Article 19 of the Constitution. The Supreme Court has consistently held that conversations over the telephone are private and protected by the Constitution. Recent legal disputes, such as Justice Qazi Faez Isa v President of Pakistan, have raised questions about the violation of citizens’ privacy rights. While some judges deemed certain actions, such as obtaining property records from public records, as lawful and not violating privacy, dissenting opinions argued that such surveillance without legal authorisation is a violation of fundamental rights and the constitutional rights of citizens.
Pakistan’s international obligations
Pakistan is a signatory to multiple ratified international instruments regarding the privacy of citizens. The Universal Declaration on Human Rights, in Article 12, declares that people are not to be subjected to arbitrary interference with their privacy. The International Covenant on Civil and Political Rights also recognises the right to privacy in Article 17. Pakistan has also ratified the Convention on the Rights of the Child which safeguards the privacy rights of children through Article 16. The Cairo Declaration on Human Rights in Islam, signed by Pakistan, includes provisions in Article 18 which protect the privacy of individuals and impose a duty on states to respect and safeguard citizens’ privacy. These international instruments affirm the importance of privacy and impose obligations on Pakistan to uphold and protect this fundamental right.
Privacy and surveillance laws in Pakistan
State surveillance in Pakistan dates back to the 19th century, when the Telegraph Act, 1885 initially empowered the government with the authority to intercept messages and take control of licensed telegraphs in the interest of public safety or during emergencies. The Federal Investigation Agency Act, 1974, empowers the Federal Investigation Agency to prevent and detect various crimes, including offences under the Pakistan Penal Code, Official Secrets Act, and Prevention of Corruption Act. With unprecedented advancements in technology, the Pakistan Telecommunication (Re-organisation) Act, 1996, established a broader framework for surveillance and interception, allowing the government to authorise individuals or agencies for the interception of telecommunication.
Surveillance in Pakistan is currently governed by several laws. The Investigation for Fair Trial Act, 2013, permits access to various forms of communication, including data, emails and telephone calls, with a judicial warrant. Investigative agencies, under this Act, do not possess overarching powers to monitor private communications, and are required to follow a due process to obtain a judicial warrant for performing surveillance of individuals.
The Prevention of Electronic Crimes Act, 2016, grants the Pakistan Telecommunications Authority (PTA) the power to block or remove information on the internet. The Act also allows for real-time collection and recording of data with court approval and permits the sharing of electronic communication or data with foreign governments or agencies. Furthermore, the Monitoring and Reconciliation of Telephony Traffic Regulations, 2010, require providers to establish systems for real-time monitoring and recording of network traffic. These regulations have effectively banned the use of encryption software such as VPNs and granted PTA the authority to monitor all internet traffic through a monitoring system which internet service providers (ISPs) are mandated to install. However, there is currently no blanket ban on encryption software as individual users and businesses can obtain approval from the PTA for the use of VPN software. Therefore, the state exercise of strict control over the privacy of citizens is not entire carte blanche, as interception and surveillance is only permitted by law where there is a threat to national security through terrorist activities and misinformation.
The legal landscape for privacy and surveillance in Pakistan is complicated and evolving. On the one hand, the Constitution of Pakistan recognises the right to privacy as a fundamental right, and recent cases have highlighted the need for a robust legal framework to protect citizens’ privacy rights. On the other, law enforcement and intelligence agencies are known to conduct heavy surveillance of individuals due to the ever-increasing threat of terrorist activities. The terrorist attack on Army Public School in Peshawar in 2016 is one of the many incidents cited to call for stricter surveillance. While the Investigation for Fair Trial Act, 2013 allows for surveillance through a legal process, stricter enforcement of this law is required to ensure the protection of Pakistanis’ rights to privacy while balancing these rights with protecting the national security and integrity of Pakistan. There is a need for clear guideline to ensure that surveillance is conducted within legal boundaries and respects individuals’ privacy.