The Act, as it is framed, makes provision for discrimination between persons falling, qua its terms, in the same class, and it does so in such manner as to render it impossible for the Courts to determine, in a particular case, whether it is being applied with strict regard to the requirements of Article 5 (1) of the Constitution.”[8]
When read together these classic judgments from our apex court leave no room for arbitrary or badly defined enactments, let alone executive actions which proceed on tenuous interpretations of statutes that have no relation to the realities of cyberspace.
The Constitution of Islamic Republic of Pakistan, 1973 under Article 14 in the chapter of Fundamental Rights, recognizes right of privacy as a fundamental right:
“14. Inviolability of dignity of man, etc. –(1) The dignity of man and, subject to law, the privacy of home, shall be inviolable. (2) No person shall be subjected to torture for the purpose of extracting evidence.” In the Benazir Bhutto Case, the Supreme Court defined privacy as under:
“The provision of Article 14 guarantees the dignity of man and subject to law, the privacy of home etc. Since the right of dignity of man has been guaranteed by the Constitution itself, therefore any law that violates this right will per se be unconstitutional. Privacy of home is also guaranteed, but this protection is subject to law.
Eavesdropping, tapping, stealthily photographing inside the house are invasions of privacy and as such are not permissible under the Constitution as well as in Islam as held by the superior courts in Pakistan while interpreting Article 14.”[9]
Compare this clear pronouncement to the existing paradigm of surveillance in Pakistan. What data can the government access? According to the Investigation of Fair Trial Act (“Act”) for example, the government can access “data, information or material in any documented form … through audio visual device, CCTV, still photography, bugging, observation or any mode of modern devices or techniques obtained under the Act … documents, papers, pamphlets, booklets” for surveillance. The government can also intercept “emails, SMS, internet protocol detail record, call detail record and any form of computer based or cell phone based communication. It also includes any means of communication using wired/wireless/internet protocol-based media/gadgetry.
This is in a nutshell the case that the present writer has argued before the Lahore High Court in WP 958/2013 Bytes For All v. Federation of Pakistan as well as 11786/2013 Bytes For All v. Federation Pakistan. The former challenges internet censorship in general, inter alia the ban on YouTube, while the latter challenges the use of “FinSpy” software for surveillance by Pakistan Telecommunications Company Limited.
Sources
[1] http://qz.com/142923/pakistan-might-remain-the-only-country-in-south-asia-without-3g-for-a-while-longer/
[2] http://propakistani.pk/2013/08/01/delay-in-3g-auction-would-not-be-permitted-supreme-court/
[3] http://techliberation.com/2013/09/18/pakistans-statement-on-nsa-surveillance-human-rights-and-internet-governance/
[4] Section 295-C of the Pakistan Penal Code, 1860
[5] Jamat-i-Islami Pakistan v. Federation of Pakistan (PLD 2000 SC 111)
[6] Pakistan Tobacco Co. Ltd. vs. Government of NWFP (PLD 2002 SC 460)
[7]Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445),
[8] Waris Meah v. State (PLD 1975 SC (Pak)157)
[9] Benazir Bhutto Vs. President of Pakistan PLD 1998 SC 388 (502, 565 & 606)
Yasser Latif Hamdani is a lawyer practising in the High Courts at Lahore, Islamabad and Peshawar. He has most notably represented Bytes For All in challenging internet censorship and surveillance.
Privacy and Internet Freedom