Breach of privacy

Published February 24, 2023
The writer is a lawyer based in Lahore.
The writer is a lawyer based in Lahore.

IN 1628, jurist Edward Coke observed “Every man’s house is his castle”. Later, William Pitt elaborated on this principle: “The poorest man may in his cottage bid defiance to all the forces of the Crown — the wind may blow through it — the rain may enter — but the King of England cannot enter.”

This doctrine sets limits on how and when law-enforcement agencies may enter a person’s house. It lays down that any intrusion into the personal space of an individual without judicial or statutory sanction is illegal.

In Pakistan, though, illegal surveillance through phone tapping is rampant. Over the last few months, media platforms have been inundated with leaked clips of audio conversations of high-profile figures.

It is uncertain if the conversations are genuine or have been tampered with. Seemingly, they have been retrieved from a pool of larger data, obtained as a result of the systemic tapping of phones. Interestingly, the previous and current prime ministers are on the list of victims.

Without going into the contents of the leaks, one particular issue needs serious discussion, ie, the acceptability and normality of illegal surveillance in society. Democracies governed by the rule of law believe that the state should not arbitrarily intrude into certain aspects of life.

The rights to privacy and dignity guaranteed under Article 14 of our Constitution are directly infringed whenever the state surveils an individual. The right to have a conversation on the phone in the sanctum of one’s home or office is the right to privacy.

To appreciate this argument, it is important to understand the philosophy behind constitutional protections. The right to privacy is an inalienable right and is inseparable from the human personality. It can only exist on the basis that each individual possesses the right to a private space in which the human personality can develop.

Privacy enables individuals to guard their beliefs, thoughts, expressions and ideas. It ensures that an individual can lead a life of dignity by securing this inner space from state intrusions.

Who are these actors that are above the law?

This right is implicit in the right to life and liberty guaranteed under Article 9 of the Constitution. Life and liberty are of true substance only when they can be enjoyed with privacy. The right to life and liberty demands freedom from unauthorised violations of one’s private life.

Phone tapping, from time to time, has drawn the attention of the apex court which has criticised it strongly. Decades ago, justice Saleem Akhtar, while hinting at illegal tapping observed that “the actions in question will make a respectable nation hang its head in shame”.

More recently, the apex court held that intrusion by the state into the sanctum of one’s personal space, other than for the larger public interest, are violative of the constitutional guarantees of life, liberty and dignity.

Illegal surveillance by the state has the effect of intruding into the private lives of citizens, which is tantamount to intruding into the very personhood, privacy and personal liberty of an individual.

Remarkably, some of the recent leaked calls were made over what was supposed to be a secure phone line in the Prime Minister’s Office. Nevertheless, they were tapped. Clearly, the elements behind such audacious tapping conduct themselves in a manner outside the command, authorisation and even knowledge of the prime minister of Pakistan.

A more disturbing question is: who are these actors who are above the law and outside the command of even the prime minister of the country, and who resort to such illegal surveillance with impunity?

How can such patently illegal activity take place without anyone noticing it? Reportedly, the previous army chief said that he recorded his meetings with ex-prime minister Imran Khan. If true, this should be reason enough for prosecution.

Our collective response to such surveillance should be to hold those behind it accountable. In a truly democratic dispensation, indiscriminate spying on individuals is barred. It is correct that surveillance is the job of the law-enforcement agencies but it is only allowed under exceptional circumstances, and that too, by adhering to procedural safeguards and prior court permission.

Surveillance to gather information for blackmailing, coercion, settling scores or selling a political agenda is a calculated assault on our constitutional freedoms. Such reprehensible episodes of surveillance invalidate the notion of the rule of law and support the argument that there are rogue elements who operate outside the confines of the law and are capable of holding the state hostage. It is an exercise in totalitarianism.

The writer is a lawyer based in Lahore.

Published in Dawn, February 24th, 2023

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