II. Constitutional provisions for privacy
The 1973 Constitution of Pakistan evolved as a result of a consultative process and unanimity of opinion among the parliamentary leaders of the time.
Article 4 of the 1973 Constitution recognises the right of every citizen and of every other person for the time being within the Country to be protected and treated in accordance with the law. Article 4(2) disallows any action detrimental to the life, liberty, body, reputation, or property of any person to be taken except in accordance with the law.
In the section headed "fundamental rights", the 1973 constitution continues:
No Person shall be deprived of life or liberty save in accordance with law."
The constitution identifies the right to privacy of a person and the inviolability of dignity of every person in Pakistan to be a fundamental right, thus guaranteeing the privacy of home [Article 14 (1) Inviolability of dignity of man]:
The dignity of man, subject to law, the privacy of home, shall be inviolable."
Thus in Pakistan's constitution the right to privacy is tightly linked to the protection of dignity.
It should be noted that the Constitution provides the requisite framework that the country's laws are based on or derived from. It is a parent document supporting the generation of sub-documents that govern the laws, rules, and regulations of a country. These laws, rules, and regulations can either be general, i.e., having an impact on every person in the country (such as the Pakistan Penal Code of 1860 and the Freedom of Information Ordinance 2002), or sector-specific (such as the Press Council of Pakistan Ordinance of 2002, the Banking Companies Rules of 1963, and the PM&DC code of ethics). On whatever tier the law is enunciated, the effectiveness of the devised law is dependent upon its submission to the parent document, i.e. the 1973 Constitution of Pakistan. No law, rule or regulation of Pakistan can, in any case, be directly or indirectly in contradiction to the Constitution.
The Constitution, meanwhile, clearly states in Article 8 that laws are void that are inconsistent or in derogation of fundamental rights, except in the case of laws relating to the armed forces, or to the police for the maintenance of public order, proper discharge of their duties, or maintenance of internal discipline.
Article 8 of the 1973 Constitution states:
Any law, or any custom or useage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.
The State shall not make any law which takes away or abridges the right so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void."
A point of concern in article 8 is section 3 (a) that the provisions of the article do not apply to armed forces and police. etc for the maintenance of public order or for the purpose of ensuring the proper discharge of their duties. However, the powers and sphere of influence of these authorities, especially police, are more clearly defined in their respective rules and regulations.
The 1973 Constitution of Pakistan considers Islamic rules and principles as fundamental elements to guide the development of law in the country. Article 227 specifically obliges the state to develop laws in accordance with Islamic teachings and restricts the development of any law that does not conform to the teachings of Quran and Sunnah. Article 227 states:
All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such injunctions."
When we speak about privacy, we find that the Quran and Sunnah have an inventory of references that can play a key role in clarifying our understanding of Privacy Rights as guaranteed in Islamic teachings. This enables us to develop a standard to gauge the application of Islamic Privacy principles in Pakistan and see for ourselves how thoroughly they have been entwined and observed.
The Quran speaks explicitly about privacy rights with particular reference to the privacy of the home and the procedure of entrance in the following verse:
O ye who believe! Enter not houses other than your own until you have asked leave and saluted the inmates thereof. That is better for you, that you may be heedful. And if you find no one therein, do not enter them until you are given permission. And if it be said to you, `Go back then', then go back; that is purer for you. And Allah knows well what you do."1
In another place the Quran abhors spying on another; an important aspect to ensure that privacy of a person is not violated by another:
O ye who believe! avoid most of suspicions; for suspicion in some cases is a sin. And spy not on each other, nor back-bite one another. Would any of you like to eat the flesh of his brother who is dead? Certainly you would loathe it. And fear Allah, surely Allah is Oft-Returning with compassion and (is) Merciful."2
There are also authentic records of instances that have occurred during the life of the Holy Prophet (pbuh) that set a guiding framework with reference to ensuring the privacy of individuals in their homes:
It is reported that a man came to see Prophet Muhammad, peace be upon him, and sought permission for entry while standing just in front of the door. The Prophet said to him; "Stand aside: the object of the Commandment for seeking permission is to prevent casting of looks inside the house."3
The procedure for entry to another person's residence is also evident from the Prophet Muhammad's (pbuh) personal life:
The practice of the Prophet, peace and blessings be upon him, was that whenever he went to see somebody, he would stand aside, to the right or the left of the door, and seek permission as it was not then usual to hang curtains on the doors."4
Sahl b. Sa'd as-Sa'id reported that a person peeped through the hole of the door of Allah's Messenger (may peace be upon him), and at that time Allah's Messenger (may peace be upon him) had with him a scratching instrument with which he had been scratching his head. When Allah's Messenger (may peace be upon him) saw him, he said: "If I were to know that you had been peeping through the door, I would have thrust that into your eyes", and "Permission is needed as a protection against glance."5
Islam has placed similar sanctity on the privacy of data. There are also references to ensuring the data privacy of an individual and, more specifically, correspondence in the teachings of the Holy Prophet (pbuh):
According to Hadrat `Abdullah bin Abbas, the Prophet said: "Whoever glances through the letter of his brother without his permission, glances into fire."6
Another source of inspiration is the conduct of the companions of the Holy Prophet (pbuh) and in this respect the incident of Caliph Hazrat Umar (R.A.) is often quoted when he during the routine nocturnal patrolling, heard a woman singing in her house. The Caliph, the head of the government, scaled the wall and saw her enjoying liquor. As the story goes, the inmate of the house on the contrary charged the Caliph with violating three injunctions: (a) spying, (b) entry into the house by scaling instead of coming in through the front door and (c) forcing entry into the house (of course without permission). The Caliph did not take cognisance of the offence because the privacy of the house was inviolable and the law protected it. The Caliph did not prosecute the culprit either, even though he was an eye witness, because he was not a natural witness and had witnessed the incident taking place in the house only after scaling the wall, which was not permitted. It is worth noting that the inmate of the house was not disturbing the public peace.