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Chapter: 

III. Statutory protections for privacy

Criminal Law

Pakistan Penal Code (Act XLV of 1860):1 The Pakistan Penal Code (PPC) is the primary law for all offences charged in Pakistan. It is applicable across the country and has been in force since the birth of the nation, with a few modifications as per Islamic principles. Though there are some sections that are related to individual privacy,2 these are far from sufficient to guarantee the comprehensive protection of privacy. One explicity mention of privacy occurs in Section 509 as substituted by Act 1 of 2010:

Whoever:-

(1) intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman;

(2) conducts sexual advances or demands sexual favours or uses written or verbal communications or physical conduct of a sexual nature which intends to annoy, insult, intimidate or threaten the other person or commits such acts at the premises of workplace or makes submission to such conduct either explicitly or implicitly, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both."

This clause is seen as a comprehensive protection of privacy for women.

There are also sections dealing with criminal trespass,3 that provide that the privacy of the home remains protected by law. This section designates both illegal entry and legal entry followed by illegal stay as categories of criminal trespass. The intent of the trespasser is also comprehensively defined; it includes trespassing for the sake of offence, to intimidate, insult, or annoy. There are also categories that define trespassing under various purposes and conditions along with their appropriate explanations and respective punishments.

Freedom of Information

Freedom of Information Ordinance 2002:4 As the government holds a large database of citizens' personal information related to different spheres, it is critical that a line be drawn regarding the level of information that cannot be supplied by government departments under freedom of information requests. The demarcation identified under this ordinance, in Article 8, has three provisions with respect to privacy: records of banking companies and financial institutions relating to customer accounts (8(d)) are excluded, as are records relating to the personal privacy of individuals (8(g)), and records of private documents furnished to a public body (8(h)).

There are also provincial laws relating to freedom of information in Balochistan (2005)5 and Sindh (2006)6 that set similar boundaries with regards to individual privacy per the federal ordinance.

Law Enforcement and Counter-Terrorism

Although terrorism has been a long-prevailing peril for Pakistan, a massive upsurge in terrorist incidents has occurred since September 2011. This increase is mainly attributed to Pakistan's involvement as a front-line state in the war against terrorism, which has further divided Pakistan along ideological, ethnic, provincial, and socio-cultural lines. This has amplified the state of insecurity and extremism in the country, leading to the loss of lives. Per the South Asia Terrorism Portal database, there were 9,620 civilian and 3,443 security forces fatalities due to terrorism in Pakistan between 2003 to February 20, 2011.7 The yearly trends show that causalities related to terrorism have been continuously rising since 2003. As a result of this, fear and a high level of concern are widespread among the general public. According to the Pew Global Attitudes survey released on July 29, 2010, 98% of those surveyed in Pakistan consider terrorism to be a very big problem for the country.8

As such, both the magnitude and intensity of terrorism are severe; the effects can range from physical losses such as those to life and property of individuals to much broader psychological implications by instilling a constant state of fear and panic in the public. Unanimity of opinion regarding the economic loss suffered by the nation due to terrorism is also evident in popular research literature.

International and national conventions, laws and regulations, meanwhile, allow for the infringement of privacy in order to carry out lawful procedures that are explicitly stated in Pakistani laws for reasons such as the protection of national security, avoidance of economic losses and prevention of disorder in society, to name a few. Considering the fact that the implications of terrorism are linked directly with the aforementioned areas, and that Pakistan's global ranking per the 2010 report of Maplecroft's Terrorism Risk Index is second in the world,9 there is a need to devise comprehensive laws regarding terrorism in order to ensure that a just and accountable system is established, with all requisite judicial checks, and which has a clear delineation of the power limits of every agency, while maintaining a strict balance with privacy and other rights.

Anti Terrorism Act 1997:10 While the most important terrorism law is the Anti-Terrorism Act of 1997, anti-terrorism law has existed in Pakistan since the country's birth. The initial legal instrument dealing with terrorism was Section 144 of the Criminal Procedure Code (CrPC). It was replaced in 1975 with the Terrorist Activities Act, and finally the 1997 Anti-Terrorism Act. The Anti-Terrorism Act of 1997 was an attempt to impart timely and inexpensive justice by establishing a parallel legal system. The 1997 Act was further modified over time to include various other clauses and definitions, most of which have been criticised by the media and academic experts for extending the powers of the ruling regimes.

The following are the provisions found to be related with privacy rights in the Anti-Terrorism Act:

5. Use of armed forces and civil armed forces to prevent terrorism.

(2) In particular and without prejudice to the generality of the provisions of sub-section (1), an officer of the police, armed forces and civil armed forces may---

iii) Enter and search without warrant, any premises to make any arrest or to take possession of any property, fire-arm, weapon or article used or likely to be used, in the commission of any terrorist act or scheduled offence.

The powers given to officers of law enforcement agencies under the article open up avenues for the exploitation of power because the article in question does not require that evidence of suspicion be presented to a court to seek permission before entering and searching any premises.

10. Power to enter or search --- If an officer of the police, armed forces or civil armed forces is satisfied that there are reasonable grounds for suspecting that person has possession of written material or a recording in contravention of section 8 he may enter and search the premises where it is suspected the material or recording is situated and take possession of the same.

This section grants officers of law enforcement agencies the power of entering and searching premises, and taking possession of written or recorded material if there are reasonable grounds for suspecting the possession of written or recorded material in contravention of section 8 (intended or likely to stir up sectarian hatred). There has been some criticism of this power, and calls for protections including the requirement that the entering officer present a written statement to the individual under suspicion as to why the officer believes that said individual is being investigated and submit the same to a court beforehand.

Another area of concern is the role of intelligence agencies in covert surveillance operations across the country. The problem is augmented due to the fact that there is no law governing the creation or overseeing the operation of these intelligence agencies. Thus, the operational powers and jurisdiction of these intelligence agencies are not confined by any legal delineations. In the absence of legal support for power demarcation, intelligence agencies, including the ISI and MI, have been used in Pakistan for the fulfilment of political motives on the part of the federal government, mostly during the reigns of military dictators.

As such, the undefined powers of intelligence agencies, coupled with major loopholes in the legal instruments governing Pakistan are a notable impediment in bestowing upon Pakistani citizens their fundamental privacy rights.

Security of Pakistan Act 1952: This act was enacted to provide special measures for dealing with persons acting in a manner prejudicial to the defence, external affairs, and security of Pakistan.

Section 3 of the act provides the reasons and crimes for which this Act will be applicable and then illustrates in (1)(e) the intrusion of that person's privacy as made permissible through this Act:

3(1) The Federal government if satisfied with respect to any particular person, that, with a view to preventing him from acting in any manner prejudicial to the defence or external affairs or the security of Pakistan or any part thereof, it is necessary so to do, may make an order:

(e) Requiring him to notify his movements or to report himself or both notify his movements and report himself in such manner, at such times, and to such authority or person, as may be specified in the order;"

The absence of any illustrations or examples of the three types of crimes mentioned in 3(1) is a major loophole that diminishes the public's confidence in the pragmatism of this act. Here again, the power of discretion to determine guilt is held by the federal government rather than the judiciary. Without the presence of adequate illustrations to exemplify these categories of crime, the justifications for accusing someone become unbounded and therefore, the scope can be enhanced whenever and wherever required for individual or political motives.

The Prevention Of Anti-National Activities Act 1974: 11This act aims to more effecitvely prevent certain anti-national and treasonable activities of individuals and associations and for matters connected thereto.12

The definition of anti-national activities as provided by this act is both broad and vague. One definition of anti-national activity is of major concern as it marks out any individual or organisation as anti-national if s/he/it disclaims, questions, disrupts or intends to disrupt the sovereignty or the territorial integrity of Pakistan.  This definition of anti-national activities thus places an individual/organisation utilising any communications channel, either print or broadcast, to rightfully disclaim or question the sovereignty of Pakistan at the risk of being listed as anti-national, at the discretion of the federal government.

The declaration of being anti-national13 is subject to the discretion of the federal government, thus invoking the possibility of political exploitation, as is the historical trend in Pakistan. Furthermore, the extension of 3(2) "the federal government may not disclose any fact which it considers to be against the public interest to disclose" creates greater room for the victimisation of individuals and associations by the State. The additional power bestowed upon the federal government to refuse to disclose any fact it deems against the public interest to disclose creates room for suspicion: if a person or association is deemed anti-national, there should be no reason to conceal facts from the public, so that citizens can be involved in identifying such people/groups to curtail their damaging activities.

Section 7(2) of the Act allows the federal government to designate any government officer to investigate a matter where the order issued for investigation is to be treated as the warrant for investigation and the assigned officer is given the authority to enter, search, and investigate the locality, along with the accused person's officer, agent, or servant. This section is a continuation of the unlimited power allocated to the federal government to infringe privacy rights by firstly holding a person/organisation as anti-national through a notification, without any judicial involvement, and then by assigning any government officer, where even that officer's department is not explicitly mentioned, the power to thoroughly search and investigate any premises of the accused. The absence of any role of the judiciary throughout the process is of grave concern and acts as a facilitator for the violation of privacy rights.

Control of Narcotic Substances Act:14 This Act was promulgated in 1997 and was aimed to consolidate and amend laws relating to narcotics and psychotropic substances, and control the production, processing, and trafficking of such drugs and substances. This law has implications for the privacy of individuals as chapter 3 of the act specifically relates to "search and investigation" powers and procedures.

For example, Section 23 of the act authorises officers to stop and search any conveyance, on land or air, and examine any goods contained therein. But there is no clarity regarding who that officer would be under the provisions of this Section: would it be a sub-inspector or above or any officer with a warrant from the special court? This lack of clarity opens gateways for the violation of Pakistani citizens' privacy rights.

Internet privacy

According to estimates from the Internet World Stats site, Pakistan had around 18.5 million internet users in June 2009, most of whom are not familiar with the concept of identity theft or the need to establish safeguards to protect against the various threats on the internet. Online communication and networking have opened new gateways for criminal acts and, therefore, hold strong direct implications for the privacy of individuals.  The increased efficiency of data storage, information processing, and record keeping has placed at risk the personal information of individuals, their identity, and the personal records of people held by private and public institutions.

Pakistan has developed legislation and ordinances to respond to developments in electronic crime. Our focus in this following section will be to scrutinise the policies promulgated in the country with reference to safeguarding or violating the privacy rights of individuals.

National IT policy and Action Plan (2000): Article 3.4.12.2 under the "IT Policy strategies" section is linked with privacy rights and provides recommendations to the IT sector to safeguard the privacy of individuals and the confidentiality of transactions against all possible misuse, including even the State, except within the national legal framework.15 The focus of this policy and the action plan regarding privacy is comprehensive, as this two-line policy directive (3.4.12.2.4.6) provides a broad policy recommendation to devise detailed laws that protect the privacy of individuals on the internet and provide a safe platform for e-commerce transactions.

Electronic Transaction Ordinance, 2002: This ordinance referred to as ETO for short was enacted, in 2002, to "recognise and facilitate documents, records, information, communications, and transactions in electronic form, and to provide for the accreditation of certification service providers."

The ETO has one article dealing directly with ensuring the privacy rights of individuals on the internet, though does so by equating hacking with privacy:

36. Violation of privacy of information

Any person who gains or attempts to gain access to any information system with or without intent to acquire the information contained therein or to gain knowledge of such information, whether or not he is aware of the nature or contents of such information, when he is not authorised to gain access, as aforesaid, shall be guilty of an offence under this Ordinance punishable with either description of a term not exceeding seven years, or fine which may extend to one million rupees, or with both."

Article 36, under the "Offences" chapter, ensures the privacy of any individual or organisation by safeguarding his/her/their information system(s). 'Information system' is defined by the ETO as "an electronic system for creating, generating, sending, receiving, storing, reproducing, displaying, recording, or processing information". It is important to mention here that every computer system, whether used at home or at an institution, must fall in this category as every computer system has a strong relationship with information. Therefore, Article 36 guards the information of every person/ information system by placing a punishment of a maximum of seven years in prison, or a fine of one million rupees, or both.

Article 37 further expands the scope of legal protection offered to victims with reference to privacy rights. Subsection (1) states that accessing anyone's private data over any information system, without authorisation, is impermissible by law. Subsection (2) covers areas of damage to the functioning of information systems that are not directly related to privacy. Both crimes are punishable by either a term not exceeding seven years or a fine which may extend to one million rupees.

The Prevention of Electronic Crimes Ordinance (PECO) promulgated on the 11 December 2007 covered these issues in far more detail. However, the Ordinance lapsed in November 2009. Since then, cybercrime investigations have relied extensively on the ETO for presenting cases in the court of law.

Medical privacy

Pakistan Medical & Dental Council Code of Ethics:16 The records held by medical authorities are the private property of the patient. The patient-physician relationship is therefore considered a vital bond of confidentiality to safeguard the patient against many unwanted outcomes that can have an adverse effect on her/his reputation, personal relationships, social bonds, and lawful obligations etc. This bond is therefore based on a high level of trust, which must be protected, and for which the Pakistan Medical & Dental Council has developed a Code of Ethics.

Section Five of the PM&DC code of ethics covers the oath of medical and dental practitioners. This oath expresses the confidence and trust that the patient should have while discussing his/her medical condition with the doctor.

Article 12 of the Act deals extensively with confidentiality of information and starts with extending the means by which information can be received by the physician. It regulates the practitioner from seeking information received in a confidential context (12.1), does not place any legal obligation on the doctor to provide information to any person or organisation on any medical case (12.2), prevents the government from taking the professional medical record of patients without their prior consent (12.3), but it allows the presiding judge to obtain any information from the physician, compliance with which is obligatory, and refusal to do so is considered contempt of court.

Financial privacy

Banking Companies Rules 1963:17 This Ordinance also provides safeguards for financial information, which is one of the most critical aspects of a person's privacy. There are only two situations in which the SBP is allowed to disclose information: when it is in public interest to do so or when elections are being held involving persons from whom payments of loans, advances, and credits have been due for more than an year. The second situation requires that the person be given prior notice and the opportunity of a hearing.

Separately, the State Bank of Pakistan has issued a directive requiring banks and financial institutions to supply to the Central Board of Revenue information regarding profit/return in excess of PKR10,000 paid to account holders/depositors along with their names, addresses, National Tax Numbers, and National Identity Card Numbers.

The Lahore High Court subsequently held that taking private information of ordinary people without any allegation of wrongdoing would affect their lives, making them potentially vulnerable and insecure, and that it represented an extraordinary invasion of their fundamental right to privacy. Such a direction in subordinate legislation was illegal, unreasonable, and discriminatory, being ultra vires of Articles 4 and 25 of the Constitution. The High Court accepted a Constitutional petition and struck down the impugned Circular as being without lawful authority.

Media privacy

Press Council of Pakistan Ordinance, 2002:18 The Press Council of Pakistan Ordinance 2002 places a set of obligations upon the press under the supervision of a press council, whose function it is to develop, enforce, and implement the ethical code of practice.

The schedule of the Ordinance identifies the ethical code of practice, which has five articles that guarantee the right of privacy to individuals. Article 1 focuses on curtailing the publication of slanderous and libellous material, Article 4 disallows intrusion into the private sphere, family, and home. Article 7 aims to curb discrimination and hatred towards any group or individual along a broad spectrum of aspects. Article 14 safeguards the privacy of women and children that are victims of sexual offences and crimes by curtailing the publication of their names and photographs. And lastly, Article 15 requires that confidentiality be agreed upon during briefings and background interviews.

Communications privacy

Pakistan Telecommunication (Re-organisation) Act 1996:19 This Act aims to provide for the reorganisation of telecommunication system in Pakistan by establishing the Pakistan Telecommunication Authority, the Frequency Allocation Board, National Telecommunication Corporation, and the Pakistan Telecommunication Employees Trust; the regulation of the telecommunication industry; the transfer of telecommunication services to the private sector; and for matters connected therewith or incidental thereto.

Article 32 of the Act allows the authority (Pakistan Telecom Authority) or the board (Frequency Allocation Board, one of whose functions it is to investigate all complaints of interference and take appropriate action to effect clearance) to submit information regarding illegalities to the court. The court may issue a search warrant for the premises used for the crime, carry out investigation, and seize the equipment used.

The involvement of the court in the process, unlike most other laws in the country, portrays a pragmatic attitude towards ensuring that rights in general and privacy rights in particular are not exploited and an element of accountability is displayed. As we see in Article 54 of the Act, i.e. National Security, however, the federal government has preserved its unlimited powers to intercept calls in the interest of national security or in the investigation of an offence.

Article 33 disallows any suit, prosecution or legal proceeding from being taken against an authority or a member/employee of authority for actions carried out in good faith. The only point of concern here is that "good faith" can never be defined as it is a qualitative, intangible element. This allows for greater political and institutional exploitation while opening avenues for avenging personal disputes: a member of the board could, in theory, submit a false report in "good faith" and destroy both the privacy and the reputation of the accused and remain unaccountable as "good faith" cannot be challenged.

A standard complaints procedure must therefore be enacted to prevent manipulation of the law by officials. A consultative mechanism with proper documentation must be presented to the court as copies of evidence, signed by senior authorities so as to curtail any possibility of violating privacy rights.

Article 54 of the Act makes arrangement in cases of national security:

Notwithstanding anything contained in any law for the time being in force, in the interest of national security or in the apprehension of any offence, the Federal Government may authorise any person or persons to intercept calls and messages or to trace calls through any telecommunication system."

Here again, the federal government has bestowed upon itself unlimited powers to allow any person to intercept any call or message or to trace calls through any telecommunications system in the interest of national security or for the investigation of an offence. Although this article has been categorised under the miscellaneous section, it has the most severe implications for privacy, for two main reasons. Firstly, as discussed earlier, even in matters of national security, the court must be given precedence in deciding where such intrusion is permissible. Secondly, the federal government has increased its powers many fold to include the second causality of "apprehension of any offence". The category of offence that is subject to this procedure is not mentioned and the time for which the suspect would be monitored is not specified. Arguably, under this law the federal government has a right to monitor, for example, the private calls of a man to his wife for days, months, or years on the "apprehension" that this person might steal books from a library.

Telecommunications Rules 2000:20 The PTA Telecommunications Rules of 2000 is a document governing the relationship between the authority (PTA) and the licensee. The document is comprehensive and elaborates on the codes and procedures that need to be followed while granting licences and associated services.

These rules provide consumers with privacy protection over telecommunications networks. The articles related to privacy are briefly discussed below:

Part 11 of the general licence conditions, "Conditions", places an obligation on every licensee to abide by Schedule 2, annexed with the document. Section 4 of "Conditions" is related to the "confidentiality of customer information". It requires the licensee to prepare a "confidentiality code", in consultation with the PTA, and places an obligation upon the employees of the licensee to abide by it. The licensee is required to give the PTA assurance in writing that all steps have been taken to ensure that all employees who have or might have access to the personal information of customers are abiding by the confidentiality code.

Article 4.2(a) is of serious concern here as it provides that the code shall specify the persons to whom customer information may not be disclosed without the prior consent of the customer. The first point that pops up is that there will be people to whom customer information will be disclosed without prior consent, and those are not mentioned in the list. The clause could have been more straightforward if it had listed the persons or departments allowed to obtain customer information without their consent, rather than the other way around.

Article 54 explicitly states that the federal government has a right to infringe upon individual privacy in matters of national security or in the "apprehension of any offence". National security is a broad term that in itself has extensive applicability and whose interpretation can be directed at a large number of activities. More distressing is the addition of the exception of "any offence" in the telecommunications rules. No explanation or classifications has been provided for "any offence" in the rules, and there is no requirement for a court order.

The Telegraph Act 1885: This Act came into force in 1885, and defines 'telegraph' under subsection (1) of Section 3 as:

Any apparatus, equipment or plant used for transmitting, emitting, making or receiving signs, signals, writing, speech, sound or intelligence of any nature by wire, radio or visual or electromagnetic system."21

Article 5 defines the powers of the federal or provincial government to take temporary possession of any telegraph established, maintained, or worked by any person licensed under this act (a) or order for the interception, detention, or disclosure of any class of message by any person/class of persons to the government. The justifications for both these sub-articles (1) and (2) are public emergency or public safety. Furthermore, any doubts regarding the validity of such actions shall be dealt with by a certificate of the federal or the provincial government justifying its actions.

Similar to most other acts where the State is bestowed with absolute authority without the involvement of the judiciary, this Act also allows the government, both federal and provincial, to intervene, disrupt, and take away the privacy of communications from people and leaves no room for any accountability of the state in any court of law.

Although telegraphic communications have become obsolete with the advent of modern technologies, these outdated laws, propagated in the Colonial Era, are kept intact to ensure that the powers of the State remain absolute.

Articles 23 and 24 of the Act, when taken together, address the protection of privacy. While Article 23 outlines the cases where a person may be subjected to a penalty of PKR500 for intrusion into a telegraph office, refusing to leave that room even after being requested to do so, or obstructing the work of a telegraph official, Article 24 extends that penalty by adding imprisonment that may extend to an year, if the reason for that entry is to unlawfully attempt to learn the contents of messages.

Article 25-D marks the punishment   imprisonment (up to three years), or a fine, or both   for "causing annoyance or intimidation" to any person over any telephone. Every person, including telegraph officers, falls under the gambit of this law; it is heartening to notice that no discrimination is exercised between government officials and the general public for protecting privacy rights.

 

Footnotes