Big Brother is "hearing" you. On July 8, 2024, the federal government issued a notification authorising officers of the Inter-Services Intelligence (ISI) to intercept and trace calls and messages of anyone from time to time, in the interest of national security. The move was hardly shocking given that wiretapping is not a new phenomenon and is conducted across the globe, including Pakistan.
Citizens of Pakistan have long known that their (tele)communications are susceptible to being recorded, intercepted, and traced (whether domestically or internationally) — this notification merely reconfirmed the suspicions harboured by the average Pakistani citizen and drove home the point that we may be under surveillance at any time for any reason. There is no need to be alarmed.
The government has justified the need for such surveillance in the name of national security. Essentially, the government feels there is a need to trace and intercept calls and messages of its citizens to monitor and cull threats to the security of the state. In today's world, where information may be exchanged amongst anti-state elements over the phone or over messages, a need arises to monitor such communication.
Historically, Pakistan has not shied away from curtailing or blatantly violating the fundamental rights of its citizens, all purportedly under the garb of national security. The notification issued on July 8 is just the latest in a series of such measures. If ensuring national security requires surveillance, then the following questions arise: what is at stake if such broad powers to monitor a citizen's communication are conferred on the officers of the premier intelligence agency of the state, and how are state security and fundamental rights to be balanced?
On the face of it, tracing and intercepting calls and messages is a flagrant violation of constitutionally guaranteed rights of a person's right to privacy (Article 14 of the Constitution of Pakistan), right to free speech (Article 19 of the Constitution of Pakistan) and right to dignity of man (Article 9 of the Constitution of Pakistan). Surveillance on such a broad scale may possibly curb anti-state activity (as is often argued) but unstructured surveillance will definitely have a dampening effect on dissent and political opposition in the country. In today's political climate, where even dissent and political opposition can result in the activation of repressive state mechanisms to crush opposition; intercepting calls and messages threatens the ordinary citizen's ability to communicate freely without the threat of backlash from state institutions.
Looking at the relevant provisions of law, it is clear upon a perusal of section 54(1) of the Pakistan Telecommunication (Re-organisation) Act, 1996, (the "1996 Act") that the federal government has been empowered to authorise any individual to intercept and trace calls and messages, in the interest of national security. Whilst the 1996 Act allows for surveillance of persons in the interest of national security, the 1996 Act's empowerment of the federal government does not oust settled jurisprudence, and there is a need to structure discretion and create rules for exercising powers under Section 54 of the act. Currently, the powers of ISI officers are not restricted by any rules or protocol, and there is no legal guidance regarding how long such surveillance can be carried out, who and in what circumstances would qualify for such surveillance, what constitutes a threat to national security, etc.
The exercise of an intrusive power, i.e., tapping of any individual's phone, which is also not regulated by any rules, procedure or protocol and is completely unchecked, is both excessive and arbitrary and thus cannot be a reasonable restriction on fundamental rights guaranteed under the Constitution of Pakistan
The current authorisation of ISI officers does not take into account that an officer will not only single-handedly choose whose communication to monitor but will also carry out the very action of monitoring such communication – acting as both the judge and the executor. Such surveillance will be carried out without oversight from an independent body, leaving an intrusive and broadly conferred power completely unchecked.
The superior courts have repeatedly laid down that where wide-worded powers are conferred there is a need and desirability to structure the power/discretion through rules, and where legislation delegates discretionary power, there is a need to formulate and develop rules/principles to confine the discretion at the earliest. In 2022, the apex court in the MQM (Pakistan) case held that the Constitution does not envisage unstructured, uncontrolled and arbitrary discretion being conferred on state functionaries by the legislature and in instances where some discretionary power is conferred, the same must be exercised justly, honestly, fairly, and transparently and it must be "circumscribed by structured exercise of discretion".
Specifically in the case of tapping of phones, the apex court in the 1998 Benazir Bhutto case had held that tapping of phones of any person, regardless of their status, was unconstitutional and a violation of privacy, right to life and free speech. An unauthorised intrusion by tapping phones was violative of a common law right, which was an essential of ordered liberty. The judgment held that as no procedure was laid down for regulating the tapping of phones, mere SROs (Statutory Regulatory Orders) could not permit or validate a violation of constitutional provisions. Therefore, the mere issuance of a notification by the federal government without formulating rules to lay down the procedure for tapping phones violates constitutional provisions and is an exercise of unstructured discretion.
For such a restriction to be reasonable in terms of constitutionally guaranteed rights, the restraint must be the minimum to preserve public interest and must not bear excessively on the subject. The exercise of an intrusive power, i.e., tapping of any individual's phone, which is also not regulated by any rules, procedure or protocol and is completely unchecked, is both excessive and arbitrary and thus cannot be a reasonable restriction on fundamental rights guaranteed under the Constitution of Pakistan.
Without the backing of procedural safeguards, the current notification threatens to trample on the rights of citizens. There is a dire need to formulate rules that provide the ambit within which such surveillance can be carried out. Till then, "if you want to keep a secret you must also hide it from yourself".