"The telescreen received and transmitted simultaneously. Any sound that Winston made, above the level of a very low whisper, would be picked up by it; moreover, so long as he remained within the field of vision which the metal plaque commanded, he could be seen as well as heard. He was never alone, even in his own room."
In an unsettling reflection of George Orwell's dystopian prophecy, the Pakistani government has recently bestowed upon its powerful spy service, the Inter-Services Intelligence (ISI), unchecked powers to record phone calls and intercept messages under Section 54 of the Pakistan Telecommunication (Re-Organisation) Act, 1996. This ominous authority, granted through a mere Statutory Regulatory Order (SRO), circumvents the essential democratic process of parliamentary debate, especially when it trespasses on the sacrosanct territory of Article 19, which enshrines the right to privacy.
The SRO reads "In exercise of the powers conferred under Section 54 … the federal government, in the interest of national security and [in the apprehension] of any offence, is pleased to authorise the officers not below the rank of grade 18 to be nominated from time to time by the Inter-Services Intelligence (ISI) to intercept calls and messages or to trace calls through any telecommunication system as envisaged under Section 54 of the Act."
Giving powers of surveillance in apprehension virtually grants unlimited powers and, in fact, makes the chosen grade 18 officer an omnipresent 'Big Brother'.
To bestow such sweeping powers through an SRO is akin to releasing the 'Kraken' of surveillance upon the unsuspecting citizenry, bypassing the safeguard of parliamentary scrutiny. The 1996 Act, even in its most generous interpretation, does not confer the ISI or any intelligence agency with the authority to conduct indiscriminate surveillance on a massive scale.
The Supreme Court of Pakistan, in Benazir Bhutto and Others v President of Pakistan and Others (1998 PLD SC 388), examined the validity of telephone tapping and eavesdropping in the context of the inalienable fundamental right to privacy guaranteed by Article 14(1) of the 1973 Constitution.
In recent years, we have witnessed a troubling trend of (audio) conversations and videos of prominent individuals being leaked. How do we ascertain that this SRO will not merely provide a veneer of legality to illicit recordings?
In the absence of any law to regulate these, the court held that phone-tapping and snooping techniques violated fundamental rights to privacy and were tantamount to intrusions into individuals' privacy, causing injury to their dignity. This 1998 judgement authoritatively settles jurisprudence on issues of surveillance and has since become a sine qua non of fundamental rights.
Article 14(1), entitled 'Inviolability of dignity of man etc.' reads: "The dignity of man and, subject to law, the privacy of home, shall be inviolable". This right cannot be curtailed arbitrarily. The judiciary has repeatedly asserted that any intrusion into personal privacy must be backed by robust legal safeguards. Surveillance, if necessary, must be conducted under a warrant issued by a judicial magistrate, ensuring a balance between state interests and individual rights.
Moreover, in recent years, we have witnessed a troubling trend of (audio) conversations and videos of prominent individuals being leaked. How do we ascertain that this SRO will not merely provide a veneer of legality to illicit recordings? What safeguards has the government put in place to ensure that this formidable power is used exclusively for combating terrorism and safeguarding national security, as the SRO ostensibly claims? Where, indeed, is "national security" defined within the SRO? Are we to entrust a grade 18 ISI officer with the Herculean task of discerning national security threats? This is a recipe for cooking up a Pandora's box of abuses.
Comparatively, democracies around the world have instituted stringent checks on surveillance. In a landmark case of United States v. United States District Court (1972), the Supreme Court ruled that electronic surveillance constitutes a search and, therefore, requires a warrant based on probable cause. It addressed the issue of warrantless wiretaps in domestic security cases, emphasising the necessity of judicial oversight.
Justice Lewis Powell, writing for the Majority, makes a candid yet powerful argument as to why such a power cannot be discretionary to the executive,
"As I read it—and this is my fear—we are saying that the President, on his motion, could declare—name your favourite poison—draft dodgers, Black Muslims, the Ku Klux Klan, or civil rights activists to be a clear and present danger to the structure or existence of the government….The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorised official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation."
The United Kingdom, too, has grappled with the balance between security and privacy. In R v. Preston (1993), the House of Lords held that evidence obtained through phone tapping without proper authorisation is inadmissible in court. This case underscored the need for strict adherence to statutory regulations regarding the interception of communications.
The 1996 Act, in its current form, does not provide the legal basis for such expansive surveillance powers. It is an antiquated law, ill-equipped to address the complexities of modern communication and privacy concerns
India's Supreme Court has also addressed this critical issue in People's Union for Civil Liberties (PUCL) v. Union of India (1997). The court ruled that phone tapping constitutes a serious invasion of an individual's privacy and can only be conducted under stringent procedural safeguards. The guidelines laid down by the court included the necessity of authorisation by a Home Secretary and periodic review by a high-level committee.
Islamic jurisprudence, too, places a high value on the privacy of individuals. The Holy Quran states, "Do not spy on one another" (Quran 49:12). The Prophet Muhammad (PBUH) also emphasises the sanctity of privacy in numerous Hadiths. For instance, he said, "A man who peeped through a hole into the house of a people without their permission, it is permissible for them to poke his eye out" (Sahih Muslim). These teachings underscore the importance of respecting privacy and the inviolability of the home.
Furthermore, the 1996 Act, in its current form, does not provide the legal basis for such expansive surveillance powers. It is an antiquated law, ill-equipped to address the complexities of modern communication and privacy concerns. Any attempt to use this law to justify widespread phone tapping is a gross misinterpretation and misuse of legislative intent.
There is a reason every common law jurisdiction has judicially hinged safeguards and mandatory warrants for such surveillance. Granting discretionary powers to ISI officials to record phone calls is fraught with peril. It risks creating an environment where abuse of power becomes the norm rather than the exception. The spectre of an Orwellian state looms large, where every conversation, every private moment, could be subject to state scrutiny. Such unchecked power erodes trust in public institutions and undermines the very essence of democracy.
Segments of the opposition political parties and civil rights societies are already challenging this law in court. It seems that in Pakistan, everything is being contested in the courts because we have rendered the Parliament as useless. This law, like many others, should be discussed within the parliamentary chambers. It should have been debated even before its release, but for reasons unbeknownst to us, our politicians appear to disdain the very essence of democracy: discussion and debate in Parliament.
If the government genuinely seeks to combat terrorism, it must adopt a targeted approach. This requires specific legislation that clearly delineates the circumstances under which surveillance can be conducted, ensuring that it is both necessary and proportionate. Blanket powers are antithetical to the principles of justice and fairness, leading us down a slippery slope toward authoritarianism. The government is not just overstepping legal boundaries; it is trampling upon the constitutional rights of its citizens.