“Privacy is the foundation of freedom. Without privacy, you can’t have freedom.”
– Glenn Greenwald
The recent notification by the Ministry of Information Technology and Telecommunication (MoITT), authorizing the Inter-Services Intelligence (ISI) to intercept calls in the interest of national security, has sparked significant backlash. This move has been criticized widely, both in traditional media and through satirical memes on social media. The notification raises profound constitutional and legal questions:
- Is it constitutionally valid?
- Does it align with existing statutes?
- Most importantly, does the law permit such governmental overreach?
The notification directly contravenes several statutes. The Telecom Act of 1996, in Section 26, clearly states the following:
“No person shall intercept or tap any telecommunication except with the prior approval of the Authority.”
Similarly, the Prevention of Electronic Crimes Act (PECA) 2016, in Section 28, mandates the following:
“No person shall intercept or access any electronic communication except with the prior approval of the court.”
Furthermore, Article 14 of the Constitution of Pakistan guarantees that,
“…The dignity of man and, subject to law, the privacy of home, shall be inviolable.”
Judicial precedents reinforce these statutory protections. In Pakistan Telecom Mobile Ltd vs. Federation of Pakistan (2014), the courts held that intercepting calls without a valid court order violates the fundamental right to privacy. The 2017 case of Muhammad Akbar vs. The State clarified that national security could not be used as a pretext to infringe upon individual rights and freedoms. Similarly, in Hassan Niazi vs. Pakistan Telecommunication Authority (2019), the courts declared the interception of calls without a court order unconstitutional.
The combined safeguards provided by PECA and the Telecommunication Act have long protected the privacy of Pakistani citizens. However, this notification dismantles these protections, disrupting the essential checks and balances that previously required judicial approval for call interception. Granting the ISI such unchecked power risks potential abuse, echoing Lord Acton’s warning that,
“Power tends to corrupt, and absolute power corrupts absolutely.”
The notification not only promotes an authoritarian tone but also threatens the separation of powers and the fundamental right to privacy.
By concentrating surveillance power in a single institution without accountability, the notification undermines both statutory and constitutional provisions. Article 14 of the Constitution guarantees the inviolability of privacy and the home, making the notification not only a statutory infringement but also a constitutional violation. The unchecked authority granted to the ISI poses a grave threat to national privacy and civil liberties.
While the legal framework of Pakistan upholds the right to privacy, the reality is that intelligence agencies often conduct surveillance covertly. However, legitimizing such actions within a democratic framework is unprecedented and troubling. The global norm of call interception does not justify legalizing it in a manner that compromises democratic principles.
In Pakistan’s democratically fragile context, the Supreme Court remains the ultimate bastion against authoritarianism. Recent rulings, such as in the reserved seats case, provide hope that the judiciary will uphold democratic values. By exercising its judicial review powers, the Supreme Court can declare the notification ultra vires, protecting individual privacy and maintaining the rule of law.
In conclusion, the notification granting the ISI unchecked power to intercept calls is a severe affront to Pakistan’s democratic integrity, violating fundamental rights and undermining legal frameworks. The Supreme Court, as the ultimate guardian of the Constitution, must intervene to nullify this unconstitutional directive. By doing so, the court will uphold its duty, reinforce its role as a champion of democracy and safeguard the rights and freedoms of citizens. The people of Pakistan look to the Supreme Court as a pillar of support, a defender against authoritarianism and a beacon of judicial independence. It is imperative that the court rises to this critical moment, affirming the primacy of the Constitution and the rule of law, ensuring the vibrancy of Pakistan’s democracy and upholding and protecting the rights of all citizens.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.
