Privacy—a missing fundamental right in Pakistan

Privacy is one fundamental right which is missing in the Constitution of Pakistan. It is an astonishing fact that no attention has been paid in this direction by champions of human and digital rights.

Chapter II of the Constitution of Pakistan of 1973 dwells upon fundamental human rights. These are buttressed through another constitutional Article 8 (5), which states that “[t]he rights conferred by this Chapter shall not be suspended except as expressly provided by the Constitution.” In Pakistan no official document like passport, driving license, sales purchase agreement or income tax number, is issued without sharing personal information of National Identity Card. It is a unique ID but it is fraught with dangers of breach of privacy of individuals.

It is not the case that privacy is completely missing in the fundamental human rights in Pakistan. According to Article 14 (1) “The dignity of man and, subject to law, the privacy of home, shall be inviolable.” This was considered, mainly, to protect the person from any unlawful entry and access to personal space in his/her home and confined to four walls of each household. Therefore, the Cr.P.C of 1898 is designed to conduct house search of any person in a specified manner. With the passage of time, protection of privacy is not limited to private place only. There is an evolving concept of privacy in public. Case laws in Pakistan are also limited to privacy within four walls of home and it is enforced to this extent only. Although, international best practices point towards another direction. The issue of privacy was decided in the USA much earlier. While adjudicating about a case Katz Vs United States in 1967, the US Supreme Court mentioned that right to privacy is inherent part of the Fourth Amendment which states that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall be issued, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The court decided that right to privacy is not limited to private place but it is applicable where intent of a person to keep himself private even in an area accessible to public.

Europe is grappling with Guidelines for Data Protection Rights (GDPR) and issues of protection of data are interlinked with right to privacy in Europe. In the United Kingdom also, the right to privacy is subjected to limits of law as, depending upon case to case basis, community’s security is considered higher value than privacy. In the Indian Constitution, right to privacy is not recognized but in a recent judgment of the Supreme Court of India in Justice KS Puttaswamy Vs Union of India, on August 24, 2017, it was decided that “Right to privacy is an integral part of Right to Life and Personal Liberty guaranteed in Article 21 of the Constitution.”

On the other hand, there is a concept of limitations on privacy in public. In the United States Vs Knotts (1983), the US Supreme Court held that a person moving in an automobile on a thoroughfare has no expectation of privacy and further allowed that the police using electronic beeper to track Knotts vehicle suspicious of being involved in narcotics cases.

One more issue which makes recognition of privacy as a fundamental right is evolution of internet and data generation and preservation through electronic affordable sensors.

Availability and mobility of personal data is made easy with the help of technology. In Karachi, scams have surfaced where personal identification data of a person is used to open bank accounts and millions of rupee transactions have taken place without the knowledge of the person. Earlier, there were complaints about bogus votes in Karachi. In recent general elections, hundreds of National Identity Cards were found dumped in a waste disposal drain in Lahore and what to talk about protection of information. All these examples are enough to demonstrate that personal identities and data is unsafe and being used for illegitimate purposes and security of this data and protection of privacy of individuals is of utmost importance in today’s world without any further delay in Pakistan.

However, none of these precedents and debates on privacy in public has even started in Pakistan yet, despite our international obligations under ICCPR. Pakistan has signed and ratified the International Covenant on Civil and Political Rights in 2010. Article 17 of the ICCPR states that “no one shall be subject to arbitrary or unlawful interference with his privacy, family or correspondence.” Through this Pakistan has committed to protecting other intrinsic rights such as freedom of expression and freedom of association.

In the situation, it is clear that right to privacy is accepted in the developed world and even the less developed countries like India are making headway in that direction. In Pakistan, however, there is another important development which necessitates recognition of this right sooner than later. Lahore is the first Safe City Project after Islamabad where public spaces are brought under surveillance with the help of 8,000 cameras. These cameras are also equipped with artificial intelligence and have functions like facial recognition and vehicle tracking on the basis of category of vehicle or vehicle registration number plate. These advance systems have the capability to track the individuals, record and transmit that data to be used by others for more than one purpose for extended period of time. Although PSCA has developed clear data protection Policies and perhaps the first Privacy Policy which is publicly available, however, there is a need to do more! There are thousands of cameras being operated by private individuals and companies which are placed in public spaces and enormous amount of data is being captured without any permission from any public regulatory body of the government. There is no law or constitutional provision which prohibits installation of data capturing and storage in public spaces by private individuals and entities unlike other countries in United Kingdom and Turkey. It is important that the right to privacy is also included in the fundamental rights as enshrined in the Constitution and any violation of this right should be taken seriously. Famous Article 184 (3) of the Constitution empowers the Supreme Court of Pakistan to take suo moto action for protection of these rights. Whereas it requires a holistic regime for recording, preserving, handling and sharing of data on the lines Electronic Evidence Data Regulations 2016 of Punjab Safe Cities Authority, it is important that wherever the public surveillance systems are installed e.g. Islamabad, Gilgit, Karachi and other cities, these guidelines are followed and protection of data and protection of privacy rights are given due importance.

We are witnessing popularity and mushrooming growth of CCTV cameras in Pakistan. It is the right time to acknowledge and enforce right of privacy in public and private places and amendment in fundamental rights of the Constitution of Pakistan. With these constitutional guarantees and international obligations of ICCPR intact, one expects that there will be a comprehensive enforcement regime. No private CCTV cameras should be allowed in public spaces without permission of the lawful public regulators. There should be an amendment in Pakistan Penal Code to make it a cognizable offence if privacy of a person is violated and lawful remedies should be provided through robust legislation by the newly elected government.

—The author is founding Chief Operating Officer of Punjab Safe Cities Authority and an alumnus of Harvard Kennedy School, USA. He is amicus Curie on Traffic Management issues for Lahore High Court.