Violations of privacy rights

Huzaima Bukhari, Dr. Ikramul Haq and Abdul Rauf Shakoori

Pakistan not only faces economic and political challenges but has also to contend with multiple pressing issues highlighting the complexities of country’s socio-political topography and diverse array of obstacles it encounters. Issues that are becoming increasingly common are dissemination of misleading information to violations of fundamental privacy rights including unauthorized interception of phone calls or surreptitious video recordings involving politicians, members of the judiciary, bureaucracy, and journalists. They require immediate attention with concerted efforts for their resolution.

Although Article 14(1) of the Constitution of Islamic Republic of Pakistan says: “The dignity of man and, subject to law, the privacy of home, shall be inviolable”. The language though wider in connotation does not delineate the precise scope of privacy protection or elucidate exceptions wherein privacy laws may not be invoked. Furthermore, there exists a notable absence of clarity in legislation regarding legal powers vested in law enforcement agencies for monitoring in special cases, including the interception of electronic communications that can provide clear guidelines and parameters concerning privacy rights and their limitations.

Unfortunately, despite sharing the draft of the Personal Data Protection Bill early in July 2018 and then in May 2023 by the Ministry of Information Technology and Telecommunication, inordinate delays have been observed in finalizing and presenting it for approval in either house of Parliament. The proposed personal data protection law includes provisions aiming to safeguard an individuals’ privacy and ensuring responsible handling of personal data.

Key elements encompass obtaining consent for data processing, providing notices to data subjects, stringent security measures to prevent unauthorized disclosure, and defined data retention requirements. Additionally, the law outlines procedures for addressing data breaches, granting individuals rights, such as access, correction, and withdrawal of consent.

The Bill envisaged establishment of a regulatory body, the Commission, to ensure oversight and enforcement, with powers to issue directives and impose penalties for non-compliance. Furthermore, the law delineates conditions for cross-border data transfers and establishes mechanisms for redressal of grievances. Overall, the law serves to balance the need for data utilization and for protecting individuals’ privacy rights in an increasingly digitized world.

Delay is particularly concerning, given the alarming instances of data breaches, ranging from leakage of medical reports of three-time premier, Mian Nawaz Sharif, to exposure of tax-related documents of ?Justice Qazi Faez Isa, now Chief Justice of Pakistan, and General Qamar Bajwa, along with the disclosure of family information related to the current Chief of Army Staff.

These infractions highlight a critical need for robust data privacy laws to safeguard sensitive information and hold perpetrators accountable. However, absence of concrete action against culprits emphasizes the urgent necessity for swift legislation to plug this glaring gap.

In spite of shortcomings in the proposed law as mentioned above, it remains imperative for the government to table it for approval and subsequent implementation. This would demonstrate the government’s commitment to addressing issues of personal data protection and acknowledge the importance of establishing legal frameworks to safeguard individuals’ privacy rights.

In our country, numerous incidents have surfaced that go beyond data breaches, unveiling a disturbing trend. For example, the unauthorized release of video tapes and telephonic conversations involving politicians and members of judiciary. Moreover, photographs and videos of individuals under investigation have been circulated on social media platforms, while in custody of law enforcement officials.

Journalists have also been implicated in dissemination of private conversations of politicians during interviews, without obtaining their consent. The situation reached a tipping point with the revelation of a telephonic conversation between the mother-in-law of the former Chief Justice of Pakistan and the wife of a senior counsel. In another case, son of ex-Chief Justice Saqib Nisar was found soliciting a share of funds in exchange for securing a political party ticket.

Following the above events, a debate triggered whether or not, recording of audio and video calls is a breach of privacy right. In C.M.A. NO. 3932 OF 2023 IN CONSTITUTION PETITION NO. 14 OF 2023 AND CONSTITUTION PETITION NOS. 14 to 17 OF 2023, the Supreme Court discussed the matter of recusal but the Chief Justice along with other two members of the bench refused to recuse themselves from the bench even though their names had surfaced in one audio call.

In all the above, it remains unclear whether the act of recording was carried out by government agencies or by whistleblowers. When considering legal environment in the United States concerning call recordings during conversations, such practices are primarily addressed within criminal statutes and state codes.

Many states categorize call recording as eavesdropping, wiretapping, or a form of intercepted communication. Before initiating recording, individuals may opt to adhere to the principle of one-party or all-party consent, depending on the regulations stipulated by the parties involved in the conversation. However, if a call is recorded by a third party who is not involved in the conversation but acts as a whistleblower to provide evidence, it may not be considered an illegal interception.

The Occupational Safety and Health Administration (OSHA) and the National Labour Relations Board (NLRB) in the United States do not support employers’ policies prohibiting photography or videography and provide complete protection for whistleblowers who record such media. This principle was affirmed in the case of Franchini vs Argonne National Laboratory, where it was established that employees have the right to protection against retaliation if they can demonstrate that their termination was related to recording made to report workplace safety concerns.

Moreover, the provision stated in 18 U.S. Code § 2511 outlines circumstances under which intercepting wire, oral, or electronic communications by individuals not acting under the colour of law is not deemed unlawful. According to this statute, interception is permissible if the individual is a party to the communication or if consent has been given by one of the parties involved. However, this allowance does not extend to interceptions made with the intention of committing criminal or tortious acts contrary to the laws of the United States or any state, as stipulated by the Constitution.

Similarly, the EU Directive 2002/58/EC of the European Parliament and of the Council, issued on 12 July 2002, aims to safeguard the confidentiality of communications, as outlined in Articles 5, 6 and 8. However, within the same directive, Article 15 delineates limitations on these rights and obligations when deemed necessary, appropriate, and proportionate within a democratic society. These restrictions are designed to protect national security, defense, public security, and the prevention, investigation, detection, and prosecution of criminal offenses or unauthorized use of electronic communication systems.

The Pakistan Telecommunication (Re-Organization) Act, 1996 empowers the federal government, under section 54, to authorize individuals to intercept calls or messages for national security or for crime investigation purposes. Subsequently, Pakistan in 2016 introduced Prevention of Electronic Crimes Act (PECA) but this Act grants broad powers and allows blocking of information in vague terms, while section 38 penalizes disclosure of personal information without consent.

Despite the existence of stringent legislation, there remains a palpable need for proactive enforcement by both the judiciary and law enforcement agencies. While privacy rights are fundamental, it is crucial to discern between private and whistleblower obligations. Recent incidents of clandestine video recordings involving judicial, political, and administrative figures underscore rampant misconduct and corruption. It is, thus, imperative for Parliament to promulgate laws that safeguard citizens’ privacy while holding wrongdoers accountable, for fostering a culture of transparency and accountability in Pakistan.

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Ms. Huzaima Bukhari, MA, LLB, Advocate High Court, Visiting Faculty at Lahore University of Management Sciences (LUMS), member Advisory Board and Visiting Senior Fellow of Pakistan Institute of Development Economics (PIDE), is author of numerous books and articles on Pakistani tax laws. She is editor of Taxation and partner of Huzaima & Ikram and Huzaima Ikram & Ijaz, leading law firms of Pakistan. From 1984 to 2003, she was associated with Civil Services of Pakistan. Since 1989, she has been teaching tax laws at various institutions including government-run training institutes in Lahore. She specialises in the areas of international tax laws, ML/CFT related laws, corporate and commercial laws. She is review editor for many publications of Amsterdam-based International Bureau of Fiscal Documentation (IBFD) and contributes regularly to their journals.

She has coauthored with Dr. Ikramul Haq many books that include ?Tax Reforms in Pakistan: Historic & Critical Review, Towards Flat, Low-rate, Broad and Predictable Taxes (revised/enlarged edition of December 2020), Pakistan: Enigma of Taxation, Towards Flat, Low-rate, Broad and Predictable Taxes, Law & Practice of Income Tax, Law , Practice of Sales Tax, Law and Practice of Corporate Law, Law & Practice of Federal Excise, Law & Practice of Sales Tax on Services, Federal Tax Laws of Pakistan, Provincial Tax Laws, Practical Handbook of Income Tax, Tax Laws of Pakistan, Principles of Income Tax with Glossary and Master Tax Guide, Income Tax Digest 1886-2011 (with judicial analysis).

She regularly writes columns/articles/papers for Pakistani newspapers and international journals. She has so far contributed over 1950 articles and research papers on issues of public finance, taxation, economy and on various social issues in various journals, magazines and newspapers at home and abroad.

?X (formerly Twitter):? @Huzaimabukhari

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Dr. Ikramul Haq, Advocate Supreme Court, specialises in constitutional, corporate, media, ML/CFT related laws, IT, intellectual property, arbitration and international tax laws. He was full-time journalist from 1979 to 1984 with Viewpoint and Dawn. He served Civil Services of Pakistan from 1984 to 1996. He established Huzaima & Ikram in 1996 and is presently its chief partner as well as partner in Huzaima Ikram & Ijaz. He studied journalism, English literature and law. He is Chief Editor of Taxation.? He is country editor and correspondent of International Bureau of Fiscal Documentation (IBFD) and member of International Fiscal Association (IFA). He is Visiting Faculty at Lahore University of Management Sciences (LUMS) and member Advisory Board and Visiting Senior Fellow of Pakistan Institute of Development Economics (PIDE).

He has coauthored with Huzaima Bukhari many books that include Tax Reforms in Pakistan: Historic & Critical Review, Towards Flat, Low-rate, Broad and Predictable Taxes (revised & Expanded Edition, ?Pakistan: Enigma of Taxation, Towards Flat, Low-rate, Broad and Predictable Taxes (revised/enlarged edition of December 2020), Law & Practice of Income Tax, Law , Practice of Sales Tax, Law and Practice of Corporate Law, Law & Practice of Federal Excise, Law & Practice of Sales Tax on Services, Federal Tax Laws of Pakistan, Provincial Tax Laws, Practical Handbook of Income Tax, Tax Laws of Pakistan, Principles of Income Tax with Glossary and Master Tax Guide, Income Tax Digest 1886-2011 (with judicial analysis).

He is author of Commentary on Avoidance of Double Taxation Agreements, Pakistan: From Hash to Heroin, its sequel Pakistan: Drug-trap to Debt-trap and Practical Handbook of Income Tax. Two books of poetry are Phull Kikkaran De (Punjabi 2023) and Nai Ufaq (Urdu 1979 with Siraj Munir and Shahid Jamal).

He regularly writes columns/article/papers for many Pakistani newspapers and international journals and has contributed over 2500 articles on a variety of issues of public interest, printed in various journals, magazines and newspapers at home and abroad.

?X (formerly Twitter):? DrIkramulHaq

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Abdul Rauf Shakoori, Advocate High Court, is a subject-matter expert on AML-CFT, Compliance, Cyber Crime and Risk Management. He has been providing AML-CFT advisory and training services to financial institutions (banks, DNFBPs, Investment companies, Money Service Businesses, insurance companies and securities), government institutions including law enforcement agencies located in North America (USA & CANADA), Middle East and Pakistan. His areas of expertise include legal, strategic planning, cross border transactions including but not limited to joint ventures (JVs), mergers & acquisitions (M&A), takeovers, privatizations, overseas expansions, USA Patriot Act, Banking Secrecy Act, Office of Foreign Assets Control (OFAC).

Over his career he has demonstrated excellent leadership, communication, analytical, and problem-solving skills and have also developed and delivered training courses in the areas of AML/CFT, Compliance, Fraud & Financial Crime Risk Management, Bank Secrecy, Cyber Crimes & Internet Threats against Banks, E–Channels Fraud Prevention, Security and Investigation of Financial Crimes. The courses have been delivered as practical workshops with case study driven scenarios and exams to insure knowledge transfer.

His notable publications are: Rauf’s Compilation of Corporate Laws of Pakistan, Rauf’s Company Law and Practice of Pakistan and Rauf’s Research on Labour Laws and Income Tax and others.

His articles include: Revenue collection: Contemporary targets vs. orthodox approach, It is time to say goodbye to our past, US double standards, Was Due Process Flouted While Convicting Nawaz Sharif?, FATF and unjustly grey listed Pakistan, Corruption is no excuse for Incompetence, Next step for Pakistan, Pakistan’s compliance with FATF mandates, a work in progress, Pakistan’s strategy to address FATF Mandates was Inadequate, Pakistan’s Evolving FATF Compliance, Transparency Curtails Corruption, Pakistan’s Long Road towards FATF Compliance, Pakistan’s Archaic Approach to Addressing FATF Mandates, FATF: Challenges for June deadline, Pakistan: Combating the illicit flow of money, Regulating Crypto: An uphill task for Pakistan. Pakistan’s economy – Chicanery of numbers. Pakistan: Reclaiming its space on FATF whitelist. Sacred Games: Kulbhushan Jadhav Case. National FATF secretariat and Financial Monitoring Unit. The FATF challenge. Pakistan: Crucial FATF hearing. Pakistan: Dissecting FATF Failure, Environmental crimes: An emerging challenge, Countering corrupt practices .

?X (formerly Twitter):?Adbul Rauf Shakoori

?The recent publication, coauthored by these writes, is Pakistan Tackling FATF: Challenges & Solutions, available at:?

https://www.amazon.com/dp/B08RXH8W46? and ?

https://aacp.com.pk/product/pakistan-tackling-fatf-challenges-solutions/

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