Digital Surveillance and the Right to Privacy in Pakistan: A Constitutional and International Law Perspective

Abstract

The growth of new digital surveillance technologies has in turn radically transformed the relationship between the state and the individuals and casts deep suspicion on the question of privacy, accountability, and constitutional rule. Surveillance power in Pakistan has expanded in nearly all aspects: telecommunications surveillance, data retention regimes, biometrics and intelligence-driven online surveillance, but this has far exceeded the establishment of a consistent legal and constitutional framework to guard the right to privacy. This article discusses the issue of digital surveillance in Pakistan through the prism of constitutional and international law critically looking at the legal, institutional, and normative grounds that support the power of state surveillance. It contends that although the Constitution of Pakistan acknowledges privacy to be a fundamental right, the boundaries, subjects, and the enforceability of the same, is still not well-developed in respect of the increasing surveillance activities. Legal measures regulating interception, access to data, and national security usually put wide discretionary authority in the arms of the executive by granting executive power to executive authority, and offering meager checks and balances to prevent misuse. Comparing to the international human rights practices, especially, the ideas of legality, necessity, proportionality, and accountability, the surveillance system in Pakistan has noticeable loopholes, which could encourage the acceptance of invasive surveillance in the absence of a guarantee of individual privacy and democratic liberties. This article reveals the conflict between the governance of security and the rule of law by placing the domestic laws on surveillance in the context of constitutional jurisprudence and international and comparative law. It finds that, unless there is a more explicit interpretation of the Constitution, extensive legislation on data protection and an enhanced system for overseeing it, digital monitoring in Pakistan is set to destroy the right to privacy and compromise the rule of law in cyber space.