Leaking democracy

THE recent spate of leaked audios of conversations among PML-N government leaders as well as PTI leaders is a matter of grave concern for the right to privacy, cybersecurity and civilian supremacy, and it indicates meddling in politics by undemocratic forces.

Efforts seem to be on to manoeuvre the political discourse with a well-thought-out plan using private conversations between civilian politicians. While some would argue for the need for greater transparency and accountability of elected leaders as well as government officials, it is important that such efforts be rooted in the due process of law, which is legal and constitutional. We have none of those.

The right to privacy is enshrined in Article 14 of the Constitution that concerns the inviolability of the dignity of a person and the privacy of home. The Supreme Court, on several occasions, has outlined the red lines regarding the interception of private conversations through the tapping of phones and other forms of surveillance. In the Shehla Zia case, the Supreme Court said that the right to life guaranteed by Article 9 of the Constitution includes the right to protection from encroachment on privacy and liberty. In the Benazir Bhutto case, the Supreme Court confirmed the surveillance of the superior judiciary, legislators, journalists, and government leaders as illegal, immoral and unconstitutional, as there is no legal justification for it. The court also stated that the “privacy of home” in the Constitution is not limited to a physical house but also extended to public spaces.

In the M.D. Tahir case, the Supreme Court affirmed that conversations over the phone are private and intimate, and the Constitution protects them. Similarly, in the early 1990s, the Supreme Court in the Manzoor Ahmad case ruled that eavesdropping, phone tapping, and photographing something inside the home are invasions of privacy and unconstitutional.

The law prohibits the kind of surveillance of government and opposition leaders that we are witnessing.

Apart from the rich precedents set by the Supreme Court, the law too prohibits such surveillance of government and opposition leaders that we are witnessing as something seemingly normal today. The Investigation for Fair Trial Act, 2013, governs interception and electronic surveillance, which is only permissible when carried out against a suspect involved in “anti-state or terrorist” activity, only upon the production of a warrant from a judge of the concerned high court, and not allowed at the behest of the intelligence agencies. Though these are broad and vague terms, they certainly do not cover elected officials who are being surveilled currently without any warrants.

In the Justice Qazi Faez Isa case, Justice Mansoor Ali Shah said that intelligence agencies do not have carte blanche. The process under the Fair Trial Act involves notification by a law-enforcement agency of an authorised officer — not below BPS-20 — to make an application for the issuance of a warrant of surveillance or interception. Then a report has to be prepared for acquiring a warrant of surveillance or interception as per the Fair Trial Rules, 2013. That report has to be presented to the head of the department who has to approve it before it is submitted to the relevant minister for permission to make an application to the judge. The report has to be presented to the interior minister who can then examine the report and grant full or partial permission, or decline the request with a written order and recommendations. The report then has to be presented to the designated judge of the high court. The warrant, if issued, is applicable for up to 60 days and can be reissued if the judge is satisfied.

Currently though, even the ministers, judges and government officials who are supposed to authorise the interception are caught by surprise when their private conversations are leaked. It is shocking that Interior Minister Rana Sanaullah recently stated that someone from within the government offices leaked these audios for money. There needs to be a much deeper investigation than a casual statement.

These audio leaks also put under question the cybersecurity of the highest offices of government in the country. The prime minister’s is the most powerful and sensitive post, and if his conversations are being surveilled and leaked, it can be a major security threat as well as cast questions over the cybersecurity arrangements presumably put in place by the intelligence and law-enforcement agencies and these agencies’ competence.

Last year, the cabinet had approved an overarching National Cybersecurity Policy, but its effective implementation is still awaited. In the era of hacks and spies, this is all the more critical. Moreover, a draft Data Protection Bill has been under discussion for over two years now and still has not been introduced in parliament. The government transition should not have affected it since the IT minister, the MQM’s Amin Ul Haq, has retained his post in cabinet.

These audio leaks also raise critical questions regarding the current political deadlock the country faces. Why is it that only PML-N and PTI leaders are being targeted? Their issues with the establishment are no secret. This also underscores a history of abuse of the law by intelligence agencies meddling in politics, despite high claims to the contrary, as well as the surveillance of judges, politicians and government officials.

It would be prudent for political parties not to fall for audio leaks against each other, especially since they all tend to suffer due to such surveillance. Rather than resorting to opportunism, red lines need to be drawn by political parties jointly regarding the efforts by undemocratic forces to meddle in politics. They seem to be shocked each day a leak surfaces.

There also has been a strategy by political parties, especially the PTI, to demonstrate that audio leaks are fake. In an era where technology can be easily used to manipulate audios, videos and photographs, including ‘deep fakes’, this is an effective strategy. This can also delegitimise such attempts. However, it is important for there to be technological capability on the part of civilian law-enforcement agencies to determine the authenticity of such evidence if collected legally and admitted in the courts of law, along with the accountability of those who carry out illegal and unconstitutional surveillance of the people’s representatives.

The writer is director of Bolo Bhi, an advocacy forum for digital rights.

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