This week, the Lahore High Court has passed a seminal judgment reaffirming the right to phone data privacy which is protected by Articles 13 and 14 of the Constitution of the Islamic Republic of Pakistan, as well as search and seizure related provisions of criminal laws. Although the right to digital privacy has always existed in our law, and has been acknowledged in previous judgments too, the present case has articulated this right in greater detail than ever before.
The case is titled Rehmatullah v The State has been decided by a 2-member bench of the Court comprising Justice Ali Baqar Najafi and Justice Muhammad Amjad Rafiq. Justice Muhammad Amjad Rafiq who wrote the judgment, previously served as Additional Prosecutor General for the Punjab and is well-known for his expertise in the field of criminal law.
BACKGROUND FACTS
Rehmatullah, a Madrassah student, was arrested by the police in 2022 while he was allegedly giving Al-Qaeda propaganda books and sticker to someone in a small town caller Zafarwal in Narowal District. He was charged and tried under numerous provisions of the Anti-terrorism Act, 1997 which criminalizes spreading propaganda literature at the behest of terrorist outfits.
During the trial, the Police failed to produce any solid evidence of recovery of the propaganda material from Rehmatullah. All they could place on record were images of propaganda books etc. obtained from the mobile phone of the accused, which the Police had taken into custody and searched without a warrant. The accused was convicted by the Anti-Terrorism Court and sentenced for upto 2 years imprisonment and some fine. He appealed.
THE HIGH COURT VERDICT
Through a 20-page detailed judgment signed on 14th July, 2023, the High Court has allowed the appeal and acquitted. The Court has pointed various gaps in the prosecution story which cast doubt. The issue which the Court has highlighted in the greatest detail is the inadmissibility of data obtained by the policy from the mobile phone of the accused, without obtaining prior approval of such search from the Magistrate. The Court has pointed out that the right to privacy of home guaranteed by Article 14 also covers the right to privacy of personal data stored in mobile phones and on the internet because in modern times, “our phone is not less than a home”. The judgment also relies heavily upon international conventions which Pakistan has signed as well as US constitutional jurisprudence on the same subject. It quotes with approval the ratio of Riley v. California (2014) where Chief Justice John Roberts here: “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.”
RELEVANT EXCEPRTS
Relevant excerpts from the judgment are reproduced below for ease of reference:
“12….We are also seriously concerned about extraction of data from a personal mobile phone, may be of an accused, without her consent; which is not a good practice as it opposes to constitutional guarantee of right to privacy and we feel that if the accused was not ready to accord consent, then at least permission from magistrate should have been taken. Though in this case, Anti-terrorism Court supervised the
processes of investigation whenever needed but we have not found any such permission in the record nor Learned APG has shown the same to us, therefore, retrieval of data from mobile phone of accused/appellant by PFSA without the consent of accused amounts to self-incrimination prohibited under Article-13 of the Constitution of the Islamic Republic of Pakistan, 1973, therefore, such evidence is ruled out from consideration.13. Extracting information from a personal phone of accused during a criminal process is a serious issue which attracted our attention to examine the law on the subject. In this modern day, we are virtually living in our cell phones, chatting with our nears and dears, talking through audio or video calls, sharing material in public and private, passing messages, throwing information, pasting advertisements and storing images, audios-video clips, subject information and what not, therefore, our phone is like or not less than a home. Every relation domestic or private which the people keep within four walls of their house is legally protected under the Constitution, that is the reason dignity of a man and, subject to law, the privacy of home is inviolable right of every individual as per Article 14 (1) of the Constitution of the Islamic Republic of Pakistan, 1973. …
…[A]ny information which the person wants to keep secret in his cell phone cannot be extracted except with his consent or as the law directs because privacy of home is subject to law as reflected from Article 14 above; therefore, if his limits or collection of information are against the law of land, then he can well be restricted through the process of law. As a fundamental constitutional right, the right to privacy is meant to take precedence over any other inconsistent provisions of domestic law…”
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umer.gilani@lawandpolicychambers.com
FULL JUDGMENT
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