It is strange how the past and present mimic each other.
In the summer of 1909, in the midst of a naval arms race with Germany, a group of national security hawks in Britain schemed to introduce stronger legislation to prevent German espionage. The legislation at the time, the Official Secrets Act of 1889, was deemed too weak given some of its provisions had been watered down by the Parliament. Their proposed new draft would increase the range of offenses to which the Act would apply, but fearing Parliamentary backlash, they decided to wait for sufficient national panic to develop before they would introduce the draft.
When a German gunboat reached the port of Agadir in Morocco, it alarmed the British enough for the Official Secrets Act of 1911 to be passed by the Parliament. There was little debate or consideration over its provisions, and it passed through all stages in the Commons in just a day. Years later, this Act that would form the basis for a 1923 legislation under the same name in India – that the present-day Pakistan continues to hold onto.
More than a century after the events of 1911, we saw Pakistan’s own Parliament using the rhetoric of national security to bulldoze amendments to the Official Secrets Act with no debate, or concern for fundamental rights.
To understand just how damaging to democracy and rule of law the amendments to the Official Secrets Act, 1923 (OSA) are, we first need to consider its original framework. The Act is built around two major offenses: espionage (section 3) and disclosure of state secrets (section 5).
Section 5 gives a good sense of the overall problems that run throughout the OSA. In short, it deals with “wrongful communication of information” and states that if any person has in their possession a “secret” document or information and wilfully communicates it to any other person, or foreign power, they shall be guilty of an offense.
This provision is inherently problematic. The OSA does not define what a “secret” document is, leaving the definition to the discretion of members of the executive. It also doesn’t define numerous other terms such as “foreign power”. This legislative ambiguity was intentional. The OSA was enacted to protect the colonial state. It therefore required that maximum discretion be left in the hands of executive functionaries so that the law could be adapted to any situation, and deal with any threat. Legal certainty was a small price to pay for a colonial apparatus that harboured deep distrust for the people it ruled over through force.
The Official Secrets Act gives legal cover to the executive to label anything as secret information and prevent its disclosure. It is irrelevant whether this information may, for example, expose government corruption or misconduct. This insulates the state from accountability and transparency – two hallmarks of democracy. Sam Zarifi, the secretary general of the International Commission of Jurists, once summarised in the context of the OSA in Myanmar: “Just about anyone in possession of unpublished government documents could find themselves facing prosecution and the harsh penalties a conviction may carry. Under this law many good journalists could be prosecuted at any time.”
The Official Secrets Act was never made to enhance democratic rule, neither in Britain nor in the colonies. Secrecy was to be the dominant form of governance, as historians Peter Hennessy and Rob Shepherd writing for the Telegraph put it: “For the bulk of the 20th century the British government exhibited a genius for secrecy which made it a world leader for reticence among democracies. It was as if confidentiality was built into the calcium of a Whitehall policy-makers bones, whether they be minister or civil servant, almost as if they couldn’t help it.”
Britain’s version of section 5 of the OSA was the identically worded section 2 of the 1911 Act. Its ambiguous and broad nature was such that one Home Office report stated that 2,000 separate criminal offences could be said to be brought under it. When in 1971 a committee was appointed to review the law it found section 2 “a mess”, referring to it as a “catch-all” whose “drafting and interpretation are obscure, people are not sure what it means, or how it operates in practice, or what kinds of action involve real risk of prosecution under it.”
This is the legislation that Pakistan’s Parliament amended – an Act steeped in anti-democratic history. When our Parliament sought to amend the Official Secrets Act, it had an opportunity to change this. Instead, Pakistan’s Parliament sought to retain the ambiguity of the law while further empowering the already substantial role the military plays in our country. An initial draft that granted the Inter Services Intelligence (ISI) and Intelligence Bureau (IB) to search any person or place without a warrant sailed through the lower house. Only because a faint sliver of democracy remained in the Senate were we able to prevent this complete capitulation to the establishment.
The Official Secrets Act gives legal cover to the executive to label anything as secret information and prevent its disclosure. It is irrelevant whether this information may, for example, expose government corruption or misconduct
Yet the rest of the draft remained, and ended up becoming a law. These amendments undermine Pakistan’s democracy both in their substance and in the process that led to them.
In substance, a slew of catch-all definitions are introduced. The definition of “document” includes everything from unwritten information, contracts, and agreements. An “enemy” can be anyone who engages with any group that may be deemed prejudicial to the safety and interest of Pakistan. It also adds new offenses, chief among them being the unauthorized disclosure of the identity of members of the intelligence agencies. These definitions would worry anyone familiar with how casually this country labels people “foreign agents” or groups as “foreign funded”. They also ensure that the problems already inherent in Section 5 are compounded. Any document can be secret, and any person can be caught within the broad definition of an “enemy”. Journalists are the most likely group of individuals to be caught in the crosshairs of the Official Secrets Act. This has been the case in numerous other jurisdictions where this law exists, such as when in 2002 journalist Iftikhar Gilani was arrested under the Official Secrets Act in India for having documents highlighting human rights abuse in Kashmir in his possession.
We are supposed to take comfort in the fact that the Federal Investigation Agency (FIA) is the investigative agency under the Act and requires a search warrant, but given the incredibly broad nature of the offences under the Act, the FIA may as well have free reign to arrest anyone it wants. This is in addition to the law’s existing provision which gives power to the armed forces to arrest any person, without a warrant, in the vicinity of a “prohibited place” on a reasonable suspicion of being involved in an offense under the Act. Given the long and broad list of prohibited places in the Act, as well as the number of military owned areas in the country, there is almost no limit to what can be achieved to curb dissent through the Official Secrets Act.
When the Parliament sought to amend the Official Secrets Act, it had an opportunity to change the anti-democratic history of the law . Instead, the Parliament sought to retain the ambiguity while further empowering the already substantial role the military plays in Pakistan.
One could argue that laws on espionage and state secrets are necessary. Yet, the problem is that these laws are left intentionally vague, overbroad, and disproportionate so that they can be used to stamp out rights such as freedom of speech and information. Such laws enhance Pakistan’s civil-military imbalance rather than reigning it in. Had Parliament considered how this law may be abused, it may have been more circumspect. It may have, for example, considered adding a ‘public interest’ defense to the law, protections for journalists, and narrowed the scope and ambit of Section 5 as the UK did to its own legislation in 1989. However, a Parliament that was supposed to represent the people, was too busy representing the interests of the establishment. After all, the initial draft of the amendments demonstrates that these amendments were being introduced for the establishment.
A 2006 report in India on the Official Secrets Act once said that it was introduced in a “colonial climate of mistrust of people and primacy of public officials in dealing with citizens. OSA created a culture of secrecy. Confidentiality became the norm and disclosure the exception.” In Pakistan, it seems little has changed since then.
The writer is a lawyer and former member of the visiting faculty at the Lahore University of Management Sciences. He did his LL.M. from New York University where he was a Hauser Global Scholar. He is currently based in Singapore.
