On Secrets
A version of this essay was published in https://dissenttoday.net/ on August 12, 2023 titled ‘Official Secrets Act: How Parliament Surrendered Democracy To The Military Establishment‘
It is strange how 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 Parliament. Their proposed new draft would increase the range of offences 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 Parliament. There was little debate or consideration over its provisions, and it passed through all stages in the Commons in a single day. It would be this Act that would form the basis for the 1923 legislation of the same name in India that survives to this day in Pakistan.
More than a century after the events of 1911, we saw our own Parliament using the rhetoric of national security to bulldoze amendments to the 1911 Act’s twin with no debate, no concern for fundamental rights, and no consultation.
To understand just how damaging to democracy and the rule of law in Pakistan 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 offences: 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 sum, 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 offence.
This provision is inherently problematic. The OSA does not define what is a ‘secret’ document or information leaving this completely 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 OSA 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. Insulating the state from accountability and transparency – two hallmarks of democracy. This would become a perennial problem for citizens of post-colonial states that inherited the OSA. As 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 OSA 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 estimate put it 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 OSA, it had an opportunity to change this. Instead, 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 ISI and 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.
Yet the rest of the draft remained and became law. These amendments fail 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 offences, 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 cross-hairs of the OSA. This has been the case in numerous other jurisdictions where the OSA exists, such as when in 2002 journalist Iftikhar Gilani was arrested under the OSA 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 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 OSA’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 offence 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 OSA.
The substance of the OSA does not sit well within a democratic framework and the promises made in Pakistan’s Constitution. Neither does the process that led to its amendments. The Constitution guarantees in Article 19A that every citizen shall have the right to information when it comes to matters of public importance, yet Parliament neither debated nor even considered how this right and the 2017 Right to Access to Information Act could be squared with the OSA and the amendments it was proposing. Demonstrating the complete abdication of democratic responsibility by Parliament.
To be sure, one could argue that laws on espionage and state secrets are necessary. Yet, the problem is not with having such laws, rather, it is with laws that are left intentionally vague, over broad, and disproportionate so that they can be used to stamp out rights such as freedom of speech and information. Laws that 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’ defence 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, if the initial draft of the amendments demonstrate anything, it was really for them that these amendments were being introduced.
A 2006 report in India on the OSA once described its background as being 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.
Published by Dissent Today on August 12, 2023
