Secrets of Official Secrets Act
Updated Friday Aug 04 2023
Over seven decades after independence, rather than freeing ourselves from the oppressive laws introduced by the British, Parliament is bulldozing amendments to make them even more draconian. The Official Secrets Act 1923 (OSA) has its roots in the deep culture of secrecy, control and subjugation, which were the hallmark of the British Raj.
The OSA, as it applies in Pakistan today, was in large part modelled upon the Official Secrets Act 1911 of England. According to a committee established to review the law in England, ‘the drafting and interpretation are obscure, people are not sure what it means, or how it operates in practice, or what kinds of action involve a real risk of prosecution under it.’
As per a former British Attorney General, the 1911 Act of England, makes it a crime to ‘report the number of tea consumed per week in a government department, or the details of a new carpet in the minister’s room.’ Potentially, any information could have been classified as an official secret.
Provisions of the OSA
The OSA, as it currently applies in Pakistan, can be divided into two main parts — spying and wrongful communication of information. Section 3 of the OSA deals with penalties for spying. Section 3(1)(c) states that if ‘any person for any purpose prejudicial to the safety or interests of the State: - obtains, collects, records or publishes or communicates to any other person any secret official code or password, or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy’, it shall constitute an offence.
For an offence to be established under Section 3(1)(c), an individual must be acting in a manner that is prejudicial to the safety or interests of Pakistan. This section relates to cases of espionage, and where an individual communicates information which is or may be useful to an enemy.
The ambiguities and the catch-all sections in the OSA, as it applies in Pakistan, increase the potential for abuse.
Section 5 relates to wrongful communication of information. Section 5(1)(a) states if ‘any person having in his possession or control any secret official code or password or any sketch, plan, model, article, note, document or information which relates to or is used in a prohibited place or relates to anything in such a place, or which has been made or obtained in contravention of this Act… or which he has obtained or to which he has had access owing to his position as a person who holds or has held office under [Government]’, wilfully communicates such information to any person other than a person whom he is authorised to communicate it to, it shall constitutes an offence.
Certain limited exceptions exist including for disclosure to a court of justice.
The first, and obvious problem with the OSA is that there is no definition of what information falls within the scope of an ‘official secret.’ The law refers to a range of potential documents and information in various formats without specifying what would constitute an official secret.
The absence of a definition leads to ambiguity. It gives the government considerable authority to determine unilaterally and arbitrarily what qualifies as a secret.
Furthermore, Section 5(1)(a) of the OSA on the face of it creates an offence for any unauthorised disclosure of information, regardless of the consequences and varying degrees.
This appears to be a ‘catch-all’ section criminalising any unauthorised disclosure. There is no requirement that the disclosure caused harm or threatened a national security interest – the disclosure of information alone is enough.
The ambiguities and the catch-all sections in the OSA, as it applies in Pakistan, increase the potential for abuse. In a parliamentary democracy, the only purpose of such laws is to punish espionage and gross violations of state secrets. The OSA must not be used as a tool to suppress political opposition.
2023 Proposed Amendment
Recently, the National Assembly has passed certain amendments to the OSA. Section 5 has been amended to criminalise wrongful and unauthorised disclosure of any document which relates to the ‘activities of the Armed Forces during peace and war.’ There is no clarity on what constitutes ‘activities of the Armed Forces’ and potentially a whole host of information could fall within this section.
Furthermore, this section applies equally in peacetime and in war. Certain limited derogation from human rights obligations is permitted in times of war, and it is unjustifiable to extend the same to peacetime.
An amendment to Section 11 gives the intelligence agencies the power to enter and search any person or place, without warrant, and if necessary, by use of force, and seize any document which is or can be evidence of an offence under the OSA. ‘Intelligence agency’ has been defined as the Director General of Inter-Services Intelligence (ISI) and the Intelligence Bureau (IB).
In our country, media regulation laws have ended up targeting journalists and free speech. Criticising the government and other state institutions has amounted to sedition.
The proposed amendment is an assault on the freedoms guaranteed in the Constitution. If passed, it will haunt the country for years to come. Crucially, there is no law under which the agencies operate in Pakistan and this section grants further blanket immunity to the agencies.
Furthermore, a definition of ‘enemy’ has been added and includes any person who is directly or indirectly, intentionally or unintentionally working for or engaged with the foreign power, foreign agent, non-state actor, or organisation, ‘guilty of a particular act tending to show a purpose that is prejudicial to the safety and interest of Pakistan.’
Potentially, any critique on the state could be classified as prejudicial to its interests. This is a license to declare human rights defenders, journalists, activists as ‘enemies’ of the state.
While the law in Pakistan is a colonial relic, in 1989, England amended its Official Secrets Act. For members of the government, unauthorised disclosure of information would only create an offence under the Official Secrets Act of 1989 if the disclosure is deemed ‘damaging’.
These ‘damage tests’ require the government to show that disclosure of secret information is damaging to one of the six identified categories. These categories include security and intelligence, defence, foreign confidence etc. For instance, for the purpose of security and intelligence, disclosure is damaging if it, ‘causes damage to the work of, or of any part of, the security and intelligence services.’
After all, vague and outdated laws are far too tempting for governments which aim to stifle dissent.
Under international law, in accordance with the Tshwane Principles which the UN Special Rapporteur on Freedom of Opinion and Expression has endorsed – (i) disclosure of the information must pose a real and identifiable risk of significant harm to a legitimate national security interest, and (ii) the risk of harm from disclosure must outweigh the overall public interest in disclosure.
Even the Tshwane Principles introduced a ‘harm test’ requiring that disclosure of information caused significant harm to a legitimate national security interest.
The introduction of ‘harm tests’ and ‘damage tests’ globally shows that not all confidential information suffices for the purpose of attracting a criminal offence under official secret laws.
In our country, media regulation laws have ended up targeting journalists and free speech. Criticising the government and other state institutions has amounted to sedition. While fundamental rights, the requirement for ‘reasonable’ restrictions, and principles of proportionality all become irrelevant. After all, vague and outdated laws are far too tempting for governments which aim to stifle dissent.
Rida Hosain is a barrister. She tweets @RidaHosain
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