A bill to amend the century-old Official Secrets Act was referred to the relevant standing committee of the Senate on Wednesday after it faced fierce opposition from both sides of the aisle when taken up for passing in the upper house of Parliament.

The outgoing government quietly got the Official Secrets (Amendment) Bill, 2023 passed by the National Assembly (NA) yesterday in a bid to grant blanket powers to intelligence agencies, which will be able to raid and detain any citizen, even under suspicion of them breaching the law.

According to the Senate agenda for today, Interior Minister Rana Sanaullah Khan was to move the bill for passing.

However, in his absence, Law Minister Azam Nazeer Tarar presented the bill amid loud opposition from both sides of the aisle.

Following that, Senate Chairperson Sadiq Sanjrani said the Official Secrets (Amendment) Bill, 2023 stood referred to the standing committee.

The bill

The amendments in the secrets act have broadened the definitions of military installations and bring digital and modern means of communication into the law’s ambit. According to experts, this could bring vloggers and bloggers within the ambit of the law as well.

The definition of a “document” has been widened as it now includes “any written, unwritten, electronic, digital, or any other tangible or intangible instrument” related to the military’s procurements and capabilities.

Likewise, the definition of “enemy” introduced in the proposed law states: “Any person who is directly or indirectly, intentionally or unintentionally working for or engaged with a foreign power, foreign agent, non-state actor, organisation, entity, association or group guilty of a particular act… prejudicial to the safety and interest of Pakistan.”

Experts term this section “against the principles of natural justice” as it treats unintentional contact at par with planned espionage.

The proposed law is going to empower the Inter-Services Intelligence (ISI) and Intelligence Bureau (IB) to raid and arrest a citizen over the suspected breach of official secrets, while simply disclosing the name of a secret agent will also be considered an offence.

Through an amendment in Section 11, the lower house gave vast powers to officials of intelligence agencies as they would be allowed to “at any time, enter and search any person or place, without warrant, and if necessary, by use of force, and seize any document, sketch, or like nature, or anything which is or can be evidence of an offence committed or suspecting of been committed, under this act”.

An amendment in Section 6 proposes a penalty on a citizen with a prison term of three years for disclosing the “identity of the members of the intelligence agencies or the informants or sources”.

Moreover, clauses related to prohibited areas have also been amended and it would be an offence if “someone access, intrude, approach or attack any military installation, office, camp office or part of building”.

At present, the offence is restricted to such movement during the time of war only, however, the proposed legislation has expanded this to peacetime as well.

Section 3 is being renamed from “penalties for spying” to “offences”.

With slight amendments to the existing offences, it has also added the photography through drone cameras of prohibited areas as a crime.

The amendments in Section 4 also term a visit to the address of a foreign agent within or outside Pakistan as an offence.

The proposed law empowers the Federal Investigation Agency (FIA) and the officials of intelligence agencies to investigate suspects for violation of the Official Secrets Act.

It says: “An investigating officer under this act shall be an officer of the Federal Investigation Agency not below the rank of BPS-17 or equivalent. The said officer shall be designated by the Director General [of] FIA for the purpose of investigation. If the Director General [of] FIA deems necessary, he may constitute a joint investigation team, convene by such officer and consisting [of] such other officers of intelligence agencies as he may appoint.”

The JIT is supposed to complete the investigation in 30 working days and the challan would be submitted to the special court through public prosecutor.

The law also deals with the admissibility of the evidence and states: “All material collected during the course of inquiry or investigation, including electronic devices, data, information, documents, or such other related material, which facilitates the commission of any offence under this act, shall be admissible.”

A bare perusal of the proposed law suggests as it was drafted while keeping in mind the May 9 violence, which erupted after the arrest of PTI chief Imran Khan in a corruption case.

However, legal experts believe that it could not be used against those who had attacked military installations on May 9 since the law could not be invoked retrospectively.

A lawyer well-versed with the Official Secrets Act said that the definition of documents and providing legal cover to the raids of intelligence agencies has been changed as the superior courts passed some judgements on these subjects. However, legal experts did not rule out the possibility of these sections being applied to politicians or activists in the future.

Senators blast legislative process

Before the bill to amend the Official Secrets Act was presented, senators from both treasury and opposition benches strongly criticised the legislative process witnessed in the upper house of Parliament during the past week.

Jamaat-i-Islami Senator Mushtaq Ahmed said the past week’s legislative process had turned the house into a “joke” globally and on social media and “we are ourselves violating our rules and regulations”.

Why a “floodgate of legislations” was opened in the government’s last days, he wondered.

Referring to various bills — including the Federal Urdu University of Arts, Sciences and Technology, Islamabad (Amendment) Bill, 2023, HEC Amendment Bill 2023 and Official Secrets (Amendment) Bill, 2023 — he said these were “strategic” legislations that would have far-reaching effects on the country and history.

“The government, with few days left in its tenure, should not take up these bills,” he added.

The senator also mentioned that there was no proper opposition in the NA and it was logical to say that a bill should be passed by the Senate since it had been passed by the lower house of Parliament.

PPP Senator Raza Rabbani’s criticism was more strongly worded, who said “new traditions” were being laid down.

He said he felt he was not in the Senate but a “princely state” where “I am blindfolded, handcuffed and I parrot whatever the ministers say or whatever comes after being passed by the cabinet”.

“My right as an individual member to move an amendment against a law according to my conscience and my dictate is being taken away from me for the last 10 days,” he added.

Echoing former prime minister Zulfikar Ali Bhutto’s words and actions at the UN Security Council where he tore up a resolution, Rabbani said he too was “wasting my time over here and I will tear up your bills”.

The veteran senator then ripped a copy of the Federal Urdu University of Arts, Sciences and Technology, Islamabad (Amendment) Bill amid the thumping of desks from some other members.

He said his rights as an individual parliamentarian were being “mauled”, adding that his proposed amendments to the Federal Urdu University of Arts, Sciences and Technology, Islamabad (Amendment) Bill were not circulated.

The senators’ right to deliberate and vote on amendments should not be taken away, he said.

“Don’t take away this right. You are doing this today. Tomorrow, when your government will end and you will return to these back benches, what legacy will you bring?

“We are setting bad precedents … The matter here is not as much of the basic principle of amendments as much as it of the basic principle of the right of an individual parliamentarian,” Rabbani said.

“I leave it in your hands,” he concluded his speech, addressing the Senate chairperson.

Jamiat Ulema-i-Islam Fazl Senator Kamran Murtaza also took exception to the Federal Urdu University of Arts, Sciences and Technology, Islamabad (Amendment) Bill, saying that his party being a part of the ruling coalition did not mean that they could not voice their opinions.

“If there’s a restriction, we can go out of the house and they can represent [the government] and take responsibility for this legislation,” he added.

Murtaza said he had asked the parliamentary leader of his party in the NA if had given his consent for the bill, but “he clearly said: ‘I was not consulted or told’” about the bills.

Following this heated opposition, the Federal Urdu University of Arts, Sciences and Technology, Islamabad (Amendment) Bill, 2023 and HEC Amendment Bill 2023 were also referred to the relevant standing committees.

HRCP condemns slew of ‘hastily passed’ legislations

Separately, the Human Rights Commission of Pakistan said in a statement it “strongly opposes the recent slew of hastily passed legislation[s], none of which has undergone critical deliberation even at the parliamentary level, much less public debate”.

The HRCP deemed Official Secrets Act amendment bill “draconian in scope”, saying it “gives intelligence agencies sweeping powers to enter and search any person or place without a warrant if they suspect an offence has been committed under the act.

“At the very least, this violates people’s right to privacy under Article 14 of the Constitution.”

It added that by broadening certain definitions, the legislation may be used to “indiscriminately charge people who have no intent of committing an offence under the act”.

“In making it a crime to ‘incite, conspire, attempt, aid or abet the commission of an offence under the act’, the amendments also broaden the scope for targeting dissidents and political rivals in the future,” the statement highlighted.

The HRCP also referred to the passing of the Pakistan Army (Amendment) Act 2023 by both houses of Parliament at “breakneck speed”, noting that it “criminalised defamation of the armed forces, including online”.

In so doing, it “violates the right to freedom of expression of retired military personnel under Article 19, as well as their right to participate in public life under Article 17.

“Additionally, the bill sanctions the armed forces’ engagement in ‘national development and advancement of national or strategic interest’.”

The HRCP “deplores this attempt to seek legislative approval for military involvement in areas to which it has no moral or political claim,” the statement read.

On the Contempt of Majlis-e-Shoora (Parliament) Bill, 2023, which was passed by the NA and Senate last month, the HRCP said it not just “violates people’s constitutional right to freedom of expression under Article 19, but also makes it harder to hold elected representatives accountable, while contravening people’s right to participatory governance”.

Moreover, allowing the envisaged contempt committee to award punishment “violates the trichotomy of powers because judicial power cannot be exercised by the legislature, nor should legislators be judges in their own cause”, it added.

While HRCP upheld the concept of parliamentary supremacy, the content of the law—which was “ambiguous and over-broad” — and the manner in which it was passed, were both cause for concern, the statement said.

Moreover, the statement added, the Personal Data Protection Bill and E-Safety Bill, which were approved by the federal cabinet in July “without any sign of deliberation or debate, are cause for great concern”.

“We support the reservations of digital rights activists who have pointed out that these bills do not meet international standards of data privacy and will curtail rather than protect digital rights”, the HRCP said.

“The government would do well to remember that its legitimacy and authority spring from the quality of its governance and its ability to respect, protect and fulfil citizens’ fundamental rights.” the statement concluded.

The senators also demanded and in-camera briefing on terrorism during the session.

Additional input from APP