• HRCP, SCBA, PBC term grant of sweeping powers to agencies ‘draconian’
• Legal expert asks who will spy if agencies tasked with police functions
KARACHI: The government’s recent move to amend the Official Secrets Act has not gone down well, with many apprehending misuse of the overarching and vague terminology that have been introduced in the 100-year-old law.
Human rights defenders view the proposed changes to the Raj-era legislation with a great deal of suspicion and skepticism, while the legal community has vowed to challenge the amendments in court, if they pass into law.
The rights defenders and jurists Dawn spoke to were unanimous in their view, calling the proposed law “vague” and “harsh”, and terming it an affront to the personal liberties and fundamental rights of citizens, which are fully guaranteed in the Constitution.
Apart from giving intelligence agencies blanket powers to raid and detain any citizen, even on the mere suspicion of breaching the law, the proposed law also seems to seek control over “hearts and minds” by declaring “written or unwritten” communications liable to be considered evidence.
Terming the law ‘draconian’ in scope, the Human Rights Commission of Pakistan (HRCP) says that the sweeping powers it grants to enter and search any person or place without a warrant “at the very least… violates people’s right to privacy under Article 14 of the Constitution”.
By broadening certain definitions, the act may be used to indiscriminately charge people who have no intent of committing an offence under the act, says a recent statement issued by HRCP chairperson Hina Jillani.
Issues of definition
Col (retired) Inamur Rahim, a former army JAG lawyer who specialises in cases before military courts, told Dawn the broadening of the definition of ‘enemy’ had made the language quite vague.
The proposed definition now includes: “any person who is directly or indirectly, intentionally or unintentionally working for or engaged with the foreign power, foreign agent, non-state actor, organisation, entity, association or group guilty of a particular act tending to show a purpose that is prejudicial to the safety and interest of Pakistan”.
A similarly sinister provision is the amendment to Section 4, which pertains to: “Communication with enemy or foreign agents to be evidence of commission of certain offence.”
This ostensibly means that anyone — be they a legislator, academic or expert, professional, government officer, journalist, or even a student — could be detained and punished if they had contact with any foreign citizen.
This, Col Rahim fears, could create a big mess, as people “whose job is to keep in touch with foreign missions, diplomats, non-government organisations, etc could easily be targeted by declaring them an enemy of the state at any point in time”.
“This may be done on the basis of personal likes or dislikes,” he adds.
Former Sindh High Court Bar Association president Barrister Salahuddin Ahmed, who specialises in constitutional matters, also echoes these concerns.
Mr Ahmed says that under the kind of definitions that are being proposed, “anyone who even might be helping someone else in a good faith, could also be considered as an enemy [of the state].
“This is a strange law,” he says, demanding the government revise it immediately.
Supreme Court lawyer Umer Ijaz Gilani points out that by empowering intelligence agencies to carry out searches and seizures and collect evidence to be presented in court, the law would make “intelligence officials liable to cross-examination and the concomitant public scrutiny”.
This, he says, would be a radical departure from the traditional concept of spy agencies, are by their very definition supposed to remain stealthy and behind the scenes, and whatever information they gather is then shared with law enforcement agencies, who perform the actual policing operations.
“When Pakistan’s spy agencies will perform traditional police functions — arrests, searches and seizures — who will do the actual spying?”, he asks, pointedly.
Vow to challenge
The legal community has also come out in opposition to the proposed changes to the secrets law, with the Supreme Court Bar Association (SCBA) terming the proposed legislation “unlawful, undemocratic, unconstitutional and a blatant violation of the human rights, natural justice, and sheer violation of the Articles 4, 8, 9, 10, 10A and 14 of the Constitution.”
SCBA said granting broad powers to the intelligence agencies will undermine the fundamental rights of individuals, including the right to privacy, dignity and a fair trial.
The association declared its intention to resist all hassled legislation, including amendments to the Official Secrets Act and announced that it would be challenged before a court of law.
The apex legal body in Pakistan, the Pakistan Bar Council, also echoed the sentiments of their colleagues, terming the grant of sweeping powers to intelligence agencies “unethical and against the norms and justice as well as violation of articles 8, 9 and 10 of the Constitution”.
They also announced their intention to oppose any such move “tooth and nail”.
Published in Dawn, Aug 5th, 2023