THE new amendment to the Official Secrets Act, allowing the FIA through a JIT to investigate under the Act, has delivered its charge: Imran Khan and Shah Mahmood Qureshi acted in violation of the law and are to be tried for it.

The allegations against them are multifold. But at the heart of it is the position that Imran Khan leaked the sensitive content of a secret missive sent back to Pakistan by an ambassador abroad.

The central allegation is not that the missive’s being lost could lead to our coding methods being compromised. That would at least have been a punishable offence, being one of strict liability in its construct. Here the allegation is that Imran Khan maliciously leaked the contents with disregard to the harm it would or could cause to the state.

The Official Secrets Act was first put together in 1925 to punish servants of the Crown who leaked or otherwise mishandled sensitive information by way of acts of disloyalty or negligence. In a nutshell, it was legislated to prevent serving officers of the British Raj, particularly Indians in uniform, from being disloyal to the colonial order at a time of upheaval; by leaking information held secret by the empire; to the Indian people who were being suppressed.

The original language of the Act speaks of a duty to the Crown and the performance of duties under the Crown (‘on behalf of His Majesty’). The term ‘His Majesty’ has since been replaced with the word ‘government’, but the phrase that precedes this amendment is still ‘on behalf of’. Here is a clear indication of what the legislation was brought to deal with: servants of the state who were acting on behalf of its head.

In the section dealing with the unauthorised use of uniforms and documents, the Act is even more explicit regarding to whom it applies: the original language was “a person holding office under His Majesty”. It was later changed in 1956 to “a person holding office under government”.

Who has the right to decide what is secret and what is sensitive?

The Act applies to all who work under or on behalf of the government. The entire Act is structured clearly to prevent and punish spying from within sensitive areas of government. Most of it is structured to punish where a guilty mind is present: intentional disclosure is front and centre of the offences listed, and delineated in Section 3.

The lesser offences are those which involve negligence as listed in Section 5. It is here that we are told the former prime minister is in violation of the Act. By losing the deciphered cipher, Imran Khan failed to take reasonable care or conducted himself in a manner which endangered the safety of the document. But the document must have a ‘secret official code’ or ‘password’, or have “information which related to or is used in a sensitive place”. Imran Khan’s cipher was already decoded. The rest of the section spells out the chain of command to which the duty applies.

Another 2023 amendment specific to Imran Khan’s situation conveniently makes an appearance here. The addition is capitalised where the Act originally catered for a document “entrusted in confidence to him by any person holding office under government or which he has obtained OR RETAINED to which he had access owing to his position as a person who holds or has held office under government”.

Imran Khan did retain the decoded cipher. Conveniently, the amendment to the Act made via the steamrolling PDM in August 2023 seems to address this. But did it have any “secret official code” which would trigger the section in the first place?

Did it mention a “sensitive location otherwise unknown”? Critically, did Imran Khan “hold office under government”; bringing him within the ambit of the Act?

In the duties to provide information of an offence committed under the Act in Section 8, the disciplined forces of Pakistan such as the police and army are explicitly mentioned, and punishments for not assisting an investigation are laid out.

There is a scene in the popular Netflix television series, called The Crown where the young Queen Elizabeth II is presented with all of the jewelled crowns owned by the House of Windsor, ahead of a ceremony where she is required to wear one of them. The young queen decides on one of the many dazzling headpieces put before her, but seems less than completely sure. She wants to try it out for a bit first, so she asks a courtier whether she can borrow it. Her courtier looks puzzled. “Borrow?” he asks perplexed, before continuing “Your Majesty, who does it belong to, if not you?”

Who has the right to decide what is secret and what is sensitive? Is there anyone better placed than the elected prime minister to decide whether the people should or should not know when something he believes is important and secret comes to light?

How can a prime minister be shackled by the procedural limitations that are placed upon his uniformed minions by law, to ensure that they are not disloyal to him, and by extension to the state?

If the nub of the allegation is that Imran Khan used sensitive information for political gain, that is for the people to decide by vote. If it is a violation of his oath of office, that is again an issue for the people to put to their then first servant in a manner other than as contained in the Official Secrets Act.

But whether it was sensitive information and whether it was worth sharing with the people in the manner that it was, is surely a decision that can only be made by the prime minister.

Whose decision could it have been, if not his own?

The writer is a lawyer.
X (formerly Twitter): @jaferii

Published in Dawn, October 6th, 2023