ISLAMABAD: The Lahore High Court’s (LHC) reinterpretation of the applicability of the Official Secrets Act (OSA), noting that suspects arrested under the Act by military authorities no longer need to be presented before a magistrate, has sparked a debate regarding the arrest and trial processes under military jurisdiction.

The case was brought forward by Saima Hassan, wife of retired military officer Hassan Bin Aftab, who has been in custody since Sept 19, 2023.

Represented by Advocate Inamur Rahim, Ms Hassan alleged that her husband, after serving 27 years in the military, was detained under the OSA and the Pakistan Army Act (PAA) without being allowed access to his family or legal counsel.

The petition argued that as per the OSA, the proper procedure for arrest and trial includes presenting the accused before a magistrate. However, Mr Aftab was directly subjected to military court proceedings, bypassing this legal formality.

Recent Lahore High Court verdict held that suspects under Official Secrets Act don’t need to be produced before a magistrate

Justice Sadaqat Ali Khan stated that while the OSA originally required suspects to be produced before a magistrate, subsequent amendments to the PAA made this requirement obsolete.

He emphasised that the current legal framework categorises OSA violations triable by the military courts, falling entirely under the jurisdiction of Pakistan Army Act.

The judge also highlighted that this change aligns with practices introduced after the OSA was linked with the PAA, streamlining military trials for alleged breaches of national security.

Advocate Rahim contested the court’s interpretation, asserting that presenting suspects before a magistrate remains a fundamental safeguard against arbitrary detention.

Talking to Dawn, he referenced past cases, including the trial of former prime minister Imran Khan, where proper judicial procedures were observed under similar circumstances.

Mr Khan was tried by an anti-terrorism court, presided by a district and sessions judge under the OSA in the cipher case. His conviction has been set aside in an appeal by the Islamabad High Court (IHC).

The lawyer also pointed to a petition pending before the Supreme Court, challenging the convictions of 29 civilians tried in military courts during the tenure of Pakistan Tehreek-i-Insaf (PTI) government.

These individuals were reportedly detained without notification to their families and were tried without being presented before a magistrate, raising concerns about transparency and due process.

The case has reignited debate over amendments to the OSA made by the previous Pakistan Democratic Movement (PDM) government led by the Pakistan Muslim League-Nawaz (PML-N). These amendments significantly broadened the scope of the OSA, incorporating modern communication methods and expanding the definition of military documents and installations.

“Documents” now include any written, electronic, digital, or intangible records pertaining to military procurements and capabilities.

Military installations and related activities have been redefined, bringing broader areas under the Act’s jurisdiction.

Critics argue that these changes grant excessive powers to intelligence agencies, raising fears of misuse and lack of accountability.

Advocate Rahim claimed that the lack of transparency and legal oversight in such cases violates fundamental human rights and undermines public trust in the judicial process.

Published in Dawn, December 26th, 2024