Law & official secrets By A.G. Noorani - Saturday, March 12, 2011

Source :

THE law on official secrets has the same parent as the proposal for a privacy law. The panic that grips ministers, politicians and other public figures, whenever the press exposes their misdeeds, drives them to demand enactment of a privacy law and enforcement of the Official Secrets Act.
In 1911, Britain enacted the Official Secrets Act. The Indian Official Secrets Act, 1923 was its faithful replica. It is still on India`s statute book. While this writer is not aware ofthe situation in Pakistan, all laws on official secrecy are subject to the fundamental right to freedom of speech and expression guaranteed by the constitution of Pakistan (Article 19) and India (Article 19[1][a] and [2]).
Both constitutions permit the state only to impose “reasonable restrictions by law” on any of the grounds specified in those provisions. The reasonableness of any restriction is entirely for the courts to decide.
The crucial provision — Section 5 of the Act of 1923 is patently unconstitutional. It is based on Section 2 of the British Act of 1911 which received sharp criticisms from the courts and official inquiries. Section 5, paraphrased to weed out legalese, says that if any person having in his possession any secret document or information “which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the state or friendly relations with foreign states” or which has been obtained in violation of the act or in confidence by an official, “wilfully communicates” it to an unauthorised person or uses it in any manner “prejudicial to the safety of the state” shall be guilty of an offence under the act.
However, while British law requires the prior sanction of the attorney general for a prosecution, the Act of 1923 contained no such safeguard. In Britain the offence is triable by judge and jury. Not so in India. Finally Britain reformed the law by the Official Secrets Act, 1989, but it has been criticised for relaxing the old law in some respects while making it more stringent in others. The courts in South Asia will be entitled to consider the censures in Britain on Section 2 of the British Act of which Section 5 of the Act of 1923 is a replica. Sunday Telegraph`s
In Britain, it came to be universally recognised that Section 2 of the Act of 1911 was wholly inappropriate in a democracy. In 1971, the editor and two others were prosecuted when the paper published a confidential assessment of the situation in Nigeria written by the defence adviser at the British high commission in Lagos. They were all acquitted in February 1971. In the course of his summing up, Justice Caulfield remarked that Section 2 should be “pensioned off”. The British government appointed a committee, headed by Lord Franks.
Its report condemned Section 2 in unequivocal terms: “The main offence which Section 2 creates is the unauthorised communication of official information (including documents) by a Crown servant. The leading characteristic of this offence is its catch-all quality. It catches all official documents and information. It makes no distinctions of kind, and no distinctions of degree. A blanket is thrown over everything; nothing escapes.”
Besides, anyone, whether a newsman or a lay person, who receives such information is liable to punishment once it is proved that he either actually knew or had reasonable ground to believe that the information was communicated to breach of the act.
However, there is a catch here to which the Franks Committee drew attention: “Ministers are, in effect, self-authorising. They decide for themselves what to reveal. Senior civil servants exercise a considerable degree of personal judgment in deciding what disclosures of official information they may properly make and to whom.”
Thus, while official leaks, a fertile source of disinformation, are protected their exposure by unravelling the whole truth is forbidden. Lord Devlin`s censure of Section 2 is very apt: “It installs as the judges of what ought to be revealed men whose interest it is to conceal.”
Legally, official deception can make disclosure of an official document an act “in the interests of the state”, albeit not in those of the government. Prof H.W.R. Wade, testified at the Ponting trial that if a civil servant was convinced of deception by the ministers, it “might be in the public interest for him to give his information direct to parliament”. For, the government of the country “could not be run as it does now if parliament was consistently fed with wrong information”. The Times
In the case of Clive Ponting, a senior official of the defence ministry, the trial judge Justice McCowan in his summing up to the jury interpreted the words “in the interests of the state” to mean “the policies of the state”, adding “the policies of the state mean the policies laid down by those recognised organs of government and authority” (, Feb 2, 1985). The jury rejected the interpretation and brought a verdict of `not guilty`. The Guardian,
In the House of Lords, Lord Denning criticised the judge`s interpretation. In his view, the words mean “the interests of the country or realm” ( March 21, 1985).
The Act of 1923 was enacted in the colonial era. Even as it stands today, the defence of “public interest” will be available to the accused. The prosecution will have to establish that the disclosure is “likely to affect … the security of the state” etc or was made or obtained “in contravention of the act” and was communicated “wilfully” to a person other than the one to whom he is authorised to communicate it. The likelihood of harm to the public interest or “the interests of the state” is an essential ingredient of the offence in a law on official secrets in any democracy.
The writer is an author and a lawyer.

No comments:

Post a Comment