Law students and law graduates in Pakistan are reporting for JURIST on events in that country impacting its legal system. Peroozi Asif Durrani is a law student following the University of London LLB external degree program at the Institute for Legal Studies (TILS). She files this from Islamabad.
On Sunday, Pakistan President Dr. Arif Alvi tweeted that he had declined to sign two bills recently passed by the National Assembly.
As God is my witness, I did not sign Official Secrets Amendment Bill 2023 & Pakistan Army Amendment Bill 2023 as I disagreed with these laws. I asked my staff to return the bills unsigned within stipulated time to make them ineffective. I confirmed from them many times that…
— Dr. Arif Alvi (@ArifAlvi) August 20, 2023
The bills have already garnered widespread attention and debate in both political and public spheres.
The Pakistan Army (Amendment) Act, 2023 aims to introduce two significant provisions to the existing legislation. Firstly, the proposed addition of Section 26-A stipulates that individuals revealing or facilitating the disclosure of sensitive information will face severe consequences, including imprisonment for a duration of up to five years. However, it clarifies that if such exposures are authorized by the army chief, they will not be deemed as violations. Secondly, the Bill seeks to implement Section 26-B, restricting any person from participating in any form of political activity for two years following their “retirement, release, resignation, discharge, removal, or dismissal from the service.”
The concerned statute introduces several provisions aimed at bolstering discipline and accountability within the armed forces. Section 55-A lays down stringent guidelines, prohibiting individuals who have been involved in sensitive duties from engaging in any form of political activity for five years after their service termination. Any violation of this provision could lead to imprisonment for a term of up to two years with a fine extending to Rs.500,000 or both unless it is authorised by the Army Chief.
Section 55-B emphasizes the significance of protecting the armed forces’ reputation and image. It states that anyone who commits an offence under the Prevention of Electronic Crimes Act (PECA), 2016 with malicious intent to undermine the armed forces will face appropriate punishment under the PECA law. The gravity of intentionally partaking in military slander was reinforced in Section 55-C. Those who “undermine, ridicule, or scandalize” the armed forces may be subject to imprisonment for a term of up to two years or a fine or both.
Furthermore, a new stipulation incorporated into Section 176-C suggests that the army chief may hold the prerogative to entrust any of the powers and responsibilities granted by, or assigned under this act, “to any officer or authority subordinate to him”.
Section 176-E ensures that the laws under this act will prevail over any inconsistent laws, rules, or regulations. Any existing laws conflicting with the provisions of this act will cease to have effect to the extent of similar inconsistency. Under this provision, upon the orders of or with the consensus of the pertinent federal or provincial authorities, the military may be enabled to engage in endeavours, whether direct or indirect, pertaining to the progress and promotion of the nation’s development and policy concerns.
Law Minister Azam Nazeer Tarar has emphasised that the proposed provisions within the amended Army Act would exclusively apply to members of the armed forces and not extend to civilians. This crucial distinction is pivotal as offences under this Act are subject to the jurisdiction of the Martial Court, where military personnel face trial. The context for this clarification arose in the aftermath of a public outcry when there were deliberations to try civilians under the Act. This issue came to the forefront following acts of vandalism carried out on the corps commander’s Lahore house, reportedly in response to the arrest of former prime minister, Imran Khan, on May 9, 2023.
Tarar’s reassurance aims to allay concerns and reaffirm the Act’s scope, ensuring that civilian individuals remain outside the purview of military tribunals, safeguarding their constitutional rights and preserving the tenets of justice and accountability. However, it must not be ignored that civilians and politicians alike have faced trial under the Army Act in the past. Tarar’s declaration can very easily fall on deaf ears unless there is a clear provision within the Act, strictly condemning the trial of civilians in Military courts. Enforcing such trials is a blatant disregard for one’s Constitutional and International human rights.
Apart from the Army Act (Amendment) Bill, 2023, President Alvi also declined to sign the Official Secrets (Amendment) Act, 2023. Recent amendments to the Secrets Act in Pakistan have brought about significant changes, such as extending the scope of military installations and encompassing modern digital means of communication within its purview. This expansion has raised concerns among experts who suggest that these amendments could inadvertently involve vloggers and bloggers under its provisions.
The latest amendment Bill suggests the modification of the definition of “document” and “enemy”. A “document” now encompasses “any written, unwritten, electronic, digital or other tangible or intangible instrument” pertaining to the military’s capabilities and acquisitions. On the other hand, “enemy” now refers to any person, directly or indirectly, intentionally or unintentionally associated with foreign powers, agents, non-state actors, organizations, entities, associations, or groups involved in acts prejudicial to Pakistan’s safety and interests. However, experts have questioned this approach, believing it to be contrary to national guiding principles as it is essentially placing incidental contacts on an equal footing with deliberate espionage
The most contentious amendment would grant extensive powers to the Inter-Services Intelligence (ISI) and Intelligence Bureau (IB), empowering them to conduct raids and arrest citizens suspected of breaching official secrets. Section 11 has been amended to provide intelligence agency officials with wide-ranging authority to enter and search individuals or places without the need for a warrant. If deemed necessary, they can use force and seize any document, sketch, or any other item that could potentially serve as evidence of an offence under this act.
The ramifications of these changes have sparked debates and concerns among the public and experts alike. Critics argue that such broad powers could have implications for freedom of expression and may inadvertently encompass individuals not originally intended to fall under the purview of the Secrets Act. Balancing the need for national security with protecting civil liberties remains a central challenge in implementing these amendments effectively and responsibly.
Focusing on the aim to enhance security measures and curb potential threats to national interests, Section 6 stipulates a penalty of three years imprisonment for any citizen who discloses the identity of members of intelligence agencies, informants, or sources.
In addition, clauses concerning prohibited areas have been revised, extending the scope of the offence. The proposed legislation criminalises any attempt to “access, intrude, approach, or attack military installations, office, camp office, or any part of a building”, not only during times of war but also during peacetime. Some amendments involve renaming provisions, such as Section 3 – “penalties for spying” – will now read “offences”. In the list of pre-existing offences, the new Bill seeks to include photography through drone cameras of prohibited areas, and visiting the address of a foreign agent within or outside Pakistan is also a criminal offence under Section 4.
The proposed law also grants enhanced powers to the Federal Investigation Agency (FIA) and to intelligence officials investigating potential contravention of the Official Secrets Act. An investigating officer appointed by the Director General of FIA, “not below the rank of BPS-17 or equivalent”, will lead inquiries. If it is considered vital, a Joint Investigation Team (JIT) may be constituted, comprising officers from various intelligence agencies. Within 30 working days, the JIT is expected to complete its investigations and submit the report to a special court via a public prosecutor. The Act also addresses the admissibility of evidence “collected during the course of inquiry or investigation, including electronic devices, data, information, documents or such related material which facilitates the commission of any offence under this act, shall be admissible”.
Although the proposed law appears to have been shaped in response to the violent events that occurred on May 9 following Khan’s arrest in a corruption case, legal experts argue that it cannot be applied retrospectively to those involved in the attacks on military installations during that time.
The trade-off between boosting national security and upholding civil freedoms remains to be up for debate as the amendments are scrutinised. Noting the speed at which bills are being passed by the senate and national assembly has raised concern from the spectators and the parliamentarians themselves, who have called the process a global “joke” which disregards Parliament’s code of conduct. Passing bills and amending laws to favor one institution over another without proper deliberation is indeed a recipe for disaster which, in the end, will only adversely affect civilians.
