Cypher Case and Official Secrets Act, 1923


Hafiz Ahsaan Ahmad Khokhar

The British Government first adopted the Official Secrets Act in 1923 in the Sub-continent in order to protect sensitive information and uphold the credibility of official proceedings. Its main goal was to stop unauthorized exposure of private information that would jeopardize national security. Pakistan implemented the Official Secret Act of 1923 following its independence in 1947. The Act presently also handles espionage and other conduct that can endanger national security and casts upon a legal duty and obligation on all govt/public servants and the office holders of public offices in Pakistan to keep such material, communication and information confidential while retaining their positions and not to provide any communication and information defined under the law. Without exception, this Act is applicable to every member of the Pakistani government, every employee of the public sector, and everyone who holds public office defined in the Constitution and takes oath as well under the Constitution of Pakistan.
There is no particular exemption or exclusion has been provided under the Official Secret Act 1923 since it was adopted by Pakistan as the present legislation has been applied to everyone with no exception. Furthermore, no head of state or Chief executive of the country has been given any choice or discretion under this law that would allow him to control or share what according to him a classified material, information can be published or shared to unauthorized persons as held by him or brought within his knowledge because of his position on the name of any excuse until the law would allow him specifically.
The Official Secrets Act or the laws similar to it are currently in effect in a number of Commonwealth nations, including the United Kingdom, India, Australia, Canada, Sri Lanka, Bangladesh, in addition to the above, the Official Secrets laws are applied in Ireland, Kenya, Nigeria, Egypt, Saudi Arabia, Israel, Iran, China, Russia, Japan, South Korea, Turkey, Brazil, Argentina, France, Germany, Italy, Spain, Mexico, Indonesia, Philippines, Thailand, Vietnam, Sweden, Norway, Denmark, Belgium and the Netherlands. According to the provisions and intent of the Official Secrets Act, breaking the obligation provided by law to a govt/ public servant and the holder of the public office is illegal and has severe legal consequences. This Act also addresses improper communication, information and unauthorized disclosure, and serves as deterrence against espionage and other activities that can threaten the interests of the country by outlining the legal repercussions for violations.
The Official Secrets Act requires strict confidentiality from those who hold positions or work in occupations that give them access to official secrets and forbids them from disclosing such information to unauthorized persons, including foreign governments or organizations. It also ensures that those who are given access to official secrets uphold their obligation to secrecy. A criminal offence is committed when this obligation is violated. The Act gives the government the authority to look into potential violations of the Official Secrets Act, search locations, and take evidence. Additionally, it establishes the legal guidelines for accusing and punishing those who are found guilty of breaking the terms of the Act. Fines and imprisonment are two possible punishments. The legal repercussions in India are life in prison. While the UK imposes punishments of up to 14 years, Australia enforces prison terms ranging from 7 to 25 years. In Canada, 14 years in prison is the maximum penalty. In the US, the maximum sentence is 10 years in prison. Singapore imposes a maximum punishment of 7 years, compared to a maximum term of 10 years in Japan. Russia’s maximum sentence is 20 years, but China’s regulations provide for the death penalty or life in prison. In South Africa, a prison term of 25 years is the maximum.
There is no legal doubt that a nation’s security is protected and sensitive information is prevented from getting into the wrong hands due in large measure to the Official Secrets Act. Preventing espionage, unauthorized exposure of confidential material, and other actions that can jeopardize national security are all included in this. The government’s interests, including its diplomatic, military, and intelligence operations, are to be safeguarded by this statute. By safeguarding confidential diplomatic communications, governments can conduct sensitive negotiations without worrying that their conversations will be disclosed. These laws also frequently contribute to the preservation of diplomatic relations with other nations.
As per law, all government/public servants and public office holders are legally required and bound by Sections 5 and 9 of the Official Secrets Act 1923 to keep such material, communication and information all time confidential while retaining their positions and not to provide any communication and information defined under the law to unauthorized persons. According to section 5 If any person willfully communicates the code or password, sketch, plan, model, article, note, document or information to any person other than a person to whom he is not authorized to communicate it or to use the information in any other manner prejudicial to the safety of the State or to fail to take reasonable care of and conducts himself as to endanger the safety of the communication, note, document, secret official code or password or information is guilty of an offence under this section and shall be punishable with imprisonment for a term of two years to fourteen years.
This is the first time in the legal and political history of Pakistan, that a case has been registered against a former PM and Chairman of PTI and his former foreign minister on violations of sections 5 and 9 of the Official Secrets Act, 1923. Background of the present Cypher case is, that during a public rally on March 27, 2022, former prime minister and PTI Chairman displayed a piece of paper from his pocket received through a diplomatic cable that he claimed was proof of an “international conspiracy” to overthrow his government before facing a vote of no-confidence that resulted in his removal. After, the removal of his govt, the Federal Investigation Agency (FIA) started investigating the matter last year after receiving a complaint from the then-federal interior Secretary. In August 2023 after the inquiry, a case was initiated against the then-prime minister and his close associates for violating sections 5 and 9 Official Secrets Act of 1923 and section 34 of PPC was added on misuse of a confidential and secret document/cable received from a Pakistani diplomat based in Washington with reference to his meeting held on 07-03-2023 with an American diplomat. The Transcripts of the speeches of former PM and former federal minister on foreign affairs Mr Qureshi made at the public gathering on March 27, 2022, have been made as a part of prosecution Challan. The FIA has also provided the court with a list of 28 witnesses, with the statements of 27 of them attached to the challan. The Principal Secretary Azam Khan of former PM has been named as one of the witnesses in the case and his confessional testimony under Sections 161 and 164 of the Code of Criminal Procedure is attached with the challan including the statements of former foreign Secretaries Asad Majeed, Sohail Mehmood as well as Additional Foreign Secretary Faisal Niaz Timrizi.
There is no legal variance that the trial court and the Islamabad High Court are the two courts that will ultimately decide the legal fate of the present Cipher case, but given the confessions made by certain government officials and especially by the former Principle Secretary in accordance with sections 161, 164 read with section 364 of the Criminal Procedure Code, 1898 and the former prime minister’s and former foreign minister appearance in a public meeting on 27th March 2022 which was widely reported in print and electronic media regarding the use and unauthorized disclosure of a classified diplomatic cable as reported by the prosecution and attached to the prosecution’s Challan submitted in trial court, would present significant legal challenges for the defence side. Finally, the outcome of the trial will depend on how the prosecution presents its evidence and how the defence argues that there hasn’t been a violation of the rules of sections 5 and 9 of the Official Secrets Act and section 34 of the PPC before the trial court.
The writer is a practicing lawyer at Supreme Court and has served as Chairman, Federal Excise & Sales Tax Appellate Tribunal and Senior Advisor Federal Ombudsman. He can be reached at: