Official
Secrets Act Cannot be Applied to Benazir
Dr
Zafar Altaf
BENAZIR BHUTTO is under fire in Pakistani Parliament for her alleged
violation of so called Official Secrets Act (OSA). All sitting
on the Treasury Benches want to hang the lady for the so called
"sensitive" disclosure that how President Musharraf
came with an idea to capture Srinagar, much before Kargil, and
she as PM had rejected the plan.
All
the treasury members are unanimous in saying that she be tried
under the OSA. This actually means what Benazir Bhutto had told
an Indian weekly about the Kargil operation was true. They all
want to keep the people in the dark about what our top military
leadership had been doing behind closed doors.
But
BB's interview also shows one encouraging sign that in Pakistan
the civilian and political governments never liked or promoted
the idea of war with India, usually proposed from time to time
by our military leadership. Both
BB and Nawaz Sharif were against such adventures. This clearly
shows the maturity and wisdom our political class enjoys over
the military leaders.
Coming
back to the issue of OSA. It was created in 1923 in a different
context and was not a legislative act but an excuse to show to
the world that the British are a very reasonable nation.
Then
the time was also ripe for movements against the British in Punjab
where ‘Pagri Sambhal Jatta’ [Jats (a caste)take care
of your headgear-meaning worry about your honor] movement had
already started. That today's Punjab has become a 'Jattistan'
is a different matter.
The
First World War had made the OSA look reasonable and spying was
very much in order in those days. Its utility, however, was at
its peak during the Cold War but once it was over little substance
is left in it.
In our context, has any one who has written and talked about the
OSA read the Act itself? I bought a copy from the PLD publishers
in Lahore. It was evident that even the new copies were so oxygenated
that no one had bought one in a long time. The OSA booklet was
actually a mild yellow due to the long sojourn on the shelves.
Its
operative section after the usual definitions, talks of penalties
for spying [supporting my argument that the occasions and the
context of the cold war was such].
Section
4 deals with communication with foreign agents. The person held
guilty ‘obtains or attempts to obtain information’
that is prejudicial to the safety of the country. The safety factor
is in the future not in the past although if one were to do any
nitpicking one can stretch the subject matter to any lengths.
Pakistanis' imagination about the likely opponents is much more
than hate. They would like to push these opponents to their graves.
Sub-section
C of section 4(2) needs to be printed in full for the most likely
area for judicial mischief may lie here. The sub-section states:
‘Any address whether within or without Pakistan in respect
of which it appears that there are reasonable grounds for suspecting
it of being an address used for the receipt of communications
intended for a foreign agent, any address at which a foreign agent,
or any address at which a foreign agent resides, or to which he
resorts for the purpose of giving or receiving communications,
or at which he carries on any business may be presumed to be the
address of a foreign agent, and communications addressed to such
an address to be communications with a foreign agent’.
The
preamble to OSA had been omitted by an amendment made by the Federal
Laws ordinance
XXVII of 1981. Why was it omitted is a mystery. The preamble always
lays down the philosophy of what the law is intended for.
What
did BB say that so irritated the National Assembly, the guardian
of free speech. It was apparently something that every one in
Pakistan knew about. The wrangling over the Kargil issue had not
only been voiced by Pakistanis but also Indians.
One
can discard the Indians but what do you do about those who traveled
with Nawaz Sharif and his Army Chief General Pervez Musharraf
and had first hand information about what transpired between them
in a helicopter while flying to the Northern Areas? The press
had been conjecturing on the issues over Kargil. I was in Karachi
and there a dead body had arrived. Unused to death on the battlefield,
the Karachiites were unable to cope with the death of a young
man, who was father to some one, a son to some one, a husband
to some one, a brother to some one. The scene was terrifying.
Cut in the prime of his life. The will of God had been master
minded by the will of the planners of that operation.
The
same goes for the Indian side. They too lost their children. They
belonged to a common comity. I, being a man of peace, wondered
as to what and how would a child grow up without the love of the
father? But I am getting emotional and that is not the purpose
of this exercise.
Is
BB guilty of the crime given in the ridiculous sections of the
OSA? The statements are common knowledge and the communication
cannot be taken as one. What import is added to it is impossible
to decipher because the investigation agencies can make a mole
out of a mountain, anything out of nothing. Remember Imam Din,
the famous Jalal Pur Jattan poet, who was arrested for carrying
a weapon. When as Deputy Secretary I appeared before the court
and stated there was nothing on record against him, his habeas
corpus petition was successful. On release I asked him as to what
had happened. His reply was hilarious as he recited a couplet
in Punjabi, which by the way is extremely rich in expletives.
Mam Din was philosophical about it all: ‘Baoo Ji Agar o
Mere Kahr To Tank Kad Lenday Tan Mey Ki Kar Lainda’ [If
they had recovered a military tank from my house what could I
have done].
The
statement of Benazir Bhutto does not attract the attention of
the law, as it exists. Every thing is done in a context. Why the
PPP patriots were making noises against BB is understandable.
They must make sure that BB does not come back for it would be
curtains for them. As for puppies that have entered the political
fold we know that puppies yap a lot. They are also unable to bite.
Now let us see the treason case built by the Opposition against
General Musharraf. The section that the Opposition cited from
the Constitution is Article 6. It states:
1. Any person who abrogates or attempts or conspires to abrogate,
subverts or attempts to subvert the constitution, by use of force,
or by other unconstitutional means, shall be guilty of high treason.
2.
Any person aiding or abetting the acts mentioned in Clause 1 shall
likewise be guilty of high treason.
3. Majlis-e-Shura [Parliament] shall by law provide for punishment
of persons found guilty of high treason.
The
facts need to be ascertained and made common ground with Article
6 of the constitution. This constitution is a consensus document.
But curiously enough not only this Article but also the oath of
office of the top echelon is pretty difficult to maintain. It
is very difficult to say that the OSA was violated because the
events and the statements can be nebulous. It is rather easy to
say how Article 6 is to be used for the purpose that it was intended.
The preamble to the constitution is intact. A preamble lays down
the guiding principles of what follows. It provides for interpretation
when the objectives become hazy and complex. It is difficult to
list all that the preamble requires us to do. It demands equity,
human rights, equality of status, of opportunity before the law,
social economic and political justice, and freedom of thought,
expression, belief, faith, worship and association, subject to
law and public morality. There are nine 'whereins' in the preamble
and none have been followed.
There
are two guiding 'whereas' and there is one inspiration, one dedicated,
and cognizant of the sacrifices made before God and …then
we break all the connections that we so piously and painstakingly
develop through a consensus.
The law aside, the facts in treason cases can be difficult to
assert but evidence is possible and a necessary element so that
no one should be punished by Draconian laws. Sovereignty in Pakistan
belongs to Allah and yet we have made a mockery of this trust
that was reposed in us by the Almighty. And I can go on.
The fact is that the power of the bullet has been responsible
over the power of reason and the power of the pen. We in Pakistan
like to flog the USA for every ill. But we have not done anything
to build on the confidence of the new state.
Shame on our scholarship and us. So what and who are the one’s
that are guilty of high treason. Who are the deep thinkers in
the country? Name one. The matter of the oath is different. Every
person who has taken this oath has broken it and in fact if one
were to ask them immediately after the oath what it was all about
they would not be able to answer the question.
Two
assertions must go on together. The tyranny of the majority in
democracy is not a mockery of the majority. It has to be rational
and reasonable. Partisanship can go only that far. Has any one
in the opposition been consulted on national or international
issues?
There
is a brand of people in Pakistan who have ganged up against decency
and democracy. Threats and threats and threats prevail. Those
that seek legalities are themselves illegal. The illegal are looking
after the irregular. The doubly black pot is calling the kettle
black.
We
must keep in mind the achievements made during patches of democratic
governments and see how much was achieved in those short periods
- nuclear facility, constitution, anything that you want to touch
under the sun.
The
writer is a former Federal Secretary, Government of Pakistan
