Cipher a hanging sword

The ML-1 Railway: A fulcrum for global trade 

Qamar Bashir

As the Press Minister at the Embassy of Pakistan in France, I was acutely aware of the sensitivity and significance of handling confidential ciphers. Almost every day, the Ambassador and trusted staff sent ciphers to the Ministry of Foreign Affairs, addressing matters of utmost confidentiality.

On numerous occasions, ciphers related to the Press Section were shared with me in person, and I ensured they were safely returned to maintain their confidential status.

At that time, I had no inkling that these routine embassy ciphers would become so perilous, putting the lives of the former Prime Minister and former Foreign Minister at grave risk, particularly following the amendment of the Official Secrets Act in 2023, which now imposes the death penalty for violations of the official secrets.

In general,  government correspondence is often classified into different levels of sensitivity, such as “Top Secret,” “Secret,” “Confidential,” or other designations. The highest levels of classification, such as “Top Secret,” are reserved for the most sensitive information. Access to classified information is typically granted on a “need-to-know” basis. This means that only individuals who require access to specific classified information for their official duties are granted that access.

 In the context of diplomatic communication, the term “cipher” is commonly used to refer to a coded or encrypted message. Diplomatic cyphers are employed to protect sensitive or confidential information from unauthorized access or interception during transmission. These codes are usually complex and may involve various cryptographic techniques to ensure security. Diplomatic ciphers are essential for maintaining the confidentiality of diplomatic correspondence. They are employed when discussing matters of national security, sensitive negotiations, confidential information, or any communication that needs to be shielded from prying eyes.

Though, typically the heads of the state or government are authorized to declassify the cipher information but they can do so after following an elaborate procedure which may involve, seeking formal recommendations and views from the concerned ministries, the agencies, departments or institutions of national security and safety and other relevant departments before declaring any cipher subject matter as declassified. Even when the head of state and government take such decision he is required remove any sensitive parts of the cipher which can jeopardize national security or could potential harm the relationship with another friendly or important country,

If the head of state or government discloses classified or cipher information in a public meeting without following the established protocol and proper declassification procedures, it can have serious legal, political, and national security implications. It can potentially harm national security by revealing sensitive intelligence, military operations, or diplomatic negotiations. It  can lead to political backlash, undermining the leader’s credibility and reputation. Opposition parties, lawmakers, and the public may demand accountability and investigations.

In some cases, a head of state or government who engages in such behavior may face calls for resignation or impeachment, the severity of the response depends on the nature of the disclosed information and the political climate, erode trust within the government and among intelligence and security agencies, career professionals may lose confidence in the leader’s ability to protect sensitive information, can strain diplomatic relations with other countries, potentially leading to diplomatic crises.

The consequences of such actions can be significant; however, the specific outcome may depend on the legal and political systems in place in a given country and the extent of the breach. Legal processes, investigations, and, if necessary, legal action can follow such incidents to ensure accountability.

According to one legal opinion, the Prime Minister or Finance Minister of Pakistan were not authorized to disclose the cipher to the public as  the Official Secrets Act 2023 clearly states that any classified information, including diplomatic correspondence, cannot be disclosed to the public without the prior approval of the appropriate authorities. It is a serious crime, and the consequences can be punished with imprisonment for up to 14 years, or with the death sentence in certain cases.

The next important Question is,  who is the proper authority for seeking permission to disclose the cipher matter to the public?. In the case of the Prime Minister or Foreign Minister, the proper authority for seeking permission to disclose classified information, including cipher matter, to the public is the National Security Council (NSC), a high-level body that is responsible for advising the Prime Minister on matters of national security.

The NSC meets regularly to discuss matters of national security and to make recommendations to the Prime Minister. If the Prime Minister or Foreign Minister wishes to disclose classified information to the public, they must first seek the approval of the NSC. The NSC when making the decision will consider the factors such as the sensitivity of the information, the potential impact on national security and the public interest.

If the NSC approves the disclosure of the information, the Prime Minister or Foreign Minister will then need to obtain the approval of the Cabinet. The Cabinet is the highest decision-making body in the government, and it is responsible for approving all major decisions.

Once the Cabinet has approved the disclosure of the information, the Prime Minister or Foreign Minister can then make the information public. If official procedure is not followed, the provision of the amended Official Secret Act 2023 can be evoked.

The original section of the Act, Section 9, states that anyone who discloses classified information without authorization can be punished with imprisonment for up to 14 years. The amended section adds a new subsection, Subsection (3), which states that anyone who discloses classified information with the intent to injure the interests of Pakistan or to benefit a foreign power can be punished with death.

The amended section also expands the definition of classified information to include “any secret official code or password.” This means that anyone who discloses a secret official code or password without authorization can now be punished with death. This is a significant increase in the severity of the punishment for this offense.

The amended section of the Official Secrets Act has not yet been tested in court. It is possible that the courts will interpret the amended section in a way that limits its scope.

However, it is also possible that the courts will uphold the amended section in its entirety, which would mean that anyone who is found guilty of disclosing classified information with intent to injure the interests of Pakistan or to benefit a foreign power could be sentenced to death.

In many countries, the heads of the state or government are immune from prosecution during their time in office. Therefore it is exceedingly rare for heads of state or government to be punished for disclosing the content of diplomatic ciphers to the general public. 

Disclosure of diplomatic ciphers would typically be an action taken while in office and is often a matter of national security and foreign relations, subject to legal and political processes that differ from those applied to ordinary citizens therefore,  the legal actions related to disclosures of classified information are generally directed at lower-ranking officials or employees.

For example, Daniel Ellsberg, a former military analyst, leaked the “Pentagon Papers” to The New York Times in 1971. The Pentagon Papers were a classified Department of Defense study of U.S. political-military involvement in Vietnam from 1945 to 1967. Ellsberg faced charges under the Espionage Act but was not ultimately convicted. Chelsea Manning, a former U.S. Army intelligence analyst, leaked classified documents to WikiLeaks in 2010, including diplomatic cables and military information. Manning was convicted of multiple charges under the Espionage Act in 2013. Edward Snowden, a former National Security Agency (NSA) contractor, leaked classified information in 2013, revealing extensive surveillance programs. Snowden faced charges under the Espionage Act but was granted asylum in Russia.

It is relatively uncommon for former heads of state or government to be sued and punished for disclosing diplomatic ciphers after leaving office. Diplomatic secrets are typically subject to the authority and discretion of the sitting government or head of state. Once out of office, former leaders often enjoy certain legal protections or immunity from prosecution for actions taken during their time in power. However, the extent of legal protection varies by country, and the political circumstances surrounding the disclosure play a significant role. Laws and legal systems differ, so it is possible, albeit rare, for legal action to be taken against former leaders.

The former Prime Minister of Pakistan does not have immunity from charges related to the disclosure of cipher content under the Official Secrets Act 2023. This law does not provide any special protection for former government officials, including former Prime Ministers. Parliamentary privilege, which shields members of Parliament from prosecution for statements made within Parliament, does not extend to disclosures made outside of parliamentary proceedings, such as the release of cipher information.

Consequently, the former Prime Minister is subject to the same legal provisions as any other Pakistani citizen and could face prosecution for revealing classified information, carrying penalties of up to 14 years in prison or even the death penalty.

While the former Prime Minister argues that his actions were justified in the public interest and that his previous immunity protects him, these arguments await judicial determination. It’s essential to emphasize that the former Prime Minister is considered innocent until proven guilty and retains the right to a fair trial and the opportunity to mount a legal defense against the charges.

Qamar Bashir

Former Press Secretary to the President

Former Press Minister to the Embassy of Pakistan to France

Former MD, SRBC