DR Samuel Johnson wondered “whether a secret has not some subtle volatility by which it escapes imperceptibly, at the smallest vent, or some power of fermentation, by which it expands itself, so as to burst the heart that will not give it away.”

The conflict, ever present in individuals, between the need to keep secrets and the desire to reveal them, acquires a new dimension in democratic governance.

There is a legitimate public interest in the protection of sensitive matters from disclosure. There is also a clear public interest in transparency in democratic governance.

The people have a right to know, which is enforceable by courts since it is an inseparable aspect of the fundamental right to freedom of speech. The Supreme Court of India has ordered publication of reports of inquiries more than once.

Astonishingly in the one country that prides itself on the unfettered right to freedom of speech, the United States, there has been a veritable witch-hunt of persons suspected to have leaked secret documents, the much hailed First Amendment to the US Constitution notwithstanding. A cascade of disclosures has provoked a war on leaks.

There was a time when as senator, Barack Obama asserted that “such acts of courage and patriotism should be encouraged rather than stifled”. As president, he, his Justice Department led by Attorney General Eric H. Holder Jr., and the director of National Intelligence, Denis C. Blair, have sought aggressively to punish anyone they deem to be guilty of leaking official secrets.

Some notable victims are Julian Assange of WikiLeaks; Bradley E. Manning, a US army private imprisoned since May 2010 (although cleared of the charge of “aiding the enemy”, he was convicted recently by a military tribunal of multiple counts under the Espionage Act for leaking secret documents to WikiLeaks); Stephen Jin-Woo Kim, a US State Department security adviser, for giving classified information about North Korea to a reporter; a State Department adviser and retired general, James E. Cartwright, who was vice-chairman of the Joint Chiefs of Staff until August 2011; and of course, Edward J. Snowden, former NSA contractor recently granted a year’s asylum in Russia.

But can any fair-minded person consider any of these persons a spy rather than a whistleblower? All of them operated under a certain clime in which the United States administration rode roughshod over the citizen’s right to privacy.

The NSA monitored traffic patterns from American telephones; the Prism surveillance programme accessed troves of customer data from internet firms like Microsoft and Apple; the FBI used drones to tail suspects within the US. Even the media’s right to protection of its sources of information has come under challenge.

Some years ago The New York Times pointed out in an editorial entitled ‘Freedom of the Press’, that “Without the ability of reporters and news

organisations to protect confidential sources, many important reports about illegal, incompetent or embarrassing behaviour that the government is determined to conceal would never see the light of day. In recent years, the abuse of prisoners at Abu Ghraib, the secret CIA prisons in Eastern Europe for terrorists and warrantless wiretapping all came to light through the unauthorised disclosure of classified information.”

Governments use double standards. They leak information to target political opponents. The cabinet secretary aptly remarked to Jim Hacker in Yes Minister, that the ship of state is the only ship which leaks from the top.

Disclosures in Bob Woodward’s book Obama’s Wars are clearly based on information leaked by senior officials. Stephen Kim’s lawyer had pointed out that the classified information about North Korea that Kim is alleged to have passed on to Fox News pales into insignificance besides that given in Woodward’s book.

Disclosures unsettle insecure regimes and drive them in desperation to extreme measures — executive or legislative.

Britain enacted the first Official Secrets Act in 1889 after a clerk in the Foreign Office had passed to the Globe details of a secret treaty between Britain and Russia. He had sensibly committed them to memory and thus averted the charge of removing a state document.

The subcontinent has a fine record of disclosures in the public interest. A Calcutta daily published in October 1838 the text of the foreign secretary Sir Mortimer Durand’s opinion against the annexation of Gilgit. It cheekily added that the viceroy would find the original in the Foreign Office.

We now have the protection of the fundamental right to freedom of speech. All laws must conform to the constitution. No leak can be punished if it was done in the public interest and in a clime of persistent official deception.

Both Pakistan and India inherited the Official Secrets Act, 1923 based on the British Act of 1911. The act must be tested on the anvil of fundamental rights.

Official deception can make disclosure of an official document an act “in the interests of the state”, albeit not in those of “the government”.

In the case of Clive Ponting, a senior official of the defence ministry, the trial judge M.C. Cowan 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”. The jury rejected the interpretation and brought a verdict of “not guilty”.

In the House of Lords, Lord Denning welcomed the verdict and criticised the judge’s interpretation. In his view, the words mean “the interests of the country or realm”. Public interest is a good defence to a charge under the Official Secrets Act.

The writer is an author and a lawyer.


Published in The Dawn, August 4th, 2013.