Assistance from law is sought not only to protect the national security interests of the country but at the same time, a balance needs to be stricken between the two subjects. Three landmark decisions namely the 21^st Constitutional amendment case, Information Technology case and the Cypher case are subjected to discourse in the following passages to see how the courts have dealt with the issues at hand.

The beginning of 2024 reflected upon two prime threats to the prosperity of Pakistan, number one the threat to national security by new terrorist insurges and number two the threats against the economy. Noticeably terrorism is the main culprit here. CPEC( under the belt and road initiative) and other Chinese investments are nothing new for the people of Pakistan. Hence good diplomatic relations are pivotal for the sustenance of Pakistan, as seen by the new government put in place post the February 8^th general elections. These relations were tarnished by the March 2024 terrorist attack on the Chinese personal working in the China funded Dasu hydropower project. This brings us to realize how the NSP 2022 alone is insufficient to highlight the mechanisms for ensuring the national security of Pakistan.

21^st Constitutional Amendment and its Implications

Time and again the executive, legislative and judicial machinery of Pakistan has been relying on legal amendments to balance out the national security against the fundamental rights enshrined in the constitution of Pakistan.

This amendment to the article 175 of the Constitution of Pakistan came after the 2014 Peshawar School Massacre whereby establishing speedy military courts to try civilians for terrorist offences. These courts were seen by the military and others as precursors of quick dispense of justice against terrorists who had created shock-waves of barbarity amongst the entire population. However this amendment came with a great upheaval in the society. Fifteen petitions challenging this amendment came forward. These highlighted certain human right abuses stemming from the civilian trials in these courts, which included a lack of transparency and coerced confessions. These were a clear violation of the right to fair trial, Article 10A of the Constitution. However the Supreme Court in District Bar Association Rawalpindi v The Federation of Pakistan decided with an 11:6 majority in favour of the 21^st amendment. This case highlights how the apex court prioritized national security interests over the fundamental right of fair trial.

A similar inspiration can be drawn from the 2001 House of Lords decision in Secretary of State v Rehman where the decision to deport a Pakistan born man on charges of terrorism was upheld. However the balance between law and national security seems to fluctuate as in 2023 the apex court went back on its own decision in the District Bar association Rawalpindi case where the trial of civilians in military courts was held ultra vires to the constitution of Pakistan.

Cellular Services and National Security; where to draw the line?

Mobile phone services help individuals exercise several of their constitutional rights like the freedom of speech, freedom of assembly, freedom of trade/business and the right to information amongst others (article 8 to 28).Its been more than a decade where these services have been occasionally blocked by the authorities on the ground of terrorism. Evidently, this is a violation of the fundamental human rights of the citizens. Not just this, it also hinders access to emergency services, banking transactions and access to education. This was a major inconvenience for the people of Pakistan at the times of the Covid-19 pandemic. The major current threat to the national security of Pakistan, as discussed above, relies on cellular services. Hence, this subject causes a clash between the national security and the fundamental rights for the citizens of this country. It is now to be discussed where a line is to be drawn at the times of such a clash.

Information Technology v CM Pak Ltd suggests a tilt towards the prioritization of national security. Applying s.54 of the Pakistan Telecommunication(Re-organization) Act 1996, the IHC held that the federal government was not authorized to suspend cellular services on, “…apprehensions relating to public safety…”. The Supreme Court of Pakistan overruled this decision with remarks from Justice Umar Bandial that s.(8)(2)(c) and not s.54 of the said Act applied to this case.

The Cypher Case- A threat to the National Security

Pakistan’s former minister and senior PTI leader Shah Mehmood Qureshi were jailed for 10 years in the cypher case. As published by the US news agency, ‘The Intercept’ the cypher was based on a conversation between the former Pakistani ambassador to the US, Asad Majeed Khan and Donald Lu, assistant secretary of state for the US Bureau of South and Central Asian Affairs. This conversation took place around the time when Russia invaded Ukraine and the US had its reservations over Pakistan’s neutral stance regarding the matter.

“I think if a no-confidence vote against the prime minister succeeds, all will be forgiven in Washington.” Mr Lu had told the former ambassador who later sent a cypher to Islamabad-The Intercept. Following this in March 2022, Khan brought forward the actual letter in a public rally without opening the-what he claimed to be the cypher.

Imran alleged that the cypher suggested towards a plot to overthrow his government.The Intercept published that this ouster was plotted by the US administration and Imran Khan’s political opponents. Although Mr Khan himself later toned down his allegations.

Legal Proceedings against Khan following the Cypher

In October 2023 special court Judge Abdul Hasnat Zulqarnain stated “Imran illegally retained and wrongly communicated the cypher.” PTI’s

Spokesman called these ‘arrests  in a closed door trial’, ‘under the colonial era Official Secrets Act’. This was a 1923 Act by the British Raj to maintain security of the then British India. Accordingly classified information was not to be disclosed to public and those charged  with access to such documents were to maintain confidentiality. This Act still stands in power in Pakistan with few amendments following 2023.

In November 2023 IHC declared the judicial proceedings against Khan illegal and ordered the trial to start afresh. Following this the special court began the trial again indicting the two for a second time on December the 13^th,2023.On the 22^nd of the same month, Supreme Court approved Khan and Qureshi’s post-arrest bail in the cypher case  against surety bonds. The 3 member bench consisting of Justice Tariq Masood, Justice Athar Minallah and Justice Syed Mansoor Ali Shah declared that Imran Khan did not disclose any secret official code to the public.

Law Versus National Security; the probability of a balanced approach

All of the discourse above brings us towards this question, is a balance between the two possible? And if yes, then how?

To answer this we’ll refer to the proceedings of the cypher case. Firstly this case hints upon a possibility of balance between law and the national security interests of Pakistan. The initial sentencing of Mr Khan and Mr Qureshi took place on accounts of him inciting terror amongst the general public as s.(6)(b) of the Anti-terrorism Act 1997 defines terrorism as a “threat” where this “ threat is designed to create a sense of fear or insecurity in society.” Also, Imran Khan was directly tried under the Official Secrets Act. All these arguments behind his sentencing stood firm on the ground of national security.

Law is the custodian of the fundamental rights of  citizens. These rights as already mentioned, are enshrined in the Constitution of Pakistan. Democracy is the essence of this constitution. Khan in his defense had later commented as reported by Dawn News, that what he did was to uphold democracy and if upholding democracy is terrorism then he is a terrorist. Secondly, Khan’s party had also highlighted that he was indicted under a closed-door trial. If this is the case then it may suggest a deviation from article 10A of the Constitution. These arguments from both sides do suggest that a balance between the fundamental rights as protected by the law and national interests is possible. And the Supreme Court’s December 2023 decision shows this probability of balance.

There’s no perfect formula to suggest when in contradiction, which amongst the two shall prevail. However one thing can be stated at this stage which is, the answer to where the balance shall shift depends upon the facts of a particular case. Considering it affects the lives of millions and billions, national security is to be prioritized. But where violating a law against national interests leads to grave consequences like leading to a ripple effect of basic human right violations, law will take the lead in such a scenario.