Yahya Farid Khwaja
The Author is a Lawyer based in Islamabad
There is no doubt that in terrorism cases and other highly sensitive proceedings, protecting judges, witnesses, prosecutors, lawyers, police officers and investigators is a serious responsibility of the State. Pakistan has seen cases where fear, intimidation and security threats have weakened prosecutions and, at times, contributed to the acquittal of dangerous criminals and terrorists. In such circumstances, the State has a major responsibility to protect. But protection cannot come at the cost of justice itself.
The amendments proposed by the Punjab Assembly to the Anti-Terrorism Act, 1997, as applicable in Punjab, appear to create an extraordinary regime of secrecy. Instead of narrowly protecting those who genuinely face danger, the framework risks placing an entire criminal proceeding behind a wall of confidentiality. This may create more legal problems than it solves, while weakening transparency, due process and the rule of law.
Through the newly inserted Section 21AAA, a designated authority, being a government official not below Grade 20, may declare a case or class of cases a “special security case”. The officer may determine that extraordinary protection is required for judges, prosecutors, police officers, witnesses, defence counsel and others connected with the trial. This places considerable discretion in the hands of an executive officer.
Although consultation with the Chief Justice of the Lahore High Court is required for declaring a case to be of such a nature, the amendment does not clearly explain the legal effect of that consultation. Is the Chief Justice’s opinion binding? What happens if the designated officer and the Chief Justice disagree? Can the officer proceed despite judicial reservations? These questions remain unanswered.
More unusually, even the identity and credentials of the officer exercising these powers may remain confidential, with such information communicated only to the Chief Justice. This creates an extraordinary paradox: the authority deciding secrecy is itself secret. It gives the appearance of hidden justice administered by a hidden hand.
The designated officer may also determine who will prosecute a special security case. At the same time, the identities of judges, witnesses and other protected participants may be concealed and replaced, where necessary, with pseudonyms or alternative identities. This may give rise to concerns of personal bias and undermine confidence in the independence and impartiality of the prosecution.
The secrecy extends further. The proceedings, record and evidence may remain confidential and inaccessible to the public. Even the location of the trial and information concerning its conduct may be withheld, except from persons specifically authorised by the designated Authority. Proceedings may also be conducted virtually, including from within a prison.
Taken together, these measures represent a serious departure from the ordinary principle of open justice.This raises an obvious constitutional question: how is fairness and due process to be ensured in a proceeding conducted almost entirely behind a veil of secrecy?
Article 10-A of the Constitution guarantees the right to a fair trial and due process of law. These protections ordinarily include notice of the allegations, a meaningful opportunity to be heard, equality, access to the evidence relied upon, and adjudication by an independent and impartial court. Excessive secrecy can directly interfere with these guarantees.
The amendment is also unclear about the limits of concealment. Is secrecy intended only to protect participants from the outside world, or may the participants themselves remain concealed from one another? Would the prosecutor know the identity of the defence counsel? Would both sides know the identity of the judge? Would an accused know who the witnesses against him are and be able to effectively challenge their testimony? These are not technical questions. They go to the heart of what constitutes a fair criminal trial.
There is also insufficient clarity regarding the designated officer. The amendment does not meaningfully define the officer’s qualifications, institutional background or limits of authority. Could the officer be a civil servant, police official, law officer or even someone from an intelligence agency? That uncertainty is troubling because the officer’s decisions may directly affect the secrecy, prosecution and overall administration of a legal system of the largest province of Pakistan.
The arrangement also creates an uncomfortable overlap between executive and judicial authority. A Grade 20 executive officer may consult with the Chief Justice while exercising powers that affect proceedings before Anti-Terrorism Courts. Yet the amendment does not clearly explain how disagreements will be resolved, whether the officer’s decisions are subject to judicial control, or how the independence of the trial court will be protected.
Protecting participants in highly sensitive proceedings does not require blanket concealment of everyone involved. Protection should depend on necessity and actual risk. A particular witness may require anonymity. A prosecutor may need special security. In exceptional circumstances, a judge may require additional safeguards. But the need to protect one witness does not automatically justify hiding the identities of investigating officers, entire police teams, court officials and every other person connected with the case.
Such blanket secrecy risks creating precisely the conditions in which abuse of power can flourish. It reduces transparency, weakens judicial oversight, blurs institutional boundaries and makes police or investigative misconduct far more difficult to detect. It may also allow executive authorities to overstep their lawful jurisdiction under the cover of confidentiality.
The answer lies in targeted protection, not total concealment. A fair justice system must protect those genuinely at risk without making the entire process invisible. Security should strengthen the administration of justice, not place it beyond scrutiny.