Lengthening shadows
Legal eye

We will never know for certain whether or not Maj Gen Nadeem Ijaz, the former head of Military Intelligence (MI), ordered that the crime scene be hosed down following Benazir Bhutto’s assassination. The three-member fact-finding committee comprising senior civil and military officers has given him a clean chit of health. This was not unexpected. It would have been extraordinary if a committee established with the one-point agenda of deciphering the role of a serving general had actually indicted him. What, after all, was the need of forming this committee, other than to exclude the name of a serving khaki from an on-going investigation on emergency basis when there already is a Joint Investigation Committee in place to probe all aspects of the assassination?

Maj Gen Ijaz might not have ordered the hosing down of the crime scene. But few doubt that the DG MI–or the DG ISI, for that matter–had the power and ability (without any legal authority, at that) to influence the conduct and decisions of relevant law-enforcement agencies in the immediate aftermath of the assassination. Whether or not the incumbents at the time abused their position and influence, the fact that the DG ISI and DG MI have such influence, in the first place, highlights the problem of opacity and excessive influence that afflicts our intelligence infrastructure, coupled with their unaccountability. The scope and mandate of intelligence agencies in Pakistan is not defined by legislation. They are not subject to effective executive or parliamentary supervision, and their unbridled authority is prone to abuse. This is the systemic problem that needs to be addressed.

The UN Inquiry Commission Report in the Benazir Bhutto assassination case notes that, “no aspect of the Commission’s inquiry was untouched by credible assertions of politicised and clandestine action by the intelligence services–the ISI, the MI and the IB. On virtually every issue the Commission addressed, intelligence agencies played a pervasive role.” It concludes that “this pervasive involvement of intelligence agencies in diverse spheres, which is an open secret, has undermined the rule of law, distorted civil-military relations and weakened some political and law-enforcement institutions. At the same time, it has contributed to widespread public distrust in those institutions and fed a generalised political culture that thrives on competing conspiracy theories.”

Do our intelligence agencies not flout rule of law and fundamental rights as a matter of practice? Articles 9 and 10 of the Constitution state that no person shall be deprived of life or liberty, except in accordance with law, and no person shall be arrested or detained without being produced before a magistrate within 24 hours of such arrest or detention. And yet, everyone knows that our spooks can pick citizens up and detain them in safe houses at will. The missing persons’ case documents the sorry tale of how constitutional guarantees against arbitrary arrest mean absolutely nothing.

Despite years of effort, the Supreme Court has not been successful in accounting for all the missing citizens. And what is more disconcerting is that even our apex court seems hesitant in addressing the larger problem of wanton disregard of constitutional rights by these agencies.

The issue of wiretapping is another manifestation of illegal intelligence-gathering. The Constitution states that the dignity and privacy of a citizen are inviolable. Yet, our intelligence agencies can arbitrarily tap into and record conversations of any citizen without authorisation. There is no law permitting the practice of wiretapping or subjecting it to any scrutiny–executive or judicial. As a consequence not only do our intelligence networks engage in illegal eavesdropping but also expend significant resources to gather information for political purposes that has no link with their job of facilitating law enforcement and strengthening national security.

For example, during the chief justice restoration case, the Musharraf regime filed information before the Supreme Court that established that even the telephones of apex judges were being wiretapped, and the court had to pass explicit instructions that the homes and offices of judges be debugged. This issue of gathering information through impermissible means isn’t simply academic. On the one hand, intelligence agencies generate information that is not generally admissible as evidence in trials and thus of limited utility in conviction of offenders and strengthening of our penal justice system. And, on the other, they gather personal information related to prominent politicians and officials, largely meant for blackmail, in order to influence institutional decisions as well as the political process.

Our current intelligence infrastructure and culture not only undermines rule of law and fundamental rights but also further tilts the civil-military imbalance in favour of the khakis. Intelligence officials informally admit that their agencies might have been used to promote political ends during the Musharraf regime. But they insist that, immediately upon taking over as army chief, Gen Kiyani not only instructed that the military, the ISI and the MI were to stay away from politics and the electoral process but also communicated to all concerned in clear terms that the elections were to be free and fair. And consequently, the elections of 2008 were as fair as any we have witnessed in our recent history.

Gen Kiyani certainly did the right thing in 2008. But the fact that he had the ability to facilitate free elections underscores the reality that an army chief–through his control of the ISI and MI–has the power to influence electoral outcomes. What if the general who replaces the incumbent is more adventurous and doesn’t believe that such hands-off policy is in consonance with his perception of national interest?

The point is not that the ISI and the MI are evil incarnate, but that these agencies are tools that are susceptible to abuse. Whether or not they are abused depends largely on the disposition of the army chief. And such reliance on the principled exercise of unguided personal discretion by one man is neither desirable nor sustainable.

The response to the problem of our flawed intelligence infrastructure cannot come from the executive. The ISI’s being subjected to the effective control of a civilian boss, as opposed to the army chief, will not make it any more accountable or less vulnerable to abuse. It is our legislature and our judicature that must step up and perform their due roles.

Parliament must introduce a legislative framework that defines the mandate of the intelligence agencies, identifies the limits of extraordinary powers that they are vested with (such as wire-tapping), specifies the processes they must follow to ensure that such power is not abused (such as prior approval by judicial officers), facilitates cooperation between intelligence agencies and civilian law-enforcement bodies, provides a mechanism for the civilian executive to give policy input, and for parliament to seek information and provide bipartisan oversight. And until that happens, the judiciary must not shirk its obligation to firmly clamp down on the excesses of the intelligence agencies.

In this regard, the apex court must no longer dither in adjudicating the Asghar Khan case. Lt Gen Asad Durrani, a former DG ISI, has stated in writing that the ISI distributed almost Rs140 million to create the Islami Jamhoori Ittehad (IJI) and influence political events and the outcome of elections in the early 1990s. This case highlights the administrative and financial autonomy enjoyed by the intelligence outfits, and their funds’ abuse, to engineer democratic processes and outcomes through coercion and financial corruption. The refusal of a highly proactive and independent Supreme Court to address such a mighty scandal of misappropriation of funds, corruption, and abuse of authority strengthens the cynical view that khakis remain untouchable and rule of law is for civilian consumption only.

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu

Source: The News, 8 May 2010

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