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Pakistan’s intelligence agencies and human rights: An interview with Asma Jahangir

Q. Intelligence agencies in Pakistan are functioning without any law supporting their creation and functioning. Do you think that this a major reason for the involvement of intelligence agencies in human rights violations?

A.Well, yes, this is one of the reasons. And the second reason is that they are actually running the government. Now if you look at the whole question of elections, they have a hand in their outcome. It has been proven as to how they manipulate elections, how they even pay to get parties to support certain candidates. Then during the voting you will notice that they are present at polling stations. They seek candidates out and then they seek voters out on behalf of certain candidates. Not only that, they have their own sense of what security is. When they feel that security is threatened they feel that they have the right to go to any extent, picking up leaders of the opposition or those who are accused of terrorism and indeed even those who have been the prime ministers of the country.

Q. Are there any laws that govern the functioning of intelligence agencies?

A.Well, there is no law at the moment. We do not want to interfere in their workings but we want to know how many agencies there are, who they are, what their mandate is and what is their structure. [When we raise the issue] it is not an attempt to define their roles. Rather, we want to see that the agencies function according to a mandate, rules of engagement and within an accountability process. Agencies must know who they are accountable to. If the agencies know who they are accountable to but we cannot say who they are accountable to, then really it is a very sad situation that is bound to be misused. It is bound to affect human rights.

Q. But intelligence agencies invoke laws such as the Pakistan Army Act, the Security of Pakistan Act etc to justify their actions…

A.Yes, there are certain laws under which people are arrested. [But] the Pakistan Army Act is for army personnel. It was only recently that civilians began to be tried under it. If a civilian has been rousing people for rebellion within the army then that is a different thing. Otherwise you cannot simply pick up a civilian who has committed a crime and try him under the army act. But that has happened as well. So, I think we need to clarify this. I think we should not really go beyond the law itself.

Secondly, I think there are certain security laws under which every security agency can act. But the point is that they do not go by the law. They pick people up on their own and make them missing. Nobody hears anything about the missing until [the intelligence agencies] decide to throw them back to their families.

Q. Why have the legal issues remained absent from the national discourse on intelligence agencies so far?

A.It is not like that. [President Asif Zardari’s spokesman] Farhatullah Babar had raised the issue in the Senate when he was a member of the upper house. The response he got was that the law is a secret. The Human Rights Commission of Pakistan filed a petition in 2007, asking the court to ask the intelligence agencies and the defence ministry about laws or rules that authorise their functioning and what their mandate is, and that the interior and defence ministries together must spell out who [the intellige

nce agencies] are accountable to. The defence ministry stated that operationally [the intelligence agencies] are accountable to it but otherwise not. So, really nobody knows. [The intelligence agencies] were not even willing to come to court.

When we asked the court to appoint a commission to pinpoint the blame for missing people, what we asked for was a group of people – lawyers or anyone that the court appointed – to go and record the statements of those who had disappeared and came back so that the perpetrators could be identified. Now, if the Supreme Court cannot get the disappeared people back how could a commission comprising retired judges get them back?

I am very upset about the commission [that the Supreme Court has set up] because it sits within the interior ministry. Now if, God forbid, my child is lost, I will not go to the interior ministry to give them evidence, particularly when one person each from Intelligence Bureau, the Inter-Services Intelligence (ISI), police and interior ministry are also sitting around the table.

I don’t think this commission knew what it was required to do because they did not take down the statements of any of the people who had returned after remaining ‘missing’. [The commission did not] try to go and find out how they were picked up, who took them way, what was done to them, were they tortured, where they were kept, how many days did they disappear for. It is this kind of dossier that they should have prepared for the Supreme Court but they did not do that.

Q. What has been the role of courts in dealing with cases of arrests made by intelligence agencies?

A.Firstly, with all fairness to the courts, until a decade back it was unheard of for a court to take up a ‘missing person’s’ case where the accused included the military or intelligence agencies. The first such case that I can recall is when [The Friday Times editor] Najam Sethi was picked up. It was Justice (retd) Saeeduzzaman Siddiqui and then Justice (retd) Mamoon Qazi who passed the order for us to see Sethi while he was in the ISI’s custody. He was later also released [because of the court’s intervention].

Now when people move the court, in most cases the bodies of the missing people appear. It is not easy for the courts to control the intelligence agencies. There has to be concerted and coordinated effort on part of the courts, the parliament and the government. The court can issue an order but its implementation lies with the government. A really responsible court will never give an order it knows will not be implemented.

Q. What possible role law can play in controlling the intelligence agencies?

A.Well, I don’t think the law can ever be an effective tool but the law is the beginning of it. It sends a clear message to the intelligence agencies that they have to go by the book. Secondly, I think some of the intelligence operatives may have been genuinely misled into believing that

they have carte blanche. Until there is a clear mandate, a manual which defines the red lines that cannot be crossed, how would the new recruit know what these lines are, especially when their boss tells them that they are free to do whatever they want?

If it is the advice and reports of intelligence agencies that are going to be relied on during the judges’ appointments, if they are going to tweak the elections and if the intelligence agencies will ensure that a ‘trouble-maker’ for the government is harassed, then we the people have a right to know what their limits are.

Q. If you are asked to draft a law for defining the role of intelligence agencies, what kinds of constraints will you put into it?

A.I will not draft it myself. It is a very technical subject. It is something that needs deeper discussion because it has to have two aspects to it. Firstly, people’s rights must be protected and, secondly, the agencies have to remain effective. I would simply not compromise on the fundamental rights of people. Disappearance, torture — this is not what they can do.

Source: Dawn / Herald

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  • The ostensibly visible presence of external threat in the initial years of Pakistan had created enough space for intelligence agencies to work above the law (See “Revealing the Secret”). “As long as you needed an intelligence agency to meet the intelligence requirement of the army and to meet the requirements of guarding against external security threats, you did not need a law,” says Justice (retd) Tariq Mehmood, also a senior lawyer and human rights activist.

    The state used external threat as a powerful tool to silence any criticism of the functioning of intelligence agencies. Legal and intelligence experts, however, point out that the criticism of the agencies exists not because of their activities to neutralise foreign threats but due to their constant meddling in the country’s internal affairs. “As long as they were dealing with external intelligence, it was fine. The controversy started when they expanded their role into domestic politics,” says Dr Hasan-Askari Rizvi, an analyst based in Lahore.

    While many civilian critics blame Zulfikar Ali Bhutto for setting the precedent of agencies interfering in domestic politics, a former intelligence chief tells the Herald it was more so during the military regime of General Ziaul Haq. War in Afghanistan in 1970s-80s, in which Zia and his American and Saudi backers were deeply involved, “changed the nature of intelligence gathering in Pakistan,” he says. Foreign funding, an extended network of contacts across Pakistan to mobilise supports for Afghan war, and an eminent role in Afghanistan, allowed the Inter-Services Intelligence (ISI) to increase its strength, powers and functions phenomenally, says Dr Rizvi. “All this together allowed the intelligence establishment to expand its role into domestic politics,” he adds.

    Until then the Intelligence Bureau (IB) and Military Intelligence (MI) were the main intelligence-gathering institutions, in civilian and military spheres respectively. But during the Zia era, “IB was relegated to a secondary status and army-dominated intelligence agencies, ISI in particular, assumed a pre-eminent role,” an ex-intelligence boss says.

    The expansion of the role of intelligence agencies into domestic politics coincided with growing skepticism among political class and legal experts towards their functioning. The issues of some kind of a civilian control over them and the need for a law to govern their working became hot topics of debate, says Justice (retd) Mehmood.

    But voices raising these issues never developed into a potent force, mainly because the military has been ruling the country both directly and indirectly, he says. “In direct military rule, the office of army chief and the chief executive of Pakistan come together in one person. This allows intelligence agencies to escape the need to have a legal cover and face accountability by claiming that they are already answerable to the highest authority in the country,” he observes. The civilian governments that follow the military ones are always so weak that they fear raising the issue and annoy the army, he adds.

    The superior courts in Pakistan have also done little to change this state of affairs. Some legal experts and human rights activists claim that the courts informally granted a kind of immunity to intelligence agencies in so far as that they were never made respondents in cases dealing with the detention of individuals by them. A senior lawyer cites previous judgements in which superior courts have avoided reporting facts of cases registered under the Security of Pakistan Act and the Pakistan Army Act, in an apparent attempt to keep the working of the intelligence agencies a secret.

    This continued until recently despite the fact that there is no explicit bar on the jurisdiction of the superior courts to hold any state institution answerable, says a legal expert.

    Herald exclusive: Intelligence questions
    January 24, 2011

  • Sometime in 2008, senior officials of Pakistan’s premier civilian intelligence agency, the Intelligence Bureau (IB), were asking themselves a basic question: should IB retain the power of arrest or forego it? The debate on the issue continued for a few months before it was concluded that the primary task of the agency was to gather actionable intelligence and that it should give up its powers of arrest; the police should handle arrests on behalf of IB.

    This coincided with another internal exercise within IB to draft a law for providing legal basis to its working. “The idea was to put in some legal constraints, considering the human rights issues that had recently permeated the national discourse,” says a former senior official of IB involved in the exercise. The draft law, for instance, called for bringing the pervasive telephone tapping by intelligence agencies under judicial check. “We proposed that telephone taping would be allowed only under a judicial order and not under an executive order,” he adds.

    The time was ripe for such a change. A democratically-elected government had just taken office in Islamabad after nine years of military rule. The political elite had developed a near consensus – as reflected in the Charter of Democracy – to curtail the influence and powers of intelligence agencies. What further reinforced this atmosphere of change was that the civilian government appointed Shoaib Suddle as IB’s head, the first non-military man to hold the post in nearly two decades.

    The draft law was to be shared with senior officials of the newly-formed government but that proved to be a non-starter. “[The draft] needed the approval of the president and the prime minister to be tabled before the parliament,” recounts an Islamabad-based retired official who was part of the exercise. “We discussed this with some senior officials of the government. They agreed with the basic idea of the draft but then did not take it seriously.”

    After receiving a cold response from the government, IB bosses did not press any further. Apparently the idea of bringing the intelligence agency within the ambit of law did not appear to the government as a move in the right direction. “The main reason was lack of understanding because nobody in the government or the intelligence establishment has an inkling of how effective a check a legislative act can prove to be,” comments a former intelligence boss.

    Then in July 2008, the Pakistan Peoples Party government decided to put the Inter-Services Intelligence (ISI) under the interior ministry, and issued an executive order placing it under the administrative, financial and operational control of the ministry. But intelligence officials point out that it was not a move aimed at ensuring that the agencies worked as per some law. “It indicated the government’s attempt to bring them under its political control,” says a former intelligence boss. The order was reversed within hours, the government said, to dispel the impression “that there were differences between the civilian government and the army.”

    Legal experts are of the firm view that defining the jurisdiction of intelligence agencies through a legislative act is a much wider issue than simply putting them under one or the other ministry. “Many problems in the present functioning of the spy agencies arose simply because there is no law defining their jurisdiction,” opines a legal expert. But the withdrawal of the order to bring the agencies under civilian control strengthened the impression that the government had failed to depart from the tradition of conducting ‘intelligence business’ without a law that could define the jurisdiction of the agencies concerned.

    Has anyone seen the executive orders that created the intelligence agencies and that govern their working? “Nobody has,” says Dr Hasan-Askari Rizvi, a historian of civil-military relations in Pakistan. In the absence of any information about them, even the most ardent scholars of Pakistan’s political and security history are only making guesses on what they could be.

    Indeed, Pakistan is one of the few democracies in the world where intelligence agencies enjoy the ignominious distinction of functioning without any legal document supporting their creation or functioning. No less a person than the highest law officer of the state, Attorney-General Maulvi Anwarul Haq, informed the Supreme Court in November 2010 that there exists no such legal instrument.

    But over the years intelligence agencies have invoked many laws to justify rounding up, investigating and imprisoning people they deem anti-state elements. These include the Security of Pakistan Act 1952, Pakistan Army Act 1952, Defence of Pakistan Act and Prevention of Anti-National Activities Act 1972. None of these laws, however, lays down what powers the spy agencies have and how best should they use those powers. “A law to define the jurisdiction of the intelligence services is missing from the statute books,” says Justice (retd) Tariq Mehmood, a senior lawyer, former high court judge and a human rights campaigner.

    In the absence of a law it becomes easy for the rulers to arbitrarily expand the role of the agencies into domestic politics without having to bother about any legal authorisation. For instance, “the ISI was created for external intelligence but General Ziaul Haq used it for domestic intelligence-gathering. Similarly, General (retd) Perzez Musharraf used the Military Intelligence for intelligence gathering on domestic politics,” says Dr Rizvi.

    The lack of any legal or parliamentary oversight for the intelligence agencies creates problems of governance that in the past have developed into full-blown crises. For instance, questions about the loyalties of Pakistan’s premier intelligence agency, ISI, have remained unanswered over the years and on more than one occasion have led to tensions between the civilian government and the military.

    At least twice in the recent past has this flared up with disastrous consequences for democracy in Pakistan. When Benazir Bhutto appointed a retired army officer, Lieutenant-General (retd) Shamsud Rahman Kallu, as ISI chief during her first tenure as prime minister, the decision led to tensions between her and the then Chief of the Army Staff General Aslam Beg. Similarly, Lieutenant-General Ziauddin Butt, who headed ISI during Nawaz Sharif’s second term in power, was one of the reasons why tensions between the prime minister and the army chief started and persisted, culminating in Sharif’s removal from power.

    Dr Rizvi believes that creating a law for the agencies will also help settle the question of who is in charge of them and thereby reduce the likelihood of tensions over appointments in them. “If you introduce a law then you will have to define whether [ISI] is a civilian institution or a military institution,” he says. Once defined, this will also decide who can appoint whom, he adds.

    But Dr Rizvi also points out that there are understandable reasons for the lack of interest on the part of the incumbent government to curtail the influence and power of intelligence agencies. “The civilian governments do not want to control ISI [and other intelligence agencies] because they think it will annoy the army.”

    Jutsice (retd) Mehmood agrees: “The debate about the legality of the intelligence agencies is not part of the national discourse because generally there is a sense of fear prevalent in the society [about their powers].”

    Some senior bureaucrats with extensive experience of intelligence services are, therefore, of the opinion that a legislative act will hardly prove an effective check on the functioning of the spy agencies. “A legislative act may be necessary but it is hardly sufficient, given the immense powers the intelligence agencies enjoy,” comments one of them.

    There is also no dearth of voices opposing any move to impose legal constraints on the functioning of intelligence agencies. Their logic is simple: the very nature of intelligence gathering militates against the concept of imposing legal constraints on the functioning of intelligence organisations. “The nature of their work is such that they have to work in deviation of the law and they have to keep it secret as well,” says former ISI chief General (retd) Hamid Gul. “This is the same all over the world and there is nothing unusual and new about it.”

    A former head of IB, however, is not convinced. “The question we need to ask ourselves is what exactly our intelligence agencies are doing for which they want legal exception,” he says. To find that out, we need to first have the rules and regulations before being able to decide what exceptions could be allowed and under what circumstances.

    Revealing the secret
    Herald Exclusive
    January 24, 2011

  • Shame on you, what rubbish articlte. I don’t know from where people get time to produce garbage. Baseless, no facts, without any logic. How you do gonna clarify your self as a Pakistani by speaking against your own agency.
    Either you are mindless nut or a little girl playing online, ignoring about the consequence you could face.

  • Court martial of Indian general gets Pakistan judge thinking

    Citing the example of a serving Indian Army general who was court-martialled, Pakistan Chief Justice Iftikhar Muhammad Chaudhry has wondered “why don’t a few top guns in our country get booked for their wrongdoings”, and added, “It is high time that some heads roll”. Justice Chaudhry made the observation while hearing the case of an alleged staged shootout last year in which a boy was killed.
    Express Tribune reported that the chief justice took a cue from the court martial of a serving general in India and said Friday that those responsible will be brought to book.

    “Why don’t a few top guns in our country get booked for their wrong doings,” Justice Chaudhry asked during hearing the case.

    “It’s high time that some heads roll,” he was quoted as saying.

    India’s Lt Gen PK Rath was found guilty on three counts in the scam in which a no-objection certificate (NOC) was issued to a private realtor to transfer a 70-acre plot of land adjacent to the Sukna military station in West Bengal’s Darjeeling district.

    The police inquiry report said that 16 low ranking Pakistani police officials were sacked in connection with the staged shootout case.

    These include four inspectors, five sub-inspectors, one assistant sub-inspector and five constables. An inspector was also forced to retire.–judge-thinking/Article1-656020.aspx