Intelligence on intelligence
MUCH of the loss of resources and mental peace caused by cases such as the memo affair, the Adiala Eleven and involuntary disappearances could have been avoided if the working of intelligence agencies had been regulated under the law. Yet, there is no sign of the needful being done.
Fourteen months have passed since the Commission of Inquiry on Enforced Disappearances made a series of recommendations to the government for regulating the intelligence agencies’ functioning. Unfortunately, the government has not released the commission’s report. Its law officer got away in January last year by telling the Supreme Court that the report contained classified material that could not be shared with the people. This attitude of the government is not only in violation
of the people’s constitutional right to information but also amounts to shielding the intelligence network against legitimate oversight and censure.
However, quite a few observations and recommendations of the commission were published in the press and these have never been denied. For instance, the commission is said to have found evidence to support allegations of military intelligence agencies’ involvement in the arrest and detention of some of the missing persons. Accordingly, it stressed the need to ensure that arrests were made only by legally authorised officials. The intelligence agencies were advised to rely on the police force for taking anyone into custody.
The commission is reported to have made a strong plea for reining in the intelligence personnel, which clearly reflected the judicial authorities’ unease at the undue freedom practically exercised by the agencies. The government has no valid excuse for ignoring these recommendations.
While the report of the 2010 commission has unnecessarily and unjustifiably been put in cold storage, the report of the Saleem Shahzad Commission of Inquiry is fortunately available, thanks to its authors’ plea for making it public.
This report by the commission headed by Justice Saqib Nisar of the Supreme Court and which was submitted to the government on Jan 10 last is extremely important not only as a guide to some of the citizens’ most fundamental rights but also for offering a workable plan to put intelligence agencies in some order.
Pointing out the importance of making the agencies accountable, the commission says: “Currently, it seems that the legal and organisational foundations of the two major agencies (ISI, IB) all rest on mere executive orders, there is therefore an urgent need for laying down a comprehensive statutory framework — perhaps a Pakistan Secret Services Act”.
The commission is not content with confirming what many leaders of public opinion and citizens have been complaining of for years, namely, the absence of any law on these agencies’ powers and procedures. It deserves credit for going on to lay down a system of their accountability at three levels: “within the agency and before the minister-in-charge; before a Parliamentary Committee [and thus parliament and the public]; and before a judicial forum”.
There is an explicit suggestion that, under the proposed law, “duties which fall beyond the competence of the various agencies, such as press censorship, liaising with political parties and the conduct of foreign policy, should be expressly excluded from their mandate”. The commission also offers valuable suggestions for a proper chain of command and a “more accountable work culture”.
Arguing that “the agencies should be made directly accountable to the parliament”, the commission refers to the possibility of creating bipartisan standing committees on intelligence in both houses of parliament. “The aim of parliamentary scrutiny should be two-fold: (i) improving the efficiency of the agencies; (ii) preventing excesses through oversight and ensuring public confidence in the agencies”, it argues.
As for the agencies’ judicial accountability, the commission says: “A special judicial oversight mechanism may be set up for dealing fairly and effectively with complaints against the agencies”, emanating from any source, and adds that it may be useful to create the office of a human rights ombudsman.
These salutary recommendations merit earliest possible consideration. The government might plead lack of time while it is fighting for breath. It can be shown the state should start breathing more comfortably and might be better able to face the diverse crises it has courted if it took substantive steps to regulate the working of secret services.
The people on their part have for long been stressing their right to know under what law they are followed by tough-looking plainclothesmen, their mail is censored, their phones are tapped, they are threatened by phone or SMS, and they are picked up at odd hours to answer all kinds of irrelevant questions. They want to know under what law the agencies are authorised to restrict their right to travel or to join a superior service. They also wish to find out under whose authority the intelligence
agencies work and where the forums of appeal and redress are.
Thus there is every reason that the government should immediately begin to find a way of bringing intelligences activities within the parameters of the law and of fundamental human rights. To begin with a joint parliamentary committee may be set up to draft the required reform package. The law commission may also be requested to suggest means to enforce judicial accountability of the agencies.
Unfortunately, the moment one mentions the need for regulating the secret services some people start clamouring about attacks on the state’s security and its sacred services. These quacks are the worst enemies of the defence forces. There should be no doubt in anybody’s mind that the privileges the intelligence agencies have assumed are bringing a bad name to the defence services and undermining public confidence in their probity, discipline and sense of responsibility, without which even the best equipped forces cannot discharge their primary duty to defend the state’s territorial integrity.
One this point one cannot do better that quoting the two commissions referred to above. The 2010 commission (missing persons) said: “We, on our part, tried to persuade the representatives of the agencies in every possible manner, impressing upon them that such illegal detentions for long periods would be counter-productive and not only bring a bad name to the country but would also lower the esteem of these agencies and our armed forces, which is in no way desirable. The sooner there is a realisation of this the better for all of us” (quoted by the Shahzad Commission).
And the 2011 commission (Saleem Shahzad) says: “If the agencies conduct their activities completely beyond the purview of the law, and without maintaining any sense of transparency and accountability in their conduct, they risk losing their most precious strategic asset — the trust of the people, whose security they are supposed to ensure. Currently, it seems that we would be better off with more accountability than we presently have even when it means a little less of secrecy”.
The commission submitted its report “in the hope that it findings would be shared with all concerned and that its recommendations would be considered honestly and seriously”.
That would be an intelligent way of dealing with intelligence.