"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." - File Photo

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.