Islamabad High Court (IHC) senior puisne judge Justice Mohsin Akhtar Kayani on Friday ordered the live streaming of all missing persons cases to “facilitate public awareness and understanding of important legal issues”.

The development came as Justice Kayani resumed hearing a petition seeking the recovery of missing Kashmiri poet Ahmed Farhad Shah.

The judge also summoned the sector commanders of the Inter Services Intelligence (ISI) and Military Intelligence (MI), the director of the Intelligence Bureau (IB), Law Minister Azam Nazeer Tarar and the defence, law and interior secretaries in the next hearing on May 29.

Key takeaways from written order:

• Defence secretary summoned to explain official practices of ISI, IB, MI
• Issue of missing persons currently “most important issue of public interest”
• PFUJ secretary, journalist Hamid Mir appointed judicial assistants
• Allows case proceedings to be reported
• Orders live streaming of all missing persons cases
• Orders police report on cases against unknown persons in last year regarding abductions
• Orders law minister, secretary to present as judicial assistants on perception of agencies
• Questions what are duties of three agencies, where they are defined, what code they are subject to
• Questions how many people have been detained by agencies, how many cases registered by police
• Questions what action taken against agency personnel if found involved in illegal actions
• Orders authorised personnel from agencies to assist court about their administrative affairs
• Asks about accountability mechanisms within agencies

The Human Rights Commission of Pakistan had called for the immediate release of Shah, who had been allegedly abducted from his home on May 15.

A petition had been filed by Shah’s wife in the IHC the same day, requesting that he be found and produced before the court and to identify, investigate and prosecute those responsible for his disappearance.

On May 16, Justice Kayani had summoned a report from the defence secretary on the alleged role of intelligence agencies in the poet’s disappearance.

Earlier this week, the judge, expressing dissatisfaction with the “working” of the defence secretary, had called on intelligence agencies to shed the label of culpability in abductions.

Upon seeking an explanation from the defence secretary by 3pm the same day, the court had been informed that Shah was not in the custody of the Inter-Services Intelligence (ISI). Justice Kayani then summoned the defence and interior secretaries in person the next day.

However, on Tuesday, Attorney General of Pakistan (AGP) Mansoor Usman Awan had submitted the defence secretary’s report, stating that the official was sick. The judge again said that the secretary should appear before the court in the next hearing.

Justice Kayani then ordered the AGP to recover the missing poet within four days, which he took “full responsibility” of. Upon being asked about the ISI sector commander’s statement, Senior Superintendent of Police (SSP) Jameel Zafar told the court he could not do so due to the former’s absence.

During today’s hearing, AGP Awan and Islamabad Inspector General (IG) Ali Nasir Rizvi appeared before the court.

The court order, written in Urdu and available with Dawn.com, said: “The AGP was asked [whether] the law enforcement institutions, including ISI and MI, were performing their duties under any law to which the AGP said that the ISI is directly accountable to the prime minister of Pakistan while the MI is associated with the defence secretary and the armed forces of Pakistan.

“Looking at the explanation of this matter, the court considers it necessary that all the institutions should work within their constitutional limits, but in the present situation, we cannot do a comparative assessment of the administrative performance of the ISI with the police, FIA (Federal Investigation Agency) and CTD (Counter-Terrorism Department) until the court is briefed about official practices in institutions such as the ISI and MI, including the way to conduct investigation and inquiry.”

The order said the defence secretary was thus summoned in his personal capacity so he could submit a written explanation to the court on the above matters.

“This would allow the court to clarify the role of the agencies in the jurisdiction of police investigation in the future and lead them to be accountable in the jurisdiction of the court,” the order said.

It further said: “During the discussion, the court has come to the conclusion that the issue of missing persons is the most important issue of public interest at the moment,” adding that for this, no legislation was passed by Parliament so far to “make the role of law enforcement agencies usable or responsible”.

The court order said that no considerable benefit was availed from the Commission of Inquiry on Enforced Disappearances, adding that all such issues could only be solved currently by understanding the “internal discretionary and administrative matters” of the aforementioned agencies.

The judge subsequently ordered AGP Awan and the petitioner’s counsel, Advocate Imaan Zainab Mazari-Hazir to to nominate experts in this matter to the court and also appointed the secretary of the Pakistan Federal Union of Journalists (PFUJ) and senior journalist Hamid Mir as judicial assistants in the case.

Pemra gag order, live streaming of missing persons cases

The order said the judge was also informed by Mir about Pemra’s gag order on television reporting of court proceedings, adding that as per the senior journalist, the notification came following the previous IHC hearing of Shah’s case.

The order said the AGP subsequently informed the court that it could order the reporting of cases it deemed to be appropriate.

“As this case is of an important nature which concerns the people of Pakistan, this court allows the proceedings of the case to be reported.

“No action or notification of Pemra is pending before the court so no order can be issued regarding it.

“Further, the court orders live streaming of all missing persons cases to facilitate public awareness and understanding of important legal issues,” the order said.

It further directed the court registrar to produce an administrative note on the matter.

Questions to devise formula for missing persons cases, agencies

The order further said that the problem of missing persons was “not a singular problem, nor will it end after the recovery of the present hostage”, adding that it was thus necessary to permanently formulate a procedure for the issue.

The judge posed the following questions and instructions for the respondents in the case, which he said were necessary for the future proceedings of the court.

Justice Kayani ordered IG Rizvi to submit a written report of the cases registered against unknown persons in all police stations in the last year in which investigating officers recorded the statements of the abductors or the statements of the next of kin regarding the allegations levelled against any agency, further asking that what statement was recorded of the relevant agency’s sector commander in this regard while investigating.

The judge asked what state assistance was possible in the form of compensation to the families of missing persons and enforced disappearances, along with what was the procedure required for it.

The judge further noted: “In general, IB, MI and ISI are accused of missing persons and enforced disappearances, which has affected their reputation and governance and created a negative perception of these institutions in the eyes of the public.

“What steps has the state taken so far to eliminate institutional antagonism and the negative public perception of key state institutions and their reputation?”

He ordered that the law minister and secretary present themselves as judicial assistants in this regard.

Justice Kayani next asked what were the duties of the ISI, IB and MI sector commanders, which legal act defined them and what code were they subject to regarding administrative matters.

The judge also asked whether any investigating officer had recorded and included the statement of any IB, MI or ISI personnel or officers in any case registered in the last year, and if so, what was the procedure for it.

Justice Kayani asked for an explanation on whether the intelligence agencies had issued any standard protocols and rules regarding working together with police departments.

“How many people have been detained by IB, MI and ISI to date concerning the investigation,” the judge questioned. He additionally asked how many cases had the police registered and how many people were indicted regarding this category of investigation.

“In the last year, if IB, MI and ISI officers have been found involved in illegal detention, blackmailing, phone tapping or harassment, what action has been taken against them and how many government officials have been punished?”

Justice Kayani enquired how about the amount of expenses if the aforementioned intelligence agencies had detained any Pakistanis or foreigners in the last year.

The judge ordered the authorised personnel of the three agencies to appear in court and assist it regarding their administrative affairs.

Justice Kayani said that the judicial assistants in the case, particularly journalists and the PFUJ secretary, had to explain what negative or positive results the reporting of missing persons or other cases through electronic or print media could have, as well as what extent such reporting could be helpful in protecting fundamental rights of citizens.

“Furthermore, what laws allow for any restrictions on such reporting and what procedures can be adopted regarding the disclosure of missing persons and abductees of enforced disappearances to help end this heinous practice?”

Lastly, the judge questioned what administrative procedures were systematically notified within the agencies in detail which displayed a system of “self-check” in them, as well as a mechanism of accountability under which officers and employees were accountable for their mistakes.

The hearing

At the outset of the hearing, AGP informed the court that a few call detail records (CDRs) were available that were being used to trace Shah.

At this, Justice Kayani asked him, “Are you saying that the state has failed?”

To the AGP’s reply in negative, the judge observed, “To recover [the missing person] is the state’s compulsion, otherwise it would be its failure.”

Justice Kayani then asked if the defence secretary was present, to which Awan said he was not as the court order had not mentioned so. “However, he will appear [if summoned],” the AGP assured the judge.

Justice Kayani then ordered: “The defence secretary should appear at the next hearing and explain to us the ISI’s workings.

“How many sector commanders and their sub-ordinates are in the ISI?” he asked, adding that intelligence agencies would no more remain “in hiding”.

The judge reiterated that not recovering Shah was the state’s failure, at which AGP Awan requested the court to not term it a failure: “If we are not able to present him [before the court], I’ll admit that the state has failed.”

At this point during the hearing, Justice Kayani, referring to the police officials present in the court, said they had appeared there as they were “answerable”.

“Transparency in the working is highly important,” the judge observed, noting that while performing their duties, policemen “get beaten and have their uniforms torn apart too”.

“If neither institutions are answerable nor can you make them answerable, what would happen? There must be a structure for agencies [where] someone is answerable to someone,” Justice Kayani noted.

The judge then remarked that at this point, Shah’s recovery was inconsequential compared to “a few things” that he said he would settle.

“Now, the ISI sector commander’s statement will be recorded in the missing persons case. A police officer will record his statement and write it,” Justice Kayani stated.

The judge said the defence secretary should explain to the court “how the ISI collects data” and how many people work under the sector commander.

“It is our belief that all institutions are answerable to the nation,” Justice Kayani observed. “Ask other institutions’ officials if they have ever been suspended; they would never have been but a police official would say he has been suspended 24 or 38 times.

“We will now form a mechanism for those who go missing across Pakistan,” the judge said.

The judge has to decide after looking at the law, Justice Kayani said, adding that recovering the person was not the solution to the matter.

He then sought an explanation on the next hearing of the laws under which intelligence agencies were regulated, adding that a judge does not share “protected information”.

Recalling that in another older case on missing persons, the defence and interior secretaries were fined Rs10 million each, Justice Kayani said, “I have never seen a court grant bail to a terrorist.”

“It has been 10 days [since Shah went missing]. I don’t know what state the poor person must be in,” Justice Kayani remarked.

He further said that the court assistants would be appointed in the case, including journalists and former police IGs.

At this point during the hearing, senior journalist Hamid Mir highlighted that journalists in Pakistan were facing great difficulties.

Recalling Justice Kayani’s remarks made during a recent hearing in the same case, Mir said the law minister “held a press conference” regarding those.

He then brought the judge’s attention to a gag order on television channels reporting court proceedings, at which Justice Kayani observed, “That notification is not for me.”

At Mir highlighting that as per the Pemra orders, only airing court proceedings of live-streamed cases was allowed, Justice Kayani said: “Whichever case on missing persons is fixed before this court, its hearing will be live-streamed.”

Mir claimed that the government had “announced a war against the media through Pemra” and asked the judge if the proceedings of the current hearing could be reported on television.

“The media absolutely is allowed to report this,” Justice Kayani observed, adding, “The Pemra order is not present before me. We will live-stream this court’s proceedings at the next hearing.”

“I will issue an order for broadcasting missing persons’ cases live,” he stated.

The judge further observed that a larger bench should be formed to hear such cases so that the “matter could be solved”.

Here, Justice Kayani said: “This is a very difficult time. We all are standing up not for one person but for the entire country. Whatever has happened in the last three years is before everyone. The work that one team did, the other team has now made it the suspect.”

At this point during the hearing, the senior superintendent of police (operations) appeared before the court.

“[Shah’s] location has been traced. A [police] team is present there,” he informed the court, at which the judge asked him which agency the police were seeking assistance from.

Upon the SSP replying that the police were seeking assistance from the Intelligence Bureau (IB), Justice Kayani asked whether the ISI and the Military Intelligence (MI) were not taking part in the recovery efforts.

Here, Justice Kayani recalled that the missing person commission’s registrar had been summoned, observing that the body’s performance was upsetting.

“They are also agreeing [to the orders] here [but] are not releasing the [missing] person either. The commission is at their mercy [so] when they are releasing [the person], they receive an order [against it] from another place,” the judge remarked.

“Is there any example that an intelligence officer was prosecuted?” the judge asked, adding that there was none.

“This immunity that has been granted must be ended. Or legislation can be done to authorise the [intelligence] agencies for six months each time,” Justice Kayani said. At this, AGP Awan responded that the Constitution did not allow so.

“The Constitution does not allow other things either but they are taking place,” Justice Kayani quipped.

The judge then ordered SSP Zafar to record the ISI sector commander’s statement in the case and said that he should appear in person at the next hearing.

“I believe that the sector commander is equivalent to an SHO (station house officer),” Justice Kayani remarked.