Parliament needs to define law for operation of spy agencies

The laws under which the spy agencies function and the authority they answer to remain a mystery in the country, even as the world turns into a global village. Our parliament, which is active and famous for introducing amendments in the law to bring it in conformity with the present day’s needs, needs to immediately define laws to regulate the function of the spy agencies and bring them under the ambit of law. The question about the law regulating the functioning of spy agencies has come and agitated before the Supreme Court many times, but it still remains unanswerable.
When the Supreme Court took suo motu notice of missing persons in 2006 on an application of Amna Masood Janjua, whose husband Masood Janjua went missing in 2005, the spy agencies first denied having custody of any of the missing persons, but gradually, the Supreme Court secured the recovery of about 172 missing persons, whereas hundreds of others have yet to be traced and recovered. A few weeks ago, the Supreme Court was informed that of 445 cases, 273 cases of missing persons were still pending. No citizens differ on the fact that everyone working against the interest of the country or involved in the terrorism or any other heinous crime should be brought to justice, but due process of law should be followed.
Law and the constitution do not allow any of the state agencies to pick people arbitrarily and confine them, without following the due process of law. The Senate Functional Committee on Human Rights recently observed that there was a need to get rid of the status quo and suitably check the abuse of power to stop violations of human rights in the country. It said the Anti-Terrorism Act may be overhauled in true letter and spirit and be implemented as soon as possible and suitable amendments in the laws may be made to bring the law enforcing officials accountable before the elected representative as well as courts.
State institutions should play their role positively to establish the rule of law in the country. During a hearing of the missing persons’ case on November 26, 2010, a three-member Supreme Court bench headed by Chief Justice Iftikhar Muhammad Chaudhry had asked about laws that governed the country’s spy agencies, but was informed by none other than the chief law officer (attorney general) Maulvi Anwarul Haq that there were none. The court had raised the question while referring to a reply submitted by Attorney General Maulvi Anwarul Haq on behalf of two premier intelligence agencies — Inter-Services Intelligence and the Military Intelligence. In their brief reply, the agencies had denied having custody of 11 missing prisoners of Adiyala Jail and said an office could not be sued because the proper party in such matters was always the federation through the secretary of the ministry concerned. What had displeased the court was that the statement was not even signed by heads of the spy agencies. “Do they consider themselves above the constitution and the law,” the chief justice had inquired.
He was informed that under Section 79 of the Pakistan Penal Code (Act done by a person justified or by mistake of fact believing himself justified by law) notices could not be issued to these departments. “You have to study it thoroughly because you have raised a vital question and that notices to the intelligence agencies were issued under Article 185(3) of the Constitution and the Supreme Court Rules 1980,” the chief justice had observed. “The PPC was a subordinate law to the constitution and this court is ruled by the constitution”, the chief justice said. He had also observed that the attorney general had not cited any provision or law, article or statute governing the affairs of these agencies. “Your assistance will be of great importance in case we decide the matter,” the chief justice had said, adding that the court could deliver a verdict if he wanted, but he should first ponder over the matter again. The attorney general, however, had conceded that there were no rules or laws to manage these agencies. “I will not mince my words and will make it clear (by asking) if you want to create confrontation among institutions, which you have done, then go ahead,” the court had said, adding that it was the duty of the state to resolve the matter and being part of the state it was the duty of the court to find out the missing prisoners.
While hearing the missing persons’ case, the court repeatedly noted that it was handling the matter very carefully, as if it delivered a judgment, it will open a Pandora’s box. Then Rawalpindi DCO Imdadullah Wassal and home secretary Shahid Khan had issued detention orders of these 11 prisoners even after the Lahore High Court had upheld a trial court’s decision to acquit these suspects in cases of a rocket attack on the Pakistan Aeronautical Complex in Kamra, firing of anti-aircraft shots at a plane carrying former President Pervez Musharraf and a suicide attack on a bus of an intelligence agency in Rawalpindi and at the main entrance of the GHQ. These prisoners were then picked from Adiyala Jail on May 29, 2010 by the agency officials the day they were to be released after bail. Later, after repeated orders of the Supreme Court, the spy agencies had conceded that these eleven prisoners were being tried under the Army Act. But none of them was ever tried. The court had then disposed of the plea, asking the attorney general that custody of these prisoners was being handed over to him.
Later, a plea was filed a couple of weeks ago that four of the eleven prisoners, had died. The court then again initiated action into the matter, ensured production of the remaining seven and directed the Khyber Pakhtunkhwa chief secretary to produce the record of the internment centre at Parachinar where three detainees were being kept, how had the four prisoners died and the medical condition of the other four admitted to Lady Reading Hospital. The court directed the attorney general to procure record to satisfy it on their detention prior to January 26, 2012 and also whether they were proceeded against under any provision of law and if so, what was the result. “The chief secretary is also required to collect the relevant record to satisfy the court under what circumstances the detained persons had been allowed to be admitted to the internment centre because such action could not be taken in a mechanical manner but had to be taken through an order passed by applying judicial mind, as regulations required proformas before admitting them to the centre”, the court noted and adjourned the hearing until March 1.