May Issue 2019

Will justice prevail? Supreme Court judge, Qazi Faez Isa.

Justice Faez Isa’s judgement in the suo motu case involving the Faizabad dharna of 2017, has generated quite a storm, and no less than eight petitions have been filed for a review and for securing changes in the text.

The petitioners include the Pakistan Tehreek-i-Insaf (PTI), the Ministry of Defence, the Intelligence Bureau (IB), the Election Commission of Pakistan (ECP), (PEMRA), MQM, Minister for Railways Sheikh Rashid Ahmed and Ejazul Haq. All of them are keen to get references to them vis-a-vis the dharna expunged, and get the defence personnel involved cleared.

Not only that, the Punjab Bar Council has demanded Justice Qazi Faez Isa’s removal from the Supreme Court bench. Its zealotry can only be described as out-Heroding Herod, and coming generations of lawyers might feel a sense of shame because of its resolution.

Whatever the Supreme Court verdict in the case may be, any comment at this stage on the merits of the review petitions should be avoided. The present piece of writing is aimed only to inform the public what the impugned judgment has said.

While their demand for a reversal of a meaningless change in a declaration by Muslim candidates for election had been conceded, the dharna staged by the Tehreek-e-Labbaik (TLP) from Nov 5 – 26, 2017, caused great hardship to the people of the twin cities of Islamabad and Rawalpindi and paralysed life to a large extent. The Supreme Court took suo motu notice of the situation under Article 184 (3) of the constitution.

In a meticulously drafted judgment reminiscent of his report on a massacre in Quetta, in which a great many lives were lost, Justice Faez Isa recalls the May 12, 2007 massacre in Karachi and the 2014 PTI-PAT dharna in Islamabad, and points to the impact the state’s failure to enforce its writ in these cases might have made on the TLP’s thinking.

The honourable judge then examines the conduct of the ECP in registering TLP as a political party, contrary to the law. The statements issued by some political leaders and the performance of the defence personnel in getting the matter resolved are discussed in detail.

The judgement notes the failure of PEMRA to take notice of TLP’s hate speech and to protect the legitimate rights of licensed broadcasters. It also notes complaints of media repression made by the Council of Pakistan Newspaper Editors (CPNE) and the Pakistan Federal Union of Journalists (PFUJ) and observes: “Overt and covert censorship is unconstitutional and illegal. Nebulous tactics, such as issuing advice to self-censor, to suppress independent viewpoints, to project prescribed ones, to direct who should be hired or fired by media organisations is also illegal.”

The court wanted to know about the source of livelihood, place of work, and funding of the TLP leadership’s activities. The Inter-Services Intelligence (ISI) said it did not have the mandate to gather such information. The court then asked the Attorney General (AG) about the law/rules/regulations governing the ISI. The AG’s response did not satisfy the court and it observed: “We are disappointed with the manner in which the government handled this aspect of the case; by ignoring an issue, it does not go away. The perception that the ISI may be involved in or interferes with matters with which an intelligence agency should not be concerned, including politics, therefore was not put to rest.” The court recalled its decision in the Asghar Khan case and the bar to intelligence agencies’ involvement in any political activities whatsoever.

The declarations and directions issued by the two-member bench of Justice Mushir Alam and Qazi Faez Isa included the following:

• Subject to law, citizens have the right to form and join political parties.
• Subject to reasonable restrictions every citizen and political party has a right to assemble and protest.
• Protesters who obstruct traffic or destroy property must be held accountable.
• The ECP must fulfil its constitutional duties. If a political party does not comply with the law applicable to political parties, the ECP must take action under the law.
• All political parties have to account for the sources of their funding.
• The state must always act impartially and fairly. Institutions must act independently of those in government.
• Anyone issuing a fatwa or a message that puts anyone to harm must be dealt with under the Penal Code, Anti-terrorism Act and the cyber crime law.
• The intelligence agencies must not exceed their mandates. They cannot curtail the freedom of speech and expression.
• Intelligence agencies should monitor the activities of all those who threaten the integrity of the country.
• To best ensure transparency and the rule of law, it would be appropriate to enact laws which clearly stipulate the respective mandates of the intelligence agencies.
• The Government of Pakistan, through the Ministry of Defence and the respective chiefs of the army, the navy and the air force are directed to initiate action against the personnel under their command who are found to have violated their oath.
• The police and other law enforcement agencies are directed to develop standard plans and procedures with regard to how best to handle rallies, protests and dharnas.
• We direct the federal and provincial governments to monitor those advocating hate, extremism and terrorism and prosecute the perpetrators in accordance with the law.

To any independent reader this judgement might appear as an exercise in understatement. The court seems to be keen not to ruffle the feathers of the most privileged state actors. It is not even half as candid while discussing the intelligence agencies as, for instance, the Saqib Nisar Commission of 2011 was.

The need to give the activities of intelligence agencies the cover of law has been debated for many years, especially during the last eight to nine years. The reason is obvious. These agencies’ claims that they are doing everything in the national interest cannot be ignored. But under a global consensus, even actions that can be justified in the national interest must have legal sanction.

Thus the 2010 commission of three retired high court judges, that had been set up by the government at the suggestion of the Supreme Court to probe enforced disappearances, paid considerable attention to the functioning of intelligence agencies and the need to give them legal cover. The report of that commission has not been made public but media reports, that have never been denied, have disclosed that the commission had called for “reining in” the intelligence agencies.

A bill on the subject was moved in the Senate but it was withdrawn, presumably in ‘the national interest.’

Perhaps the most exhaustive discussion on the role of intelligence agencies and the need to regulate their work in accordance with the law was carried out by the 2011 commission of inquiry concerning the gruesome incident of the abduction and murder of journalist Syed Saleem Shahzad, who had a strange love-hate relationship with the intelligence services, especially the ISI. The commission comprised Supreme Court Judge Mian Saqib Nisar as president, and the members included Agha Rafiq Ahmed Khan, Chief Justice of the Federal Shariat Court, Bani Amin Khan, IGP Islamabad, Javed Iqbal, IGP Punjab, and Pervaiz Shaukat, PFUJ president.

Those opposing any legislation to regulate the working of intelligence agencies do them a huge wrong. In the absence of a legal cover, these agencies cannot win public respect and all those working for these agencies will have their minds burdened, in addition to the strains caused by their arduous calling, by a feeling of guilt for working outside the ambit of the law.

Most of the journalists who made statements to the commission suspected ISI’s involvement in the gruesome murder and the commission extensively grilled the top brass at the agency’s large media wing. And the latter cooperated with the commission to an extent that has no parallel in the country’s history. Fortunately, the report of the commission is available to the public and its recommendations deserve due consideration.

The commission began by suggesting, as a first practical step, that the press be made law-abiding and accountable, and referred to the role the Press Council of Pakistan could play in this regard. (The commission was amused by an ISI officer’s plea that the agency should avoid patronising undesirable journalists).

The second practical step suggested by the commission envisaged “making the agencies law-abiding and accountable.” This was considered necessary “to ensure that the agencies remain law-abiding and that the public perceives them as such.” A serious effort by parliament was called for, because “currently, it seems that the legal and organisational foundations of the two major agencies (ISI, IB) all rest on mere executive orders, and there is an urgent need for laying down a comprehensive statutory framework — perhaps a “Pakistan Secret Services Act.” The commission appended to its report the legal frameworks and measures to regulate the secret services adopted by Australia, the United States, the United Kingdom, Germany, Canada and Italy and the judicial oversight bodies created in several countries. On the basis of the international experience, the commission suggested forms of both, internal and external accountability, for the intelligence agencies.

The commission’s final recommendations that are worth repeating include the following:

• That in the light of our constitution, based as it is on democratic principles, the uncovering of truth before the public is very much in our national interest;
• that the press be made more law-abiding and accountable through the strengthening of institutions mandated by law to deal with legitimate grievances against it. (Incidentally the Press Council of Pakistan, one of the institutions cited by the commission, may soon be axed).
• that the balance between secrecy and accountability in the conduct of intelligence-gathering be appropriately readjusted, with the aim of restoring public confidence in all institutions of the state;
• that the more important agencies (ISI and IB) be made more law-abiding through legislation carefully outlining their respective mandates and roles, and that their interaction with the media be carefully institutionally streamlined and regularly documented;
• that all the agencies be made more accountable at three levels: within the agency and before the minister-in-charge, i.e. through internal administrative review; through a parliamentary committee responsible for oversight over their affairs and through a suitably enforced judicial forum, for redressal of grievances against them.

One wonders why the defenders of the faith have not called for purging this report of heretic observations. Maybe the reason is that this report merely makes recommendations to the government, and unlike a judgment of a superior court, its proposals are not enforceable.

However, those opposing any legislation to regulate the working of intelligence agencies do them a huge wrong. In the absence of a legal cover, these agencies cannot win public respect and all those working for these agencies will have their minds burdened, in addition to the strains caused by their arduous calling, by a feeling of guilt for working outside the law. This feeling can destroy the stability of the strongest possible minds.

The moral of the story is that we should stop putting Justice Faez Isa on the rack and start implementing the salutary recommendations of the 2011 commission.