Commission didn’t exonerate ISI of murder allegations

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ISLAMABAD: The Judicial Commission on Saleem Shahzad case had recommended the accountability of intelligence agencies through legislation noting that currently the ‘legal and organisational foundations of the two major agencies (ISI and IB) rest on mere executive orders.’ The commission stressed on ‘an urgent need for laying down a comprehensive statutory framework’ for them.

Terming it ‘high time’ to bring the agencies under legal framework, the commission had recommended their accountability at three levels: within the agency and before the minister-in-charge; before a parliamentary committee; and before a judicial forum. Defining the role of agencies, the commission said they must be kept at a distance from ‘press censorship, liaising with political parties and the conduct of foreign policy.’

The commission had recommended internal documentation and procedure of inquiry in order to investigate the allegations of misconduct by agency officials. “Without the relevant documentation, no investigation would have much chances of success and it would be hard to rule out the possibility of the agencies’ involvement in incidents like the murder of Saleem Shahzad,” the commission noted.

Highlighting the need for parliamentary oversight of the agencies, the commission said it will serve two purposes: (i) improving the efficiency of agencies; (ii) preventing excesses through oversight and ensuring public confidence in the agencies.

It further noted that in extreme cases where internal review as well as parliamentary review is not sufficient, the agencies may also be held accountable to a specially constituted judicial forum.

A special judicial oversight mechanism may be set up for dealing fairly and effectively with complaints against the agencies, whether emanating from the media or from other sectors of the society, the commission said. “While the forum should be of a general nature, particular importance should be given in this regard to the complaints of the press.”

The role of agencies had come under question. Like Hamid Mir, Saleem Shahzad had also conveyed threats to his life from the ISI and the commission had not absolved the agency of the allegations directing the police to investigate the names named by the slain journalist, Saleem.

Although, threats and acts of intimidation are denied by the ISI, the commission report noted, “Yet from the statements of the above named, the commission cannot hold that their understanding and perception about the threats etc. extended to them are misconceived, simply for the reason that it had been refuted by the ISI official.”

When so many senior and respected journalists have come forward to record their perception, noted the commission, that they found certain words, gestures and acts of ISI officials as intimidating and threatening, then it is hard to dismiss it lightly, “merely on account of a bald denial by ISI.”

“Therefore, from the overwhelming material available on the record, the commission is convinced that there are sufficient reasons to believe that the agencies, including ISI, have been using coercive and intimidating tactics in dealing with those journalists who antagonise the agency’s interest.”

Neither did the government act upon the commission’s recommendations nor did the police pursue the investigation into the Saleem Shahzad’s murder.

As far as the commission’s recommendations about legislation for intelligence agencies are concerned, it declared them ‘necessary to ensure that the agencies remain law-abiding and also that the public perceives them as such.’

This would require a serious effort from parliament, the report said. The commission report goes on: ‘In various countries of the world, intelligence agencies were first created under executive orders, but subsequently brought on a statutory footing to improve their level of accountability. It is high time we brought the same change in Pakistan.”

Whatever the details, the framework adopted for intelligence legislation must ensure constitutional standards of accountability.

The agencies can be held accountable at three levels: within the agency and before the minister-in-charge; before a parliamentary committee (and thus the parliament and the public); and before a judicial forum, said the report.

For improving the system of Internal Administrative Accountability for the agencies, the commission proposed statute should delineate, among other things, the purpose and object of various agencies.

Duties which fall beyond the competence of these agencies, such as press censorship, liaising with political parties and the conduct of foreign policy should be expressly excluded from their mandate. Given our current crisis, being explicit about these matters would be more than worth it, said the commission report.

The chain of command of the agencies should be clearly demarcated, the report added. The structure should be designed such that the minister-in-charge as well as the head of the agency is able to ensure internal administrative accountability. Therefore, in case of an alleged wrongdoing, the first level of inquiry should be from within the agencies. In this regard, it may be useful to set up an internal but independent office for review, such as a counsel general, an inspector general of intelligence (Australia) or auditor, whose job is to assist the minister-in-charge and/or the head of the agency in ensuring compliance with ministerial policy as well as with legal and constitutional limits, explains the commission report.

Emphasizing on the need for a more accountable work culture, the reports notes, the work-culture of the agencies may also need some change if oversight of any sort upon them, internal, parliamentary or judicial, is to be meaningful. In this regard, the proposed statute may require them to adopt by-laws which mandate their operatives to follow internationally-recognized Standard Operating Procedures (SOP).

The procedures should be defined in such a manner so as to improve the level of documentation, according to the report. In case of a complaint of misconduct, the relevant documentation should be handed over to the investigators for a proper inquiry. This change is absolutely necessary for increased accountability. Otherwise, without the relevant documentation, no investigation would have much chances of success and it would be hard to rule out the possibility of the agencies’ involvement in incidents like the murder of Saleem Shahzad.

For improving the system of democratic accountability for the agencies, the commission said they should also be made directly accountable to parliament. In this regard, parliament should consider creating bipartisan standing committees on intelligence in both houses of parliament. There are numerous such committees in parliaments around the world. The parliament may consider and deliberate upon various existing models of legislative accountability of the intelligence community to tailor the solution most appropriate for our context.

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.

For improving the system of judicial accountability for the agencies, the commission report said that in extreme cases where internal review as well as parliamentary review is not sufficient, the agencies may also be held accountable to a specially-constituted judicial forum.

A special judicial oversight mechanism may be set up for dealing fairly and effectively with complaints against the agencies, whether emanating from the press/media, as in this case, or from other sectors of society. While the forum should be of a general nature, particular importance should be given in this regard to the complaints of the press. For this purpose, it may be useful to create an office of human rights ombudsman, the commission recommended.

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