Geo TV recently aired a discussion about the role and accountability of the ISI. The participants were two former Directors-General of the ISI and PPP Senator Farhatullah Babar. Mr Babar argued that the ISI has always had a political cell, that it has consistently interfered in domestic politics and that it is not amenable to regulation by, or accountability to, civilian leaders or institutions. He wants a select committee of parliament to oversee the ISI, like other intelligence agencies in democratic countries.
But the truth of the matter is that the ISI sees itself as a military organization governed by military law. Like the army, it is distinctly averse to civilian regulation even though, like the COAS and chairman of the joint chiefs of staff committee, the DG-ISI is hired and fired by the prime minister, unlike the head of the Military Intelligence who is hired and fired by the army chief. So the DG-ISI straddles two jurisdictions and two bosses, the COAS who employs and promotes him and the PM who appoints and disappoints him.
By way of illustration of the murky legal status of the ISI, Mr Babar referred to the “Najam Sethi case” in 1999. He argued that after Mr Sethi, a civilian, disappeared into the folds of the agencies, a judge of the Lahore High Court flatly rejected the writ filed by Mr Sethi’s wife because “the court had no jurisdiction over a military institution”. Mr Babar also referred to the “Asghar Khan case” whereby the former air force chief has alleged before the supreme court of Pakistan that the ISI had illegally interfered in politics in 1990-91. But the case has been gathering dust for over a decade. Judges who have taken oaths under military governments and sanctioned coups and constitutional orders decreed by army chiefs are hardly likely to frown on political interference by the military.
The “Najam Sethi case” sheds fascinating light on the complex relationship between an elected PM and COAS, the PM and the DG-ISI, and the COAS and the DG-ISI. It also shows the twilight zone in which the law, constitution and courts function in civil-military matters.
In May 1999, Mr Nawaz Sharif ordered his handpicked DG-ISI, General Ziauddin, to arrest and court martial me for “treason” because I had relentlessly exposed Mr Sharif’s corruption and enraged him. Accordingly, a charge of “treason” was drummed up on the basis of a distorted version of a speech that I had given in India. The army chief, General Pervez Musharraf, was “suitably” briefed of the impending ISI action.
I was picked and roughed up by the provincial police under Punjab chief minister Shahbaz Sharif. Senior officials of the Intelligence Bureau (a civilian institution under the federal government and PM) supervised the operation. I was later handed over to the ISI, a military institution, which was tasked with court martialing me. While in custody, Major-General Ghulam Ahmed (“Gen GA”), head of the internal wing of the ISI, investigated the charges against me, found them to be politically trumped up and told the DG-ISI and COAS as much.
Some days later, the case took an unexpected twist. Brigadier Rashid Qureshi, then DG-ISPR, a serving military officer of a military institution, said publicly that “the army had nothing to do with the Najam Sethi case” and that “Najam Sethi was not in the custody of the army”. So the question now arose: if the army had nothing to do with the case and if Mr Sethi wasn’t in its custody, what was he doing in the custody of the ISI, a military institution under the army according to the LHC?
My lawyers agitated this issue before the Supreme Court. The Attorney-General fumbled and fumed. The CJ advised him to drop the case and set me free, implying that if he didn’t he would open a Pandora’s Box of thorny legal, constitutional and military issues. The government complied with the advice but transferred me from ISI custody to police custody and immediately lodged a case against me under the anti-terrorism laws. Fortunately, one of the justices of the SC bench, Justice Mamun Qazi, had added a note to the effect that since the case appeared dubious I was not to be arrested or detained in any other case by the government without the knowledge and permission of the SC. In the event, the government was forced to drop the anti-terrorism case against me and set me free. When the BBC asked me for comment, I explained the irony of the situation: an elected and “democratic” government had sought to crucify me while the military and ISI had bailed me out.
But the essential questions remain. What if the ISPR under Gen Musharraf had not publicly disowned the Najam Sethi case? What if Gen Ghulam Ahmad hadn’t shrugged off political pressure to nail me? What if Justice Qazi, an upright Sindhi judge, had not appended his critical note? What if the ISI had been bent on keeping me in its clutches? And so on.
Mr Farhatullah Babar is right. No true civilian democracy can afford to leave such civil-military questions unresolved.