Feigned national interest

The writer is a lawyer based in Islamabad.
With the Asghar Khan case finally before the Supreme Court, the unscripted baleful role of khakis as guardians and saviours of national interest and national security must decisively be put to rest. If Pakistan is to continue and prosper as a constitutional democracy it has no room for a supra-constitutional and opaque role for its army and army-led intelligence agencies. So pronounced is the sense of jingoism that some khakis wear on their sleeve that one of the judges of the Supreme Court was constrained to observe during the missing persons’ case hearing that it is not just members of the armed forces that are loyal to the country, others including judges are too.
The larger conversation that we need to have around the Asghar Khan case is regarding the desirability of unadulterated rule of law, institutional accountability and restraining exercise of power devoid of legal authority.
There can be two ways of approaching the Asghar Khan case. The narrower one would be to limit proceedings to the actions of individuals involved – the khakis aided by civil servants who conjured up the IJI and raised a slush fund to enable this rag-tag coalition to form government and the politicians who accepted the ISI largesse – and allow the justice system to slap penalties on those caught debasing and subverting the democratic process. But the court could also take a holistic view and cast a wider net. Instead of turning into scapegoats the unlucky few caught with their pants down, it could exercise its inquisitorial powers under Article 184(3) of the Constitution to unravel the institutional arrangements and power structures that transform our army chiefs and DGs ISI into demigods, equipping them with the power to rise above the law, patronise, coerce and cajole politicians and make citizens disappear.
If the Asghar Khan case is reduced to punishing a few retired khakis and ordering the Election Commission to investigate whether or not the named politicians accepted the ISI funds, we will lose a valuable opportunity to understand and address our odious civil-military imbalance that remains the paramount threat to democracy, constitutionalism and fundamental rights in this country.
We must scrutinise the institutional structures, practices and ethos of khakis that nurture the belief reflected in their actions that they are not subject to the constitutional arrangement of checks and balances applicable to civilian public office holders. And we must also initiate a cleansing of our electoral system to ensure that elections provide a level playing field, money raised by means largely foul is not the ultimate guarantor of securing public mandate and expense limitation provisions within our electoral laws are not dead letter.
Without opting for the wider approach we’ll have solved nothing. Punishing Generals Beg and Durrani will not make the ISI slush fund disappear or lead to suspension of the levers of power used to intimidate or entice politicians, bureaucrats, judges and journalists, and breach the fundamental rights of ordinary citizen with impunity. We must not pretend that cultivating and assembling the IJI might have been an isolated event in our history where the khakis opted to create and execute a political game plan for the country in exceptional circumstances. And it will certainly not be the last unless the judiciary, the executive, the legislature and the society at large are all willing to confront the ugly truth and take corrective measures to end the cat and mouse game between the khakis and the civvies that continues to hold our country hostage.
While the Supreme Court was adjudicating Chief Justice Iftikhar Chaudhry’s suspension case in 2007, it came on record that the chambers, houses and telephones of the apex court judges were being tapped. The court ordered the director general of the IB to end this infringement of the judges’ privacy but not the DG ISI or MI, even though it is common knowledge that the ISI is most proficient with such activities. Senior police officers acknowledge in hushed conversations that the ISI is loath to allow civilian law-enforcement agencies to acquire phone surveillance systems that could enhance the performance of these agencies and make them independent of the ISI. They are also at a loss for words when asked under what legal authority are suspects, detained at police stations, handed over to ISI operatives? Reportedly all cell phone companies have established monitoring rooms to enable the ISI to tap cell phones. Does legal mandate back such surveillance?
There are nameless articles presenting the views of khaki-led agencies that get published in our newspapers daily. There are other articles critical of the khakis that get held up. What are the compulsions that force newspaper editors to succumb to this form of censorship? It took the Saleem Shahzad murder for journalists to exchange notes and realise that the practice of being summoned to Abpara for a ‘briefing’ was widespread. Is it fear or considerations of favours that require one to stay in the good graces of khakis? Have we all resigned to the reality that khaki-led agencies exercise power without authority and we are fine with them continuing to do so? Is it because we have skeletons in our closet that we fear will be dragged out for public viewing if we cross these omnipotent agencies? Or is it because we fear being labelled CIA and RAW agents if we question the khaki-defined notions of national security and national interest?
It is by castigating civilians as ‘the other’ that khakis have created a false divide in the polity. They must realise now that given the advent of time and technology and the evolving matrix of power, the traditional notions of khaki institutional interest and autonomy are going to continually pit them against civilian institutions and the society in general. The missing persons’ issue is a case in point. But if the khaki response to this case or General Asad Durrani’s brief statement in court – that distribution of the ISI slush fund was his personal act – are any indications, our country’s chequered history, the lessons from the Musharraf era, and human rights transgressions and security failures in 2011 hardly seem to have provoked self-appraisal amongst the khakis. The dominant thinking still seems to be that critics are a bunch of miscreants out to malign this hallowed institution that remains the saviour of the people of Pakistan.
It is thus important that the Asghar Khan case leads to a wider disclosure of facts. Such disclosure need not be public. But those at the helm of the executive and the judiciary must find out what happened to the remaining money from the slush fund that was ‘invested’? What use has it been put to since 1990-91? Does the ISI have autonomous funding sources that even the country’s chief executive is unaware of? For the Asghar Khan case to serve a useful purpose it will not be enough for the Supreme Court to reiterate the settled legal principle that acting on an unlawful command is itself an unlawful act. Punishing a few generals, though unprecedented, will neither undo a past wrong nor be an effective deterrent for future army chiefs and DGs ISI. So long as the army and the ISI continue to exercise power not backed by legal authority and are not subject to external executive, legislative and judicial checks, abuse of power will continue unabated.
A purposive ruling in the Asghar Khan case will reinforce the need to enact legislation to (i) vest legal authority in the ISI to function as an effective intelligence agency while subjecting it to potent checks (as also recommended in the Saleem Shahzad Commission Report), (ii) erase the ouster clause in the Army Act to afford constitutional due process guarantees to our soldiers, and (iii) amend Articles 8 and 199 of the Constitution to bring khakis within the framework of our fundamental law.

Email: sattar@post.harvard.edu