Guest Column | Judges Rule

Pakistan Supreme Court’s activism unnerves both the government and the army

Radhavinod RajuRadhavinod Raju

Recent developments in Pakistan are being watched keenly by security experts from around the globe. For the first time an authority, other than the serving army chief of Pakistan, has called the ISI to account for its deeds!

This happened when the Supreme Court of Pakistan, led by the intrepid Chief Justice Iftikar Muhammad Chaudhry, summoned the ISI to produce some persons allegedly held in their illegal custody. All pleas of the ISI’s counsel that some of them cannot be brought there due to health reasons fell on deaf ears. They were directed that no one was above the law, and all have to obey summons to appear before it, or face action! Eleven persons accused of attacking the General Headquarters of the army had been earlier acquitted, but had been picked up sometime in 2010 from Rawalpindi’s Adiala jail and allegedly kept in illegal detention by different agencies, including the ISI. It is not that this was the first time such illegal detentions have happened in Pakistan. But in this case, the Supreme Court took suo moto notice and summoned the Agencies to produce the detainees before the Court. Finally, seven of the 11 detainees were produced before the Court, 4 having died earlier, presumably under torture. The Apex court has called for all documents pertaining to their detention by the first week of March, and asked the ISI to explain the deaths of the four detainees.

These developments have taken place because of the way in which the Supreme Court has handled various issues, including those that pertain to corruption where President Asif Ali Zardari has claimed immunity under an executive order issued by former President Musharraf following an understanding with the late Benazir Bhutto, paving the way for her re-entry into Pakistan. The Apex Court has exhibited the highest standards of impartiality in dealing with these sensitive issues, and built a formidable reputation for itself. It will not be easy for any authority, civilian or the army, to ignore the Supreme Court’s directions anymore.

As against this, let us see how the present civilian government, elected through a democratic process, has handled the ISI and the Army, and how the Army has maintained its stranglehold over the civilian rulers, notwithstanding its poor record. The recent Memogate scandal readily gives enough examples of the manner in which the civilian government has handled the ISI-with kid gloves! The defence secretary of Pakistan, Lt Gen. Naeem Khalid Lodhi (retd), in response to the notice issued to him by the Supreme Court of that country in the Memogate scandal, replied that the ministry has no control over the ISI and the army in operational matters. The ISI chief Lt Gen. Shuja Ahmad Pasha, and the army chief, General Ashfaq Parvez Kayani had filed separate affidavits supporting the demand for a judicial enquiry into the Memogate scandal, a view that did not agree with the government’s stand that there was no need for a judicial probe into the affair as a Parliamentary probe had already been ordered by the government.

The Prime Minister of Pakistan is on record that all the three army generals, one retired and the other two on extension in service, had gone against the rules of business by not taking clearance of the government before filing their affidavits. He said this in an interview given to the Peoples’ Daily Online, when the army chief General Kayani was on an official visit to China. The Prime Minister has since sacked the defence secretary, Lt Gen. Lodhi, known to be a confidante of General Kayani. His replacement is a civilian officer, known to be close to the Prime Minister.

In response to the allegations, the army chief issued an unusually stern warning to Gilani saying his statements could have serious ramifications with potentially grievous consequences for the country. However, though there were rumours that the government was contemplating action against General Kayani and Lt Gen. Shuja Pasha, no action was taken against the army and the ISI chiefs. The ISI chief, Lt Gen. Shuja Pasha, is also a known confidante of the army chief. It appeared, however, that the civilian government was ready to confront the Army/ISI combine at long last.

Earlier, soon after assuming power in 2008, under pressure from the United States which was convinced that the ISI had assisted the Haqqani group to attack the Indian embassy, the civilian government made a feeble attempt to bring the ISI under civilian control though it came to nought as the order issued by the government had to be recalled post-haste. Similarly, under pressure of the British, Zardari had agreed to send ISI chief Lt Gen. Pasha to India in the background of the devastating Mumbai terror attacks to calm down tensions between the neighbours, and found himself similarly vetoed by Gen. Kayani. WikiLeak cables from the US embassy confirm this.

The best chance that the civilian government had to bring accountability in the working of the ISI was when the Americans sent in their Seals to Abbottabad in an unprecedented secret operation, violating Pakistan’s sovereignty in the course of locating and eliminating Osama bin Laden, the world’s most wanted and notorious terrorist. This huge chance was wasted by the civilian government when they backed the army and the ISI, with the Prime Minister, Yusuf Raza Gilani, during a visit to France immediately after the Abbottabad operation, blaming the entire world for failing to locate bin Laden! Osama was housed in a mansion close to the Pakistan Army’s prestigious Officers’ Training Academy in Kakul, which was about 800 yards away. Gilani, addressing the Pakistan Parliament, praised the contribution of the ISI and the army in the war on terror, and referred to the capture of high value al Qaeda terrorists like Faraj al Libbi and Khalid Sheikh Mohammad by the ISI. He repeated his accusations that it was a collective failure of the intelligence agencies of the world and referred to the response of the armed forces to the Abbottabad operation, which according to him was on expected lines! Gilani categorically affirmed the government’s confidence in the high command of the armed forces and the Inter Services Intelligence, and added that the ISI was indeed a national asset! In short, the Prime Minister bent backwards to support the army and the ISI for their failure which allowed bin Laden to stay within a few hundred yards of an important army establishment, and for the failure of the forces to prevent the Americans from mounting an operation deep into Pakistan without its knowledge, thereby violating their sovereignty.

For the first time, the ISI chief had to appear before Parliament in a closed door session, and explain the ISI’s side of the story. He is reported to have faced difficult questions and offered to resign for the collective failure. An imaginative and bold civilian leadership would have used the opportunity to bring in much needed reforms in the running of the army and the ISI. This they missed, by going overboard in supporting the army and the ISI. If the ‘memo’ of Ijaz, allegedly dictated by Hussain Haqqani, then Pakistan’s Ambassador to the United States is to be believed, the civilian government was terribly scarred that the Army would react to Abbottabad by seizing power, something which Zardari was keen to prevent, leading him to apply for American pressure on the army chief to desist from engineering a coup! Thereby Gilani simply missed the bus.

There were reports that the army was totally disinclined from going for a coup, but that they could still snatch power through the backdoor thanks to the Supreme Court. In the meanwhile, the Supreme Court had summoned the Prime Minister in a contempt case, over disobeying its instructions to address the Swiss government to reopen the graft cases against Zardari. Though the Prime Minister has stood firm in his view that Zardari has immunity from prosecution, if convicted in the contempt matter, he would certainly lose his premiership. If that happens, there could either be early elections this year, or someone else might replace Gilani so that the government gets its full term in office. By treating the Prime Minister and the army equally firmly, the Supreme Court has enhanced its prestige.

(The writer retired as the first chief of NIA. Earlier he was the additional director general of police, Jammu and Kashmir. He was also Vigilance Commissioner in Jammu & Kashmir)


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