"The missing persons are really not the missing persons; missing persons are those who have been killed or silenced by these persons who are taken into custody by the Intelliegence Agencies. The prosecution of so called missing persons becomes impossible because no one is prepared to risk his/her life by standing against the so called missing persons. This is the responsibility of the government where it's failing is a criminal neglect." Raja Mujtaba

By Brig Samson S Sharaf

Recently, two judicial events have aspersed on the intelligence and counter intelligence efforts of Pakistan despite the fact that the issue at hand is the failure or complicity of the executive to prosecute criminals with credible evidence. Thousands of accused including hardened criminals charged with offences against the state were released by a Provincial Court. The Supreme Court of Pakistan remarked on Balochistan that the entire state machinery including the Executive, Frontier Corp and Intelligence had failed and that there was a constitutional breakdown in the province. True, because if the legislature cannot enact appropriate laws and the executive is inefficient or fallible, breakdown of the rule of law is a foregone conclusion.

These judgements and remarks demonstrate the transparency of Pakistani jurisprudence to uphold human and fundamental rights. It can be argued that this is a serious blow to the intelligence and counter intelligence efforts operating in most hostile and opaque environments. It is a tragedy that the lack of political will and abundance of expediency renders the unnoticed effort counterproductive. With relation to the closed world of intelligence operations, it also challenges the inherent extra-constitutional sovereign authority under a higher law of self-preservation not subject to normal judicial review.  Most, it exposes the vulnerability and efficiency of the investigators and prosecution.

  Media Manners

These events do not indicate outlawry, yet create a perception that  the intelligence and law enforcement agencies of Pakistan are not subject to laws and authority of judges; and that sinister intelligence and enforcement officials operate beyond the law's reach within a space of an operational extra judicial mechanism. Most governments around the world invoke special legislations to deal with the issue ensuring that there remains in place credible legislative and judicial oversight.

The confluence of three Asias in the North and North West as a aggressively contested hub makes Pakistan vulnerable to intense and hostile intelligence activities. US and NATO occupation of the soft Russian and Chinese underbelly, the Saudi-Iranian proxies resulting in sectarianism, the US-Israel efforts to checkmate Iran, the Afghan Taliban, emergence of foreign funded TTP, US-Israel-Indian and ex KGB involvement in destabilising Balochistan through sub nationalist militancy and ethnic cleansing are some of the effects of these undercurrents and cause of Pakistan’s rapid descent to anarchy. In this maze of intertwined riddles and hostility, Pakistan’s intelligence and enforcement agencies toil to track, trail and uncover the enemies. In face of these hostile covert operations, Pakistan’s counter intelligence operations need unstinted support from the state legislature and executive. The courts can only do as much as what is brought before them under the law.

For a common man, such operations are shrouded in mystery and therefore speculative and fanciful.

Pakistan’s intelligence operations can be categorised as, first, intelligence and information relating to the capabilities, intentions, or activities of foreign governments or elements, foreign organizations, foreign persons and their trail inside Pakistan. These are conducted and coordinated at the highest levels of the government, involving the Foreign Office, Ministry of Interior, Provincial Home Departments and the intelligence community under parliamentary oversight.

  Jinnah’s Pakistan

This leads to the second i.e. counterintelligence and information collected and collated to protect against espionage, hostile intelligence activities, sabotage, assassinations conducted by or on behalf of foreign governments or elements, foreign organizations like security services, foreign funded NGO’s, and terrorist activities through local militias influenced as such.

With relation to militancy inside Pakistan, separatist sentiments in Balochistan and undercover efforts to spread ethno nationalism is a nightmarish function of the intelligence and enforcement arms. The manifestation of this war in public eye is missing persons, extra judicial killings, body bags, corpses with torture marks, abductions, shooting sprees, ethnic and sectarian cleansing and selective/targeted assassinations of leadership. Gone unnoticed are hundreds of national, provincial and nationalist leaders who have been assassinated including Mohatrma Benazir Bhutto. Many times, despite compelling circumstantial evidence, the inability of the investigators to make a credible case allows these criminals to go scot free and resume anti state activities.

Covert action in Pakistan is also a function of intelligence most notably carried out by USA, UK, India, Mossad, European Union, Iran, Afghanistan, Saudi Arabia and even Oman. A hostile activity to influence political, economic, or military conditions and to shape the environment for political objectives. This is a covert war and a conflict of varying intensity that Pakistan faces each day. Counter Intelligence, counter insurgency, counter terrorism and selective raids through law enforcement are the means to combat this menace.

As the instances above indicate, there remains wanting an element of oversight to secure Pakistan’s interests. This means, a system of inherent accountability of the executive to have their actions reviewed, sometimes in advance, by an impartial group. In democracy, the legislature is the classic model that enforces its unlimited writ (policy related) through parliamentary committees. Judicial oversight limits itself to legal questions. In developed democracies, a selected judicial cadre is co-opted with twin objectives to deals with questions of law related to security and surrogates for public. Under the ‘political question doctrine’, judges invariably avoid jurisdiction over intelligence controversies, allowing resolution of national security disputes to the government.

  I am sorry, O Prophet…

In Pakistan, the continuing standoff between the Judiciary and the so called Parliamentary Democracy (Executive and Legislature overlap) is taking its toll on the counter intelligence, counter insurgency and counter terrorism operations. Under the NRO dispensation, the government is hell bent in running the affairs of the state as minions to shaping the environment, while the Judiciary in the absence of checks and balances, is ever active to overarch beyond the ‘question of law’ and ‘political question doctrine’. The situation is bad news for the security concerns of Pakistan fighting a war on multiple fronts. These fronts like terrorism, sectarianism, sub nationalism, economic, socio-economic, systemic corruption, bankruptcy of state institutions, law and order, and energy crises are over and above the oversight disconnect described in this article.

This is a lamentable tale of how a state in crises must not handle its affairs. Political jugglery retorted by judgements, judicial statements and constitutional failure reinforce the international perception of Pakistan being a failing state; a country where laws can be circumvented through deficient prosecution; where hardened criminals can go free with impunity; and where ruling politicians are involved in extortion, murder and ransom. This also provides juicy fodder to a lobby of US Congressmen to argue that Balochistan is a victim of extreme atrocities and human right violations, the most serious challenge to the federation.

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