Talha Mansoor discusses a significant development
In a Legal Cover Given To ISI rare display of political compromise the coalition dispensation managing the affairs of the country brought to fore a sagacious proposal to provide, ISI, the premier intelligence agency of the country thereby opening the doors for its eventual incorporation within the jurisdictional remit of the parliament. This shift signifies a significant departure from the prevailing practice of covertly entertaining the advice tendered by the ISI in respect of public affairs that it also provided under the cloak of secrecy at times undermining the purpose and intention of such an exercise. Such a measure was due since long and it has now been adopted after due care and a sense of positivity. This step will prevent the hush-hush manner prevalent in judging the conduct of public officers and would bring transparency to the process.
The government brought to fore this development by stating that the Prime Minister has concurred to notify Directorate General Inter-Services Intel¬ligence (ISI) as the Special Vetting Agency (SVA) for verification and screening of all Public Office Holders belonging to officers category. In this context it is pointed out that sub-section 1 of section 25 of the Civil Servants Act as well as SRO 120 aimed at empowering the prime minister to amend or make rules for the civil bureaucracy. It is therefore understood that by issuing the notification, the government has given legal cover to a practice that had already been in place but had not been formalised as part of protocol.
It is a widely known fact that the government receives secret reports both from the IB, civilian intelligence outfit and ISI containing the low-down about civil servants before they are posted on important assignments but the official recognition is accorded only to the IB input whereas the views of the ISI are unofficially entertained although in reality they carry more weight. In this respect it is pointed out that such views are heavily depended upon by the Central Selection Board (CSB) at the time of promotion of bureaucrats. The practice has continued even though superior courts had, in a few cases in the past, discarded such intelligence reports while noting that there was no legal provision in the Civil Servants Act that mandated agency screening of civil servants. Though it is reported that the IB will continue sending reports but after providing legal cover to ISI reports, they could also be used in courts as a valid legal documents.
This process of obtaining secret counsel is followed in all aspects of government functions and most decisions are taken on the basis of reports forwarded by the intelligence network. They have become an essential part of governance in the country and it has become increasingly difficult to act against the advice so proffered. It is worthwhile to point out that that clearance from intelligence agencies is not only an integral part of the promotion process for civil servants but it also plays a key role in the appointment of judges to the superior judiciary. The Judicial Commission of Pakistan, headed by the chief justice, considers intelligence reports at the time of the confirmation and elevation of a Supreme Court judge.
Like any other action taken by the government, this particular action has its own critics who point out that conceding the right to the ISI to screen civil servants tantamounts to ceding civilian space to the military-dominated ISI. They are also of the view that assigning the additional task before their induction, appointments, postings and promotions would overburden the ISI that is already heavily engaged in keeping an eye on internal terrorism and activities on the eastern and western borders. They also disagree with the notion on the grounds that it smacks of displaying lack of confidence in the civilian apparatus of the state along with blurring the distinction between the civil and military bureaucracy.
The critics also observe that in the presence of comprehensive laws such as the Constitution as well as the Civil Servants Act, 1973, there is no need to subject the civil servants to additional screening as it would result in impeding their performance. In addition they point out that the courts have in some judgements disregarded intelligence reports in such matters disputing the veracity and efficacy of such a practice. Besides, they add that civil servants are already working under the pressure of the NAB law that has badly circumscribed their ability to work. The Human Rights Commission of Pakistan (HRCP) also expressed concern over the government’s decision by stating that even if this practice was already in place, it goes against democratic norms. The role of the military in civilian affairs needs to recede if Pakistan is to move forward as a democracy.
Some observers, however, opined that though the prime minister has the power to amend or make rules for the bureaucracy, it would have been better if the Establishment Division would have issued a Statutory Regulatory Order (SRO) to amend the Appointments, Promotions and Transfer (APT) Rules governing the civil bureaucracy if it wanted to give the ISI formal charge of the vetting process. They reiterate that unless the rules are amended, a mere notification will not legitimise the agency’s report and it cannot be used as a valid document during judicial scrutiny. The issue is surely going to elicit more comments and it is yet to be seen how the ISI responds to this development. TW