ISLAMABAD: The Supreme Court highlighted on Thursday a thorny issue when it asked about laws that governed the country’s spy agencies, but was informed by none other than the chief law officer that there were none. “Is there any law governing intelligence agencies,” wondered Chief Justice Iftikhar Mohammad Chaudhry, the head of a three-judge bench hearing a joint petition filed by Attiqur Rehman and others against the alleged kidnapping of Dr Niaz Ahmed, Mazharul Haq, Shafiqur Rehman, Mohammad Aamir, Abdul Majid, Abdul Basit, Abdul Saboor, Shafique Ahmed, Said Arab, Gul Roze and Tehseenullah from Adiyala jail in June after their acquittal on terrorism charges.
The court raised the question while referring to a reply submitted on Wednesday by Attorney General Maulvi Anwarul Haq on behalf of two premier intelligence agencies — Inter-Services Intelligence and the Military Intelligence.
In their brief reply, the agencies denied having custody of the 11 missing prisoners and said that an office could not be sued because the proper party in such matters was always the federation through the secretary of the ministry concerned.
What displeased the court was that the statement was not even signed by heads of the spy agencies. “Do they consider themselves above the Constitution and the law,” the chief justice inquired.
“You (attorney general) are claiming immunity by saying that notices could not be issued to these offices (intelligence agencies),” the chief justice said. He was informed that under Section 79 of the Pakistan Penal Code (Act done by a person justified or by mistake of fact believing himself justified by law) notices could not be issued to these departments.
“You have to study it thoroughly because you have raised a vital question and that notices to the intelligence agencies were issued under Article 185(3) of the Constitution and the Supreme Court Rules 1980,” the chief justice observed.
“The PPC was a subordinate law to the Constitution and this court is ruled by the Constitution.”
The CJ observed that the AG had not cited any provision or law, article or statute governing the affairs of these agencies. “Your assistance will be of great importance in case we decide the matter,” the chief justice said, adding that the court could deliver a verdict if he wanted, but he should first ponder over the matter again.
The AG conceded that there were no rules or laws to manage these agencies. “I will not mince my words and will make it clear (by asking) if you want to create confrontation among institutions which you have done then go ahead,” Justice Khalilur Rehman Ramday said.
“Have you realised implications? You should be very cautious as the chief law officer of this court and spokesman for the federation.”
Justice Ramday said it was not in the interest of the state to put institutions on a war path, adding that it was a duty of the state to resolve the matter. Being part of the state it was “our duty to find out the missing prisoners”.
The attorney general said he had only referred to a procedural matter and had not disputed the court’s jurisdiction.
“But what can I say if the court is going by the media perception,” he said, adding that neither had he raised the question of jurisdiction nor pleaded immunity (for the intelligence agencies).
“The objection raised has no merit with the case,” the AG said, adding that if the court wanted to withdraw the statement he was ready to do so.
The chief justice said that the AG should appreciate the fact that the court was handling the matter very carefully. “If we deliver a judgment it will open a Pandora’s box.”
The court ordered the district coordination officer, commissioner and the Punjab home secretary to submit their replies.
Then DCO Imdadullah Wassal and home secretary Shahid Khan had issued detention orders even after the Lahore High Court upheld a trial court’s decision to acquit the suspects in cases of a rocket attack on the Pakistan Aeronautical Complex in Kamra, firing of anti-aircraft shots at a plane carrying former President Pervez Musharraf and a suicide attack on a bus of an intelligence agency in Rawalpindi and at the main entrance of the GHQ.