Last week I wrote about civil-mil relations from a different angle. The dual (hybrid) system that has functioned since the ascension to power of Imran Khan had been different till now from the dual system in which Nawaz Sharif had operated because this system had been (with some exceptions) working smoothly. I likened the new tensions to the arrival in Valhalla of the serpent.
This week I want to examine the issue from a different perspective: what law governs the existence and functioning of the ISI. The procedure of appointment of DGI seemed to me — still does — secondary to that basic question. Once we have determined the law that birthed the agency and — presumably — also guides its functioning, we can move on to figuring out who is authorised to choose and appoint the agency’s DG, the top slot.
I thought this inquiry would be easy. I couldn’t have been more wrong. My conversations with a number of former officers, mostly three-star and at least one two-star, left me frustrated. Two of them referred to a 1951 Executive Order by the Prime Minister’s Office as the legal instrument that legitimates the existence of the ISI. Two others referred to the 1976 White Paper on Higher Defence Organisation (HDO) that created the Joint Chiefs of Staff Committee and also reorganised the ISI, ISPR, Engineer-in-Chief etc. However, it is clear that the ISI existed before HDO and while HDO might have contributed to the ISI’s restructuring, it could not be the instrument for legitimating an agency that had existed decades prior to the HDO itself.
Hein Kiessling’s book on the ISI has no discussion of any legal instrument that points to the agency’s formation apart from crediting Maj-Gen Walter Joseph Cawthorne, an Australian officer who opted to serve in the Pakistan Army after Partition, with developing “the blueprint for the structure and functions of ISI, as of several other interservices organizations.”
While many analysts have accused the late Prime Minister Zulfikar Ali Bhutto of creating the agency’s internal wing, Bhutto’s own statement (If I Am Assassinated) makes it clear that both the ISI and the DIB were used for political machinations by President Ayub Khan as well as General Yahya Khan. Bhutto also mentioned Lt-Gen Ghulam Jilani Khan, pointing out that Jilani was DGI before “I became President of Pakistan on 20th December 1971.” Bhutto had some scathing comments regarding Jilani and the regime which he illustrated with the anecdote about the advice Mickey Mouse’s father gave him when Mickey was getting married. It’s hilarious but out of the scope of this article.
What we do know, and which two of my interlocutors conceded, is that General Zia ul Haq did extensively use the ISI’s internal wing for political machinations and intimidation. Meanwhile, the Soviet invasion of Afghanistan provided space to the agency through extensive interaction with American CIA and Britain’s MI6 to grow exponentially. But while it was a good thing for the agency to increase its capacity for gathering, collating and analysing external intelligence, its enhanced capabilities also supported what it had been doing internally but could now do even more “efficiently”.
At least one interlocutor pointed to the fact that the normal practice was to either get an officer from outside to lead the agency or someone from MI with intel background. No one from the internal “C” wing was promoted as DGI until LTG Zaheer ul Islam. LTG Faiz Hameed is the second example of a DG-C promoted and placed as DGI. The interlocutor considered this a bad move.
General Zia ul Haq did extensively use the ISI’s internal wing for political machinations and intimidation. Meanwhile, the Soviet invasion of Afghanistan provided space to the agency through extensive interaction with American CIA and Britain’s MI6 to grow exponentially
During the Asghar Khan case, the Supreme Court of Pakistan wanted to know where the ISI drew its mandate from. The Ministry of Defence in its reply referred to the 1951 Executive Order. As per Salman Akram Raja, an eminent lawyer who was also Air Marshal Khan’s counsel, the MoD never produced the executive order in court. In other words, no one seems to have read this order except one interlocutor who was involved in the restructuring of the agency at one point. However, he did not remember its contents.
Former army chief, General Aslam Beg — not exactly an officer one can trust — testified in June 1997 before the SC stating: “ISI is an Inter Services Intelligence organisation created by the government of Pakistan and had been directly answerable/responsible to the three services through JCSC till 1975. In 1975, the then Prime Minister of Pakistan through an executive order, created a political cell within the organisation of the ISI, and by virtue of this change in the working of the ISI it came directly under the control of the Chief Executive, particularly on political matters, and for all the security matters concerning the armed forces, ISI reported to Joint Chiefs of Staff Committee.”
The problem with this statement is that the JCSC came into being in 1976 and Bhutto appointed the first CJCSC in March that year. Also, as noted above, Bhutto made a convincing case about how the ISI and DIB were used by his predecessors in his written response to the junta’s White Paper against his years in power.
In a nutshell then, until someone can actually make the 1951 Executive Order public, which can then be read in conjunction with the 1976 White Paper (HDO), everything that’s being written is in the air and speculative. But let’s park that thought for a while and get to the issue of the appointment of DGI: who does it?
This, again, is a grey zone, notwithstanding assertions by the current government’s spokesperson that it is constitutionally the prerogative of the PM. To the best of my knowledge as a layperson, there’s nothing in the Constitution, whether in articles pertaining to the armed forces or the Federal Government that indicate any such provision. What we do have are precedents: there are at least three where two PM’s — Benazir Bhutto and Nawaz Sharif — chose and appointed persons as the DGI that weren’t the choice of army chiefs at the time: former LTG Shamsur Rehman Kallu; LTG Javed Nasir and LTG Ziauddin Butt.
There are other occasions when the army chief took a name to the PM (or President) and got it approved. A good example of this is the appointment of former LTG Ahmed Shuja Pasha, which General Ashfaq Kayani managed in consultation with former President Asif Zardari. There are other times when army chiefs also acted as Chief Executives. They didn’t have to consult anyone to make appointments to any post, not just to fill the top slot at ISI.
There was at least one occasion when former PM Sharif wanted to also be consulted in the placement of Corps Commanders. That was firmly opposed by late COAS General Asif Nawaz Janjua.
Let me round this off then. As I said above, this is a crisis I am happy about if it leads to better clarity about what legitimates the existence and functioning of the ISI. It is an agency whose internal role is now a matter of record (Asghar Khan case) and has drawn much criticism. It has also become a banyan tree under whose shadow other intelligence agencies have withered. This episode should, therefore, not just be about the appointment of DGI, but should provide the occasion for a deeper dive into how the agency operates internally and what reforms are required to bring it in the ambit of law and the Constitution.
There is also a need to look more broadly into how the business of state is often conducted through precedents (mostly bad) rather than through clear legal SOPs. It is precisely this practice that ties us into knots and creates problems.