Sometime in 2008, senior officials of Pakistan’s premier civilian intelligence agency, the Intelligence Bureau (IB), were asking themselves a basic question: should IB retain the power of arrest or forego it? The debate on the issue continued for a few months before it was concluded that the primary task of the agency was to gather actionable intelligence and that it should give up its powers of arrest; the police should handle arrests on behalf of IB.

This coincided with another internal exercise within IB to draft a law for providing legal basis to its working. “The idea was to put in some legal constraints, considering the human rights issues that had recently permeated the national discourse,” says a  former senior official of IB involved in the exercise. The draft law, for instance, called for bringing the pervasive telephone tapping by intelligence agencies under judicial check. “We proposed that telephone taping would be allowed only under a judicial order and not under an executive order,” he adds.

The time was ripe for such a change. A democratically-elected government had just taken office in Islamabad after nine years of military rule. The political elite had developed a near consensus – as reflected in the Charter of Democracy – to curtail the influence and powers of intelligence agencies. What further reinforced this atmosphere of change was that the civilian government appointed Shoaib Suddle as IB’s head, the first non-military man to hold the post in nearly two decades.

The draft law was to be shared with senior officials of the newly-formed government but that proved to be a non-starter. “[The draft] needed the approval of the president and the prime minister to be tabled before the parliament,” recounts an Islamabad-based retired official who was part of the exercise. “We discussed this with some senior officials of the government. They agreed with the basic idea of the draft but then did not take it seriously.”

After receiving a cold response from the government, IB bosses did not press any further. Apparently the idea of bringing the intelligence agency within the ambit of law did not appear to the government as a move in the right direction. “The main reason was lack of understanding because nobody in the government or the intelligence establishment has an inkling of how effective a check a legislative act can prove to be,” comments a former intelligence boss.

Then in July 2008, the Pakistan Peoples Party government decided to put the Inter-Services Intelligence (ISI) under the interior ministry, and issued an executive order placing it under the administrative, financial and operational control of the ministry. But intelligence officials point out that it was not a move aimed at ensuring that the agencies worked as per some law. “It indicated the government’s attempt to bring them under its political control,” says a former intelligence boss. The order was reversed within hours, the government said, to dispel the impression “that there were differences between the civilian government and the army.”

Legal experts are of the firm view that defining the jurisdiction of intelligence agencies through a legislative act is a much wider issue than simply putting them under one or the other ministry. “Many problems in the present functioning of the spy agencies arose simply because there is no law defining their jurisdiction,” opines a legal expert. But the withdrawal of the order to bring the agencies under civilian control strengthened the impression that the government had failed to depart from the tradition of conducting ‘intelligence business’ without a law that could define the jurisdiction of the agencies concerned.

Has anyone seen the executive orders that created the intelligence agencies and that govern their working? “Nobody has,” says Dr Hasan-Askari Rizvi, a historian of civil-military relations in Pakistan. In the absence of any information about them, even the most ardent scholars of Pakistan’s political and security history are only making guesses on what they could be.

Indeed, Pakistan is one of the few democracies in the world where intelligence agencies enjoy the ignominious distinction of functioning without any legal document supporting their creation or functioning. No less a person than the highest law officer of the state, Attorney-General Maulvi Anwarul Haq, informed the Supreme Court in November 2010 that there exists no such legal instrument.

But over the years intelligence agencies have invoked many laws to justify rounding up, investigating and imprisoning people they deem anti-state elements. These include the Security of Pakistan Act 1952, Pakistan Army Act 1952, Defence of Pakistan Act and Prevention of Anti-National Activities Act 1972. None of these laws, however, lays down what powers the spy agencies have and how best should they use those powers. “A law to define the jurisdiction of the intelligence services is missing from the statute books,” says Justice (retd) Tariq Mehmood, a senior lawyer, former high court judge and a human rights campaigner.

In the absence of a law it becomes easy for the rulers to arbitrarily expand the role of the agencies into domestic politics without having to bother about any legal authorisation. For instance, “the ISI was created for external intelligence but General Ziaul Haq used it for domestic intelligence-gathering. Similarly, General (retd) Perzez Musharraf used the Military Intelligence for intelligence gathering on domestic politics,” says Dr Rizvi.

The lack of any legal or parliamentary oversight for the intelligence agencies creates problems of governance that in the past have developed into full-blown crises. For instance, questions about the loyalties of Pakistan’s premier intelligence agency, ISI, have remained unanswered over the years and on more than one occasion have led to tensions between the civilian government and the military.

At least twice in the recent past has this flared up with disastrous consequences for democracy in Pakistan. When Benazir Bhutto appointed a retired army officer, Lieutenant-General (retd) Shamsud Rahman Kallu, as ISI chief during her first tenure as prime minister, the decision led to tensions between her and the then Chief of the Army Staff General Aslam Beg. Similarly, Lieutenant-General Ziauddin Butt, who headed ISI during Nawaz Sharif’s second term in power, was one of the reasons why tensions between the prime minister and the army chief started and persisted, culminating in Sharif’s removal from power.

Dr Rizvi believes that creating a law for the agencies will also help settle the question of who is in charge of them and thereby reduce the likelihood of tensions over appointments in them. “If you introduce a law then you will have to define whether [ISI] is a civilian institution or a military institution,” he says. Once defined, this will also decide who can appoint whom, he adds.

But Dr Rizvi also points out that there are understandable reasons for the lack of interest on the part of the incumbent government to curtail the influence and power of intelligence agencies. “The civilian governments do not want to control ISI [and other intelligence agencies] because they think it will annoy the army.”

Jutsice (retd) Mehmood agrees: “The debate about the legality of the intelligence agencies is not part of the national discourse because generally there is a sense of fear prevalent in the society [about their powers].”

Some senior bureaucrats with extensive experience of intelligence services are, therefore, of the opinion that a legislative act will hardly prove an effective check on the functioning of the spy agencies. “A legislative act may be necessary but it is hardly sufficient, given the immense powers the intelligence agencies enjoy,” comments one of them.

There is also no dearth of voices opposing any move to impose legal constraints on the functioning of intelligence agencies. Their logic is simple: the very nature of intelligence gathering militates against the concept of imposing legal constraints on the functioning of intelligence organisations. “The nature of their work is such that they have to work in deviation of the law and they have to keep it secret as well,” says former ISI chief General (retd) Hamid Gul. “This is the same all over the world and there is nothing unusual and new about it.”

A former head of IB, however, is not convinced. “The question we need to ask ourselves is what exactly our intelligence agencies are doing for which they want legal exception,” he says. To find that out, we need to first have the rules and regulations before being able to decide what exceptions could be allowed and under what circumstances.