The ostensibly visible presence of external threat in the initial years of Pakistan had created enough space for intelligence agencies to work above the law (See “Revealing the Secret”). “As long as you needed an intelligence agency to meet the intelligence requirement of the army and to meet the requirements of guarding against external security threats, you did not need a law,” says Justice (retd) Tariq Mehmood, also a senior lawyer and human rights activist.

The state used external threat as a powerful tool to silence any criticism of the functioning of intelligence agencies. Legal and intelligence experts, however, point out that the criticism of the agencies exists not because of their activities to neutralise foreign threats but due to their constant meddling in the country’s internal affairs. “As long as they were dealing with external intelligence, it was fine. The controversy started when they expanded their role into domestic politics,” says Dr Hasan-Askari Rizvi, an analyst based in Lahore.

While many civilian critics blame Zulfikar Ali Bhutto for setting the precedent of agencies interfering in domestic politics, a former intelligence chief tells the Herald it was more so during the military regime of General Ziaul Haq. War in Afghanistan in 1970s-80s, in which Zia and his American and Saudi backers were deeply involved, “changed the nature of intelligence gathering in Pakistan,” he says. Foreign funding, an extended network of contacts across Pakistan to mobilise supports for Afghan war, and an eminent role in Afghanistan, allowed the Inter-Services Intelligence (ISI) to increase its strength, powers and functions phenomenally, says Dr Rizvi. “All this together allowed the intelligence establishment to expand its role into domestic politics,” he adds.

Until then the Intelligence Bureau (IB) and Military Intelligence (MI) were the main intelligence-gathering institutions, in civilian and military spheres respectively. But during the Zia era, “IB was relegated to a secondary status and army-dominated intelligence agencies, ISI in particular, assumed a pre-eminent role,” an ex-intelligence boss says.

The expansion of the role of intelligence agencies into domestic politics coincided with growing skepticism among political class and legal experts towards their functioning. The issues of some kind of a civilian control over them and the need for a law to govern their working became hot topics of debate, says Justice (retd) Mehmood.

But voices raising these issues never developed into a potent force, mainly because the military has been ruling the country both directly and indirectly, he says. “In direct military rule, the office of army chief and the chief executive of Pakistan come together in one person. This allows intelligence agencies to escape the need to have a legal cover and face accountability by claiming that they are already answerable to the highest authority in the country,” he observes. The civilian governments that follow the military ones are always so weak that they fear raising the issue and annoy the army, he adds.

The superior courts in Pakistan have also done little to change this state of affairs. Some legal experts and human rights activists claim that the courts informally granted a kind of immunity to intelligence agencies in so far as that they were never made respondents in cases dealing with the detention of individuals by them. A senior lawyer cites previous judgements  in which superior courts have avoided reporting facts of cases registered under the Security of Pakistan Act and the Pakistan Army Act, in an apparent attempt to keep the working of the intelligence agencies a secret.

This continued until recently despite the fact that there is no explicit bar on the jurisdiction of the superior courts to hold any state institution answerable, says a legal expert.