ISLAMABAD: The allegations levelled by the Joint Investigation Team (JIT) probing alleged money laundering by the ruling Sharif family and counter-allegations against it have stirred up a decades-old controversy: wiretapping of government officials by intelligence agencies.But the indi­gnation of the Prime Minis­ter’s House, which alleged that the JIT had been tapping their phones and monitoring witnesses that appear before it, has highlighted the absence of a legal framework governing surveillance and interception by intelligence agencies.

On June 16, the PM House accused the six-man JIT — which includes retired officers from the Military Intelligence (MI) and Inter-Services Intelligence (ISI) — of violating the law and Constitution.

“The reliance and reference to ‘technical analysis’ is indeed an admission by the JIT of phone-tapping and monitoring of witnesses,” said a rejoinder issued to the JIT’s own application before the Supreme Court, which accused different government institutions of hampering its work and tampering with documents.

The PM House version was part of the four-page rejoinder, submitted by Attorney General Ashtar Ausaf Ali before the Supreme Court in response to the JIT’s application.

But the main reason this issue still persists is that Pakistan still has no laws that deal with interception and eavesdropping by intelligence agencies, nor are there strictly codified limits on the extent of their powers.

When asked to comment, Senior Pakistan Bar Council (PBC) member Raheel Kamran Sheikh highlighted the need for a comprehensive legislative framework to regulate surveillance and interception activities by intelligence agencies, or any other department guilty of wiretapping.

If laws were not drafted, there would be no checks or balances on these practices, he said, adding that in the absence of such a framework, such complaints or allegations would continue to surface every now and then.

In the status quo, the surveillance and interception activities of intelligence agencies or any other person fall outside the scope of the Fair Trial Act (FTA) 2013, and therefore would be without lawful authority.

The limited exceptions enshrined in the FTA, Mr Sheikh said, only dealt with cases of scheduled offences, and called for warrants to be obtained pursuant to written orders from the interior minister.

The issue has also been debated before the Supreme Court in Constitution Petition No. 105 of 2012 (Hamid Mir and another VS Federation of Pakistan etc.), otherwise known as the media commission case.

In particular, Mr Sheikh said, the legal framework governing the use of Secret Service Funds by intelligence agencies and the scope of authority of the auditor general of Pakistan to audit them was taken up by the apex court.

Senior counsel Tariq Mehmood Khokhar said the courts were no stranger to the abuse of interception and surveillance powers. For instance, there were the infamous recordings of former Lahore High Court judge Malik Qayyum, whose discussions with senior PML-N leaders, including Saifur Rehman, regarding an ongoing case were leaked, leading Qayyum to quit his position.

He also recalled the infamous Operation Midnight Jackal, the conspiracy hatched against the late Benazir Bhutto during her first stint as prime minister in 1989 by two rogue ISI officers, Brig Imtiaz and Major Amir.

Then, there was the time that intelligence agencies were ordered to sweep the Supreme Court building for bugging devices.

This transpired in July 2007, when former Justice Khalilur Rehman Ramday was hearing a case relating to the sacking of then chief justice Iftikhar Mohammad Chaudhry. He had banned intelligence operatives from the court’s offices and had also instructed the head of the Intelligence Bureau (IB) to sweep the Supreme Court and all judges’ residences.

The court had also asked the IB chief to file a sworn affidavit stating that the premises had been cleared of all such intelligence-gathering gadgets.

The order came after Barrister Aitzaz Ahsan, representing Justice Chaudhry, highlighted the presence of certain “scandalous and vexatious” documents and photographs of his client’s residence.

The ISI too, on June 3, 2015, disclosed before the apex court that it had tapped 6,856 telephones across the country in May of that year, a little more than the number of calls it recorded in April 2015, which was 6,742.

The information was shared during proceedings of a two-decade-old suo motu case, initiated by former chief justice Sajjad Ali Shah in 1996 after he found a recording device attached to his telephone, ostensibly by certain spy agencies. The agency’s report was submitted in a sealed envelope to the court. The case is still pending and is heard in-chamber instead of the open court.

Published in Dawn, June 25th, 2017