WAR AGAINST TERRORISM: THE PAKISTANI FARCE

International Terrorism Monitor--- Paper No. 533
B. Raman

Some years ago, when Gen. Pervez Musharraf, the blue-eyed warrior against terrorism of the then President George Bush, was the President of Pakistan, its police had arrested an individual on a charge of belonging to Al Qaeda, a terrorist organisation. When he was produced before an Anti-Terrorism Court, it asked the Government lawyer to produce a copy of the notification under which Al Qaeda had been declared a terrorist organisation. After some days, the lawyer went back to the court and told it sheepishly that the Government had overlooked declaring Al Qaeda a terrorist organisation.He promised that a notification would be issued shortly and wanted that the arrested person should continue to remain in custody till then. The court did not accept the plea. It ordered his release. It held that even if it was a fact that he belonged to Al Qaeda, he had not committed an offence because Al Qaeda was not a terrorist organisation under Pakistani laws.

2. Some years later, in December 2008 to be precise, the Pakistani Govt. placed Prof. Hafeez Mohammad Sayeed, the Amir of the Jamaat-ud-Dawa (JUD), the political front of the Lashkar-e-Toiba (LET), under house arrest in the wake of the Mumbai terrorist strike of November 26. The action was taken following the decision of the anti-terrorism Sanctions Committee of the UN Security Council to include the JUD and the LET as associates of Al Qaeda and the LET.

3. Sayeed went to the Lahore High Court to challenge his house arrest. The Government lawyer told the court that the action of the Sanctions Committee obliged the Government to act against him. When the court did not agree with that contention and asked the lawyer whether the Government had any independent evidence of its own, the lawyer met the three judges privately and showed them what he claimed was independent evidence of the LET's links with Al Qaeda. The judges wanted to see a copy of the Government notification under which Al Qaeda was declared a terrorist organisation.

4. After some days, the lawyer went back to the court and told it sheepishly that the Government had not yet declared Al Qaeda a terrorist organisation. The court told him that if that was so, the LET's having links with Al Qaeda is no offence under the law.

5. The court, which ordered the release of Sayeed on June 2, 2009, released on June 6, 2009, the details of the grounds on which it ordered his release. One of the grounds says: "The security laws and anti-terrorism laws of Pakistan are silent on Al Qaeda being a terrorist organisation." The court added: "Even after the perusal of these documents we do not find any material declaring that the detention was necessary for the security of the petitioners and there was no evidence that the petitioners had any links with Al Qaeda or any terrorist movement.”

6. Thus, eight years after 9/11, Pakistan is yet to declare Al Qaeda a terrorist organisation.Osama bin Laden may be an illegal immigrant for having crossed over into Pakistan from Tora Bora without a valid visa, but he is not a terrorist under Pakistani laws. Is this sheer, shocking negligence or is there something more sinister to it? Does one require any more evidence to show that Pakistan's so-called war against terrorism is a farce?
7. Annexed is a copy of a report carried by the "Daily Times" of Lahore on the details of the grounds cited by the court for Sayyed's release,

(The writer is Additional Secretary (retd), Cabinet Secretariat, Govt. of India, New Delhi, and, presently, Director, Institute For Topical Studies, Chennai. E-Mail: seventyone2@gmail.com)

ANNEXURE

(Report carried by the "Daily Times" of Lahore on June 7, 2009)

LHC full bench issues detailed judgement in Hafiz Saeed case

Bench observes detention decision lacks solid evidence

* Bench says Pakistani laws silent on Al Qaeda being terrorist organisation

* Points out negligence in detention orders

Staff Report

LAHORE: A full bench of the Lahore High Court (LHC) on Saturday released a 20-page detailed judgment in the detention case of Jamaatud Dawa chief Hafiz Muhammad Saeed and Dawa leader Col (r) Nazir Ahmad.

The bench held that the government’s decision to detain the Dawa leaders was not based on solid evidence and the material provided by the government against them was incorrect and even prepared after their detention. The bench observed that the government had no evidence that Saeed and Nazir had any link with Al Qaeda or were involved in anti-state activities, except the ‘bald allegations’ leveled by the Indian lobby that they were involved in the Mumbai attacks.

The bench on June 2, through a short order, while accepting a habeas corpus petition, had declared the detention of both Dawa leaders illegal and had ordered their release.

The bench held the material against the petitioners was mostly based on intelligence reports, which had been obtained after four months of their detention. Moreover, these reports were found to be incorrect as nothing apprehended in the reports actually took place, it held.

The bench observed that several intelligence reports were obtained during the period when the petition was pending, apparently to cover the lacunae, but there was no solid evidence or source to supplement the reports. About the Dawa leaders’ involvement in the Mumbai attacks, the bench observed that not a single document had been brought on the record that Dawa or the petitioners were involved in the said incident.

On the government’s point of view that the leaders were detained on the United Nations’ directions, the bench observed that in the Memoona Saeed vs Government of Punjab case, it had already been held that there was no evidence that Dawa had links with Al Qaeda.

Silent laws: The bench held that the security laws and anti-terrorism laws of Pakistan were silent on Al Qaeda being a terrorist organisation.

The bench held, “Even after the perusal of these documents we do not find any material declaring that the detention was necessary for the security of the petitioners and there was no evidence that the petitioners had any links with Al Qaeda or any terrorist movement.”

The bench observed that it was mandatory for the detaining authority to provide grounds of detention, but it violated the provisions of the constitution by depriving the petitioners of an opportunity to assail their detention before a competent forum and also to know the allegations against them.

The bench held that this violation of law alone was sufficient to declare the detention of the petitioners illegal.

Negligence: The bench pointed out the negligence of the detaining authorities in issuing the detention orders. It remarked that even the second order passed by the home secretary did not contain that it was an extension of the earlier order, but from the language, it seemed to be a fresh order. This showed that the executive authorities had passed the detention orders in a careless manner, and did not even know that the detainee was already in custody. On the question of the review board’s authority to extend the detention, the bench held that the status of the board was of a recommending body.

The bare perusal of Article 8 of the Constitution revealed that a sitting judge of the LHC, nominated by the chief justice, was a member of the board but even then the LHC had set aside the order of the review board in different reported judgments. The bench remarked that even the apex court had already declared that the order of the review board was quasi-judicial and was amenable in writ jurisdiction. On the question of maintainability of the petition, the bench held that it was maintainable, as prima facie the government had no sufficient grounds to detain the petitioners as a preventive measure. The bench comprised of Justice Ijaz Ahmad Chaudhry, Justice Hasnat Ahmad Khan and Justice Zubdatul Hussain.