Some years ago, when Gen Pervez Musharraf, the blue-eyed warrior againstterrorism of the then President George Bush, was the President of Pakistan, itspolice had arrested an individual on a charge of belonging to Al Qaeda, aterrorist organisation. When he was produced before an Anti-Terrorism Court, itasked the Government lawyer to produce a copy of the notification under which AlQaeda had been declared a terrorist organisation. After some days, the lawyerwent back to the court and told it sheepishly that the Government had overlookeddeclaring Al Qaeda a terrorist organisation. He promised that a notificationwould be issued shortly and wanted that the arrested person should continue toremain in custody till then. The court did not accept the plea. It ordered hisrelease. It held that even if it was a fact that he belonged to Al Qaeda, he hadnot committed an offence because Al Qaeda was not a terrorist organisation underPakistani laws.
Advertisement
Some years later, in December 2008 to be precise, the Pakistani Govt.placed Prof Hafeez Mohammad Saeed, the Amir of the Jamaat-ud-Dawa (JUD), thepolitical front of the Lashkar-e-Toiba (LET), under house arrest in the wake ofthe Mumbai terrorist strike of November 26. The action was taken following thedecision of the anti-terrorism Sanctions Committee of the UN Security Council toinclude the JUD and the LET as associates of Al Qaeda and the LET.
Saeed went to the Lahore High Court to challenge his house arrest. TheGovernment lawyer told the court that the action of the Sanctions Committeeobliged the Government to act against him. When the court did not agree withthat contention and asked the lawyer whether the Government had any independentevidence of its own, the lawyer met the three judges privately and showed themwhat he claimed was independent evidence of the LET's links with Al Qaeda. Thejudges wanted to see a copy of the Government notification under which Al Qaedawas declared a terrorist organisation.
Advertisement
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. Thecourt told him that if that was so, the LET's having links with Al Qaeda is nooffence under the law.
The court, which ordered the release of Saeed on June 2, 2009, released onJune 6, 2009, the details of the grounds on which it ordered his release. One ofthe grounds says: "The security laws and anti-terrorism laws of Pakistanare silent on Al Qaeda being a terrorist organisation."
The court added: "Even after the perusal of these documents we do notfind any material declaring that the detention was necessary for the security ofthe petitioners and there was no evidence that the petitioners had any linkswith Al Qaeda or any terrorist movement."
Thus, eight years after 9/11, Pakistan is yet to declare Al Qaeda a terroristorganisation. Is this sheer, shocking negligence or is there something moresinister to it? Does one require any more evidence to show that Pakistan'sso-called war against terrorism is a farce?
Annexed is a copy of a report carried by the Daily Times of Lahore onthe details of the grounds cited by the court for Sayyed's release.
B. Raman is Additional Secretary (retd), Cabinet Secretariat, Govt. ofIndia, New Delhi, and, presently, Director, Institute For Topical Studies,Chennai.
Annexure
Report carried by the Daily Times of Lahore on June 7, 2009.
Advertisement
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 a20-page detailed judgment in the detention case of Jamaatud Dawa chief HafizMuhammad Saeed and Dawa leader Col (r) Nazir Ahmad.
The bench held that the government’s decision to detain the Dawa leaderswas not based on solid evidence and the material provided by the governmentagainst them was incorrect and even prepared after their detention. The benchobserved that the government had no evidence that Saeed and Nazir had any linkwith Al Qaeda or were involved in anti-state activities, except the ‘baldallegations’ leveled by the Indian lobby that they were involved in the Mumbaiattacks.
Advertisement
The bench on June 2, through a short order, while accepting a habeas corpuspetition, had declared the detention of both Dawa leaders illegal and hadordered their release.
The bench held the material against the petitioners was mostly based onintelligence reports, which had been obtained after four months of theirdetention. Moreover, these reports were found to be incorrect as nothingapprehended in the reports actually took place, it held.
The bench observed that several intelligence reports were obtained during theperiod when the petition was pending, apparently to cover the lacunae, but therewas no solid evidence or source to supplement the reports. About the Dawaleaders’ involvement in the Mumbai attacks, the bench observed that not asingle document had been brought on the record that Dawa or the petitioners wereinvolved in the said incident.
Advertisement
On the government’s point of view that the leaders were detained on theUnited Nations’ directions, the bench observed that in the Memoona Saeed vsGovernment of Punjab case, it had already been held that there was no evidencethat Dawa had links with Al Qaeda.
Silent laws: The bench held that the security laws and anti-terrorism laws ofPakistan were silent on Al Qaeda being a terrorist organisation.
The bench held, "Even after the perusal of these documents we do not findany material declaring that the detention was necessary for the security of thepetitioners and there was no evidence that the petitioners had any links with AlQaeda or any terrorist movement."
Advertisement
The bench observed that it was mandatory for the detaining authority toprovide grounds of detention, but it violated the provisions of the constitutionby depriving the petitioners of an opportunity to assail their detention beforea competent forum and also to know the allegations against them.
The bench held that this violation of law alone was sufficient to declare thedetention of the petitioners illegal.
Negligence: The bench pointed out the negligence of the detaining authoritiesin issuing the detention orders. It remarked that even the second order passedby the home secretary did not contain that it was an extension of the earlierorder, but from the language, it seemed to be a fresh order. This showed thatthe 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 questionof the review board’s authority to extend the detention, the bench held thatthe status of the board was of a recommending body.
Advertisement
The bare perusal of Article 8 of the Constitution revealed that a sittingjudge of the LHC, nominated by the chief justice, was a member of the board buteven then the LHC had set aside the order of the review board in differentreported judgments. The bench remarked that even the apex court had alreadydeclared that the order of the review board was quasi-judicial and was amenablein writ jurisdiction. On the question of maintainability of the petition, thebench held that it was maintainable, as prima facie the government had nosufficient grounds to detain the petitioners as a preventive measure. The benchcomprised of Justice Ijaz Ahmad Chaudhry, Justice Hasnat Ahmad Khan and JusticeZubdatul Hussain.
