Two courtrooms and a peace process
By Nirupama Subramanian
Observers are of the view that there is a strong possibility of the three–judge Bench of the Lahore High Court declaring illegal the detention of Hafiz Saeed, leader of the Jamat-ud-Dawa.
In a far corner of the bustling Lahore High Court, a stately red-brick colonial-era building, a three-judge Bench is hearing a case whose outcome could be one determinant of whether, and how soon, the re-elected Congress-led government in New Delhi is willing to restart the peace process with Pakistan, frozen since the November 2008 Mumbai terrorist attacks.
The unpretentious court-room is packed with lawyers and an audience of burly men, all of them bearded and wearing the shin-length salwar favoured by devout Muslim men. They are followers of Hafiz Saeed, the leader of the Jamat-ud-Dawa.
Mr. Saeed is under house arrest since December 2008, following a U.N. Security Council resolution tagging him and his group as terrorist. The resolution held the JuD to be a front of the similarly designated Lashkar-e-Taiba, which Pakistan banned under U.S. pressure in 2002. The U.N. resolution came after the Mumbai attacks, for which the LeT has been accused.
In response to the resolution, Pakistan shut down the JuD, took over its main Muridke campus, and closed down its offices countrywide. It also detained over a hundred of its cadres, aside from six top leaders of the group. Four have since been released.
The JuD leader and one of his associates Colonel (retd) Nazir Ahmed, who remain under house arrest, have challenged their detention in the Lahore High Court.
At the hearing, their advocate, A.K. Dogar, presented concluding arguments for the defence. A well-known constitutional lawyer, he is also defending former Prime Minister Nawaz Sharif and his brother Shahbaz in the disqualification case currently being heard in the Supreme Court.
As the proceedings began, Mr. Saeed’s followers quietly rose to gather close to the lawyer to hear him better over the noisy hum of the air-conditioner. The septuagenarian lawyer, who says he is an admirer Mahatma Gandhi and re-reads his writings constantly, submitted to the court that the U.N. resolution did not order either the arrest or detention of Mr. Saeed. It only asked for a travel ban, an assets freeze and an embargo on arms supply to the JuD.
Mr. Dogar also argued that the Punjab government did not provide the grounds of the detention to Mr. Saeed within 15 days as required by the law. When they were finally made available after 60 days, they related to the U.N. resolution and not to any of the specific reasons for detention listed in the Maintenance of Public Order, a preventive law under which Mr. Saeed has been detained.
The lawyer told the Bench that the MPO does not cover terrorist offences. So even if it was the government’s case that Mr. Saeed is a terrorist, the MPO could not be invoked for his detention. In any case, he argued, the JuD was a well-known Islamic charity and had no links to LeT.
Awaited now are concluding arguments from the government side. The Bench has chastised the deputy attorney-general for delaying the case by seeking more time and given him a deadline of May 27. As the case builds up towards a finish, observers are of the view that there is a strong possibility of the Bench declaring Mr. Saeed’s detention illegal and ordering his release.
“The government’s case is somewhat weak. The main issue, and the defence case is strongest here, is whether the detention is in conformity with the United Nations resolution,” said Ahmer Bilal Soofi, a Supreme Court advocate and an expert on international law.
“Detention is not prescribed by [resolution] 1267. The government arrested him possibly because [the Mumbai attacks] became such a huge and sensitive issue and there was such an outcry from India. But it is clearly a case of over-compliance of 1267.”
Indian diplomats here are closely monitoring the case, and said it was a test for whether Pakistan was serious about shutting down the country’s “infrastructure of terror,” as demanded by India in the aftermath of the Mumbai attacks.
The diplomats pointed out that despite the government crackdown on JuD, it recently resurfaced as a charity called Falah-i-Insaniyat providing food, water and medical care to people displaced by the military operation in Swat.
“It’s not about Pakistan not having the evidence, because it is well-known who created the LeT and for what and that the JuD is a front,” said an Indian diplomat, making an oblique reference to the group’s well-documented connections with the Pakistan military and the Inter-Services Intelligence. “This is about the government’s seriousness in building the case against Hafiz Saeed. If this had been an attack on America instead of India, these guys would have been in Gitmo Bay by now.”
In Pakistan, optimism prevails that with the Indian elections out of the way, a newly strengthened Congress-led government is freer to make positive move towards resumption of dialogue. But equally, the continuity of government in New Delhi may also mean that the hiatus could continue.
As of now, India still holds that the peace process will resume only after Pakistan acted on New Delhi’s two demands: dismantling what it calls the “infrastructure of terror”; and the speedy prosecution and punishment of the Pakistani suspects in the Mumbai case.
About 300 kms from Lahore, the proceedings in a designated anti-terror court in Rawalpindi’s high-security Adiala prison hold the key to the second demand.
Since February 12 when it first announced the filing of a first information report in the Mumbai case and the arrest of suspects, this is where the government has periodically produced the LeT suspects alleged to have directly planned and abetted the Mumbai attacks: the group’s operations commander Zaki-ur-Rehman Lakhvi; Zarar Shah; Mazhar Iqbal; Shahid Jamil Riaz; and Hammad Amin Sadiq.
The proceedings are held in camera. The judge granted physical remand of the suspects to the Federal Investigation Authority. The five are to be formally indicted at the next hearing fixed for May 23.
In an indication that the new Indian government wants Pakistan to act quickly, earlier this week, New Delhi lost no time after the election in handing over to Pakistan replies to questions it had raised last month.
In contrast to the difficulties in ascertaining if Pakistan has fully complied with the Indian demand for shutting down “terrorist infrastructure” irrespective of the outcome in the Hafiz Saeed case, the Adiala court, the diplomat said, is where Pakistan’s will to make speedy progress in the Mumbai attacks case can be monitored and measured.
In this sense, this case holds immediate importance for the future of India-Pakistan relations.
Pakistani observers believe the will to prosecute does exist. Amir Rana, who has authored A-Z of Jihad, a book on Pakistan-based militant groups, and heads the Pakistan Institute of Peace Studies, said there was no doubt the government was “going soft” on JuD.
“But in government great clarity exists that there is no way out except to go ahead with the trial of the LeT cadres, especially if the link between them and Kasab [the lone surviving Mumbai attacker being tried in India] is proved,” Mr Rana said.
Mr. Soofi described the decision to register the FIR and begin the prosecution as a “huge shift” in itself that would have been impossible had the Pakistan Army and ISI not been on board.
But according to him, that did not mean it would be smooth sailing. A lot would depend on the tightness of the chargesheet and how much evidence the government has to back it. Also, a possible defence argument that conspiracy can be established only when the offence itself was established by the Mumbai court in the Kasab case could ground the prosecution here until the completion of the Mumbai case. On the other hand, a conviction in the Kasab case would be useful to the Pakistani prosecution as evidence in their case.
Citing from his own experience in the National Accountability Bureau where he was involved in prosecuting anti-corruption cases against Benazir Bhutto and Asif Ali Zardari, Mr. Soofi said even with all its determination, the Musharraf regime had been powerless to prevent the defence lawyers from moving 200 adjournment applications, until political fortunes changed.
“Once you have filed a challan in the court, you cannot control the script of the proceedings,” he said. “People move applications, there will be nasty lawyers asking for adjournments and due process demands that these cannot be turned down.”
The ideal, he said, would have been for Indian and Pakistani prosecutors to sit down together to talk about how to go about the two cases in a coordinated way.
“What is required is not so much a joint investigation that the Pakistan government has offered, but a joint committee to discuss the investigation and prosecution mechanism,” Mr. Soofi said.
With all this, it appears that the “action” India wants Pakistan to take in the Mumbai case may take at least months if not years, with unpredictable results. Meanwhile, Pakistan believes international pressure can force New Delhi back into the peace process.
“That’s what Pakistan is hoping for, but at the moment, the world is as concerned about Pakistan showing action on the Mumbai case, because the consequences of not taking action will affect them as much as they will affect us,” said the Indian diplomat, dismissing reports of U.S. pressure on New Delhi.
Either way, India’s newly elected government will soon need to decide what do about its “paused” relations with Pakistan.
Courtesy: The Hindu, New Delhi