LAW RESOURCE INDIA

Witness for the prosecution

Posted in PROSECUTION by NNLRJ INDIA on February 24, 2010

NITYA RAMAKRISHNAN IN INDIAN EXPRESS

Hafiz Saeed, head of the “JuD aka LeT” (a Security Council description) figures, in popular perception, as the symbol of all that ails Indian security today: jihadi violence, Pakistani malice, US doublespeak and Indian helplessness.

Curiously, in Pakistan too, Saeed is the man they pick up after every serious incident of terror in India. He was held under preventive detention after the December 2001 attack on Parliament, after the July 2006 Mumbai train blasts, and after the November 2008 Mumbai attacks. The Lahore high court struck down each detention. Was the court left with any other option? Was any other legitimate course open to the government of Pakistan? The answers, respectively, are no and yes.

The orders of detention and the manner of justification offered for these by the Pakistani government virtually invited the writs of release. The preventive detention of 2008, in particular, was adopted instead of a viable terror law prosecution — which would have even precluded Saeed’s release on bail.

Saeed was detained in December 2008 under the Maintenance of Public Order Act (MPO). (This was just after the UN Security Council had declared the JuD to be but an alias of the LeT.)  Pakistan has not formally proscribed the JuD by naming it in the first schedule of the Anti-Terrorism Act of 1997 (ATA).  Ordering his release, the court said this: “so far as the Resolution is concerned there is no matter before us about the vires and the government can act upon the same in letter and spirit if so advised. But relying on the same, the detention cannot be maintained as it was even not desired thereby,” according to Dawn on June 3, 2009.

Without formally banning an organisation, the consequences of illegality cannot, naturally, be visited upon its members. Answers, however, were still available to be given to the court. Sections of the ATA extend the ban on a listed organisation to cover its operations under any other name. But the government did not assert that the JuD was merely another name under which the already-proscribed LeT was operating. Besides, to sustain the detention, which was under the MPO, it was sufficient, but necessary to show that Saeed was a threat to public safety. Instead, a blatantly untenable ground was pleaded — which was, consequently, rejected. Reportedly, the court was verbally told that the JuD had al-Qaeda links. Association with a banned organisation, when made out, is a case for a criminal prosecution and not really one for preventive detention, although the two are not mutually exclusive.

The court’s suggestion that the government could take appropriate action on the Security Council resolution was not followed either “in letter” or “in spirit”. Without either formally proscribing the JuD or declaring it to be impliedly banned as a front for the LeT or the Al-Qaeda, FIRs were lodged on September 16, 2009 in Faisalabad under provisions that relate to support for a “proscribed organisation”. It should have been evident to the meanest intelligence that they were doomed to be quashed. The court was bound by the earlier view (and one of a larger bench) that the JuD had not been shown to be a “proscribed organisation”. Sure enough, the court quashed the FIRs, quoting the earlier case. Those FIRs also, reportedly, recorded Saeed’s open threats to organise jihadi violence against foreign nations. This was a separate offence under the ATA, but that fact was neither mentioned in the FIR nor pointed out to the court.

The ATA defines a “terrorist act” so broadly as to include even the threat of action “designed to create insecurity”, “intimidate the public” or “to advance a sectarian, communal or ethnic cause.” The action threatened may be death, grievous injury or destruction of property. The threat of sectarian violence is a cognisable offence of terrorism by virtue of Pakistan’s loosely worded terror legislation. It is punishable with life, or at least, imprisonment of over ten years; bail is barred in any ATA offence that carries a punishment of ten years. In October 2009, the law was widened to include the intimidation of foreign agencies. Saeed’s reported February 5, 2010 speech at Muzaffarabad would clearly be one such instance.

Personally, I disapprove of altering normal procedure and restricting judicial discretion, which terror laws are prone to doing; but, clearly, many governments do not share my view. So, despite the claim that India has not given it enough evidence on Saeed, it does seem that Pakistan has, on its own, enough of law and fact to effectively contain him without pleading the excuse of judicial obstruction.

Pakistan has claimed a right to try cross-border offenders in its territory, instead of extraditing them.

Extradition, despite various UN resolutions, remains a sovereign prerogative. The exercise of the option to try the offenders, however, implies the duty to unearth the necessary evidence and seriously prosecute all those who are implicated. Pakistan is trying five men for the terrorist conspiracy behind the November 2008 Mumbai attacks, including Lakhvi, said to be a deputy of Hafiz Saeed. A proper investigation should then have yielded material on Saeed.

Dialogue with Pakistan must factor in the quality of the Lakhvi prosecution as well as the options left out in dealing with Saeed, a man whom Pakistan has acknowledged to be a terrorist.

The writer practices in the Supreme Court of India

http://www.indianexpress.com/news/witness-for-the-prosecution/583593/0

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