Disturbing setback

HAFIZ MOHAMMED SAEED (in white cap), after a hearing in Lahore on May 5. The judges held that the government's failure to provide Saeed the grounds for his house arrest within the lawful period was by itself enough to quash his detention.-ARIF ALI/AFP HAFIZ MOHAMMED SAEED (in white cap), after a hearing in Lahore on May 5. The judges held that the government's failure to provide Saeed the grounds for his house arrest within the lawful period was by itself enough to quash his detention.

IT was just another busy Tuesday on June 2 at the Lahore High Court. Black-coated lawyers with files in their hands walked briskly through the corridors of the stately colonial-era building, or lounged in groups under the big shady trees. Few matters decided behind those old red-brick walls usually affect Pakistans relations with other countries. But on that day, in a cramped courtroom that belied the size of the court premises, a Full Bench of the High Court pronounced a verdict that added one more layer of frost to India-Pakistan relations, which have been lying in deep freeze since the November 2008 Mumbai terror attacks.

After a month of hearings, the three-judge Bench accepted a writ petition by Hafiz Mohammed Saeed, the head of the Jamaat-ud-Dawa (JuD), quashed his house arrest and ordered his release with immediate effect. The same went for the co-petitioner and an aide of Saeed, Colonel (retd) Nazir Ahmed. The JuD is widely known as a front of the Lashkar-e-Taiba (LeT), which is held responsible for the terrorist attacks in Mumbai in 2008, which left 180 killed.

In his confession statement to the Mumbai Police, Mohammad Ajmal Amir Iman, or Kasab, the lone surviving gunman of the 10 men who held the city hostage for four days, laid bare his connections with the LeT. The terrorist attacks paved the way for the United Nations Security Council Committee, established pursuant to Resolution 1267 on Al Qaeda and the Taliban, to designate the JuD as a front of the already designated LeT. It directed Pakistan to impose certain restrictions on Saeed, the LeT operations commander Zakiur Rehman Lakhvi and two others. Countries are bound to take action under 1267 against designated entities and individuals.

Under immense pressure from India and the international community, Pakistan had to crack down on the JuD. Its offices were closed down, its Muridke campus was sealed, and several of its leaders and cadre were detained on December 12, 2008. Saeed and five other top leaders of the JuD were among the 125 held in the swoop. They were placed under house arrest under a preventive law called the Maintenance of the Public Order Act (MPO).

Separately, the government took Lakhvi and a few others in a raid on an LeT camp in Muzaffarabad in Pakistan-Occupied Kashmir. In February, the government announced the registration of a case against Lakhvi and seven others. Eventually, proceedings began in an anti-terrorist court against Lakhvi and four others for conspiracy and abetment in the Mumbai case. The others are Zarar Shah, Mazhar Iqbal, Shahid Jamil Riaz and Hammad Amin Sadiq.

Meanwhile, Saeed and the other JuD leaders, none of whom figure in the case registered by Pakistan in the Mumbai attacks, were close to completing the three-month maximum term of detention under the MPO. Once this term is over, the government must approach a detention review board for extension. On March 9, the review board extended the detention of four leaders by another two months, but freed two. And, on May 9, they freed two more, but again extended the detention of Saeed and Col. Ahmed for two more months.

Saeed is a veteran of the MPO. He was detained under it in 2002, after the Musharraf regime was forced to ban the LeT, along with other militant groups, under American pressure post 9/11 and the attack on Indias Parliament House. Just days before the ban, the former Islamic studies teacher, evidently scenting trouble, relinquished leadership of the LeT and declared himself the leader of the JuD only.

After a few months under house arrest, the courts set him free with a rap on the knuckles for the government for detaining him under the MPO without sufficient grounds. In August 2006, Saeed was again detained, this time following the Mumbai train blasts a month earlier, though the government did not make this link for the detention.

But after two weeks he was ordered released by the Lahore High Court, which pronounced dissatisfaction with the governments contention that it had detained him because it believed that his fiery speeches were a threat to public order. The police detained him once more, within a few hours of his release. That prompted his wife, Maimoona Saeed, to move the Lahore High Court, and after three months, he was out again. The High Court ruled that the Punjab Police had violated the Constitution in not showing him the detention order or providing him the grounds for his detention.

So, when Saeed moved the Lahore High Court in the first week of May with a petition challenging his detention, it had deja vu written all over it. He chose as his lawyer A.K. Dogar, a constitutional expert, who has been involved in the high-profile battles in the Supreme Court involving former President Pervez Musharraf and Pakistan Muslim League (N) leader Nawaz Sharif over the last two years.

In conversations with this correspondent, the septuagenarian Dogar, who was a teenager studying in Rampur (now in Uttar Pradesh) at the time of Partition, spoke about his admiration for Mahatma Gandhi. He revealed that Gandhis writings were a constant source of inspiration to him and that he loved and admired India.

The petition he framed made the simple point that Article 10 of the Pakistan Constitution clearly lays down that while detaining a person under a preventive law, the detaining authority must provide him/her the grounds for detention within 15 days. Saeed was shown the grounds for his house arrest when his detention came up before the review board for its first extension, in March.

The grounds, as shown to Saeed, made a reference to the U.N. Security Council resolution. The petition went into issues of sovereignty for the Government of Pakistan following a U.N. resolution and accused the world organisation of bias against Muslim countries. It even alleged that the Pakistan government, under pressure from India and the United States, had conspired with the Security Council to put the JuD leadership behind bars. But the crucial legal point it made was that the U.N. resolution demanded an arms embargo, a travel ban and a funds freeze on the designated entity. Arrest is mentioned nowhere.

When Justices Ijaz Ahmad Chaudhary, Hasnat Ahmad Khan and Zubdat-ul-Hussain gave the order for Saeeds release, no one could fault them. By the time Attorney General Latif Khosa appeared before the court after repeated admonishments from the Bench for holding up the case by his non-appearance with what he said was fresh evidence, the judges seemed to have already made up their minds. My lords, you must decide this case quickly, pleaded Dogar at one hearing.

We are ready to give the verdict today. We have been ready to give a verdict from the beginning, the judges said.

They granted Khosas request for a meeting in the chambers, where he wanted to show them the new material, which he said could not be placed before an open court. The government side also argued that it was bound by the U.N. resolution and that the JuD was alleged by India to have been involved in the Mumbai attacks.

But the judges finally held that the failure of the government to provide Saeed with the grounds for his house arrest within the lawful period was by itself enough to quash his detention.

In a detailed verdict released on June 7, the Lahore High Court Full Bench observed that intelligence agency documents presented to the judges in chambers by the Attorney General were incorrect and provided no solid evidence. It further said that the intelligence agencies had collected the information after Saeeds detention in order to cover up lacuna in the detention procedure. The information is found incorrect as nothing happened which [it] apprehended, the verdict said.

The Bench also observed that with regard to the allegations that Saeed was involved in the Mumbai blasts, not a single document has been brought on record that he or the organisation was involved in it. The verdict dismissed as a bald allegation being levelled by the Indian lobby that the JuD and Saeed had links to the Mumbai incident or to Al Qaeda and the Taliban.

There is also no such evidence declaring that the petitioners are involved in anti-state activities and are security risk, the judges wrote.

On the legality of the detention orders, the Bench observed that it was constitutionally mandatory upon the detaining authority to provide the grounds for the detention within 15 days, but the detaining authority had violated the provision, depriving Saeed the opportunity to legally protest the detention.

We have found that this violation of law alone is sufficient to declare the detention of the petitioners as illegal as it was mandatory, which shows that how the legislature was careful [while framing the Constitution] about the person being detained without a trial, the Full Bench observed.

Indias reaction was predictable. No resumption of talks until Pakistan showed sincerity in taking action against the perpetrators of the Mumbai attacks, said S.M. Krishna, Minister of External Affairs, and other government spokesmen.

The court verdict has added to the growing dilemma of New Delhi. The same Congress-led government, which threatened in the wake of the Mumbai attacks that all options are open and decided to push the pause button on the peace process, realises in a post-election scenario that sooner than later it has to direct its thumb towards the resume button. This is what the international community, led by the U.S., has also been urging. But the release of Saeed has made such a move politically difficult for the new government.

Pakistan has said that it is studying the possibility of appealing the Lahore High Court verdict. Such a move would offer India some manoeuvring space. Meanwhile, Pakistani media are floating that the Saeed release notwithstanding, back-channel contacts and track two diplomacy have already been initiated between the two sides. Now Islamabad is awaiting U.S. Secretary of State Hillary Clintons visit to New Delhi in July, quite certain that if the Manmohan Singh government does not announce a re-engagement before then, it definitely will after her visit.