Loopholes in Pak law lead to Hafiz Saeed release

A viewpoint from Pakistan: Despite the US and UN strictures against Jamat-ud-Dawa, Pakistan legal experts claim Saeed needn't have been arrested at all.

WrittenBy:Umer Farooq
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In the books of the Pakistani security forces, Jamat-ud-Dawa is still not a banned or proscribed organisation. The country’s Ministry of Interior periodically reviews a list of proscribed organisations which currently lists 65 organisations, which are believed “to be concerned with terrorism”. Jamat-ud-Dawa is not on the list. Instead, it is mentioned in a list of four organisations which are “under watch” by the Ministry of Interior for possible links with terrorist organisations.

The Jamat-ud-Dawa (JuD) found its way into the list in January 2017. This was when its chief Hafiz Saeed was put under house arrest for his links with terrorism and international terrorist organisations. Informed government officials interviewed for this report say the diplomatic pressure was the reason why Saeed was put under house arrest on January 31, 2017. His arrest was ordered under an Anti-Terrorism Act (1997) section that proscribes individuals and organisations for involvement in terrorism, says A K Dogar, a senior Supreme Court of Pakistan lawyer who has represented Saeed and the JuD in many cases.

The government later put other restrictions on Saeed, including a travel ban and freezing of his assets. The latter action was taken in the light of Resolution 1267 of the United Nations Security Council that seeks to ban JuD, says Dogar.  He says he has not – so far – seen any material evidence that gives the government a solid basis for Saeed’s arrest.

One of the anomalies in the government’s position – as noted by the superior courts – is that while Hafiz Saeed was put under house arrest for links with terrorists, the JuD is not a proscribed organisation in the Government of Pakistan’s books. When the Lahore High Court eventually ordered Saeed’s release, it stressed the need for sufficient evidence to keep him detained. The “sensitive information” provided to the courts, in closed-door proceedings, to justify his detention was not deemed “reliable”.

In the court proceedings, the Pakistan government’s position is based on the argument that Saeed’s detention is necessary to assuage international and regional pressure and that his release could lead to financial sanctions against Pakistan. A finance ministry official was there to satisfy the court on this point but the three-member bench of the high court brushed aside his argument.

The Pakistan government brought forward this argument of international sanctions and international pressure only after persistently failing in the task of keeping Saeed behind bars since 2008 on legal grounds.

Within a few days of the UN Security Council’s sub-committee action to declare JuD as an affiliate of Al Qaeda, the Pakistan government machinery sprang into action. The Pakistan foreign ministry issued a statutory notification on December 11, 2008, listing the three actions – freezing of assets, travel ban and arms embargo – against the JuD leadership as demanded by UN Security Council Resolution 1267. But the government’s law and order machinery went in for the arrest.

The JuD chief was arrested with a few close aides and several activists from different parts of the country, which the Pakistani courts later declared not at all a requirement of UN resolutions.  As advised by the government’s legal team, the foreign ministry notification defined “assets” by including the phrase, “Their bank accounts, funds and financial resources including but not limited to those used for the provision of internet hosting or related services, used for support of Al Qaeda and the Taliban and other individuals and groups undertakings and entities associated with them shall stand frozen.” The officials of the federal government and the Punjab provincial government had been using the term terrorist organisation for JuD ever since the foreign ministry notification. However, Pakistan officials say that as an implication of the content of the notification, JuD could be considered a terrorist organisation, though nowhere in the official documents it has been proscribed as such.  Although the Pakistan government eventually paid the price for not listing JuD as a proscribed organisation, legal experts insist UN resolution 1267 doesn’t demand the government to declare JuD a terrorist organisation. “The idea is to put pressure on the listed organisation to disassociate itself from Al Qaeda and Taliban,” says a leading expert on international law, on the condition of anonymity.

Confusion abounds in government circles about the real legal status of the Jamat-ud-Dawa. While the government officials invariably describe JuD as a terrorist organisation, there is no legal document in the government’s statutory books to back up their claims. The absence of any statutory notification to proscribe JuD as a terrorist organisation proved to be the biggest hurdle in the way of government’s efforts to keep Saeed behind bars.

All this was taking place in the backdrop of immense international and Indian pressure on Pakistan government to arrest and punish the perpetrators of the 26/11 Mumbai terrorist attacks.  Saeed was put under preventive detention on December 11, 2008, a week after the UN Security Council committee designated JuD an associate of Al Qaeda and Taliban. Some six months later, the high court struck down the detention orders and directed the government to release him on the grounds that both the federal and Punjab government had failed to provide solid evidence to keep him under preventive detention.

The government made a second attempt in September 2009 to put Saeed behind bars.  This time, the government invoked Section 11-F (4) of Anti-Terrorist Act 1997 and registered two FIRs against him for delivering a fiery speech in Faisalabad and inciting people to violence. The said section of ATA 1997 prohibits leaders of banned organisations from delivering public speeches. Even this time, the Lahore High Court threw out the government’s case. The court observed that since JuD was not a banned organisation, under the law, there was no restriction on it to collect funds and hold congregations.

The dominant legal view in Pakistan is that UNSC Resolution 1267 doesn’t make it obligatory on the Pakistani government to put Saeed behind bars.

The two verdicts of the Lahore High Court over the past nine years relating to JuD and Hafiz Saeed cases, primarily upheld this dominant legal opinion. The Lahore High Court in its judgments on the issue didn’t stop the government from enforcing the demands of UN resolutions.

It only ruled that the detention of JuD leaders and other activists was not required under the UN resolution, “so far as the resolution of UN is concerned, there is no matter before us about its vires and the government can act upon the same in letter and spirit, if so advised, but rely on the same their detention cannot be maintained as it was even not desired thereby,” says the high court order.

(Umer Farooq is a journalist based in Pakistan)


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