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Q&A : Hafiz Mohammad Saeed and Pakistani Legislation

On 10 December 2008, the UN Security Council (UNSC) Al-Qaeda and Taliban Sanctions Committee, added three more names to its list of individuals “subject to the assets freeze, travel ban and arms embargo set.” Among them was Hafiz Mohammad Saeed - the founder of the Lashkar-e-Taiba (LeT) as also of the charity Jammat-ud-Dawa (JuD), a front for the LeT - who made headlines in recent weeks after the Lahore High Court ordered his release on 2 June in a controversial ruling. With the UNSC adding more names to the list on 29 June, this development brings Saeed back to the forefront of discussions and questions the Pakistani government’s actions regarding its anti-terrorism legislation.

Q: What were the charges against Saeed?

A: Saeed was put under house arrest by Pakistan only a couple of days after the Sanctions Committee announced its blacklist and was brought to trial along with several others in June at the Lahore High Court on charges of involvement in the November 2008 Mumbai attacks. His movements had thus been seriously controlled for the past six months, although it is speculated that even this initial detention was the result of American pressure, and not an independent action of the Pakistani government.

Q: What was the judgment?

A: Saeed’s trial in June ended in his release, as the court ruled there was insufficient evidence upon which to convict him. The judges declared there was neither “evidence that the petitioners had any links with […] any terrorist movement which could endanger the security of Pakistan,” nor any indication “declaring that the petitioners are involved in anti-State activities and security risk.” In addition, the judges reminded the international community that al Qaeda was not formally banned in Pakistan.

Western media attacked Pakistan’s behavior citing it as “business as usual,” while Pakistani news sources on the other hand focused on elements of the court ruling, especially the lack of evidence brought forth by the government. Furthermore, a great deal of attention was paid to the fact that Saeed’s initial detention was called unconstitutional by the Lahore judges, as Resolution 1267 made no mention of detaining blacklisted individuals.

Q: Could the government not have charged him with stronger offenses?

A: The government surely knew the charges were weak against Saeed. Pakistani legislation regarding terrorism is not only difficult to understand, but incredibly ambiguous. Only after pressure by the US in the aftermath of 9/11 did former Pakistani President, Gen. Pervez Musharraf seek to improve the existing measures by promulgating the Anti-terrorism (Amendment) Ordinance of 2002 (ATA). This lead to the de jure ban of the LeT along with five other groups. Yet, the ambiguity in the Pakistani legislation allows for a broad interpretation of the so called terrorist charge. According to ATA, terrorism would mean having committed “a scheduled offence, the effect of which will be [to] create a sense of fear and insecurity in the people.”

Indeed, section 11(A) of the 2001 ATA still empowers the Pakistani state to contain any organization if it has “a reason to believe that [it] is concerned with terrorism.” The void suits the Pakistani government well as it seems obvious that the executive will prevail over the legal branch in matters of enforcement. There is no doubt the Lahore ruling could have looked a lot different if only the government had decided to exploit its entire legislation.

Q: Why has Pakistan called for Interpol’s help?

A: In a tactical move, both to gain credibility and ensure that any trials would take place on its soil, Pakistan sought to involve international actors in its plight, giving Interpol its copy of the investigation along with some DNA profiles. The request eased a great deal of foreign pressure, although it did little to appease India. The Secretary General of ICPO-Interpol, Ronald K Noble, stated in his press statement in Islamabad that for “The first time [Interpol had] police information on those who planned, facilitated and funded those attacks,” thus pointing indirectly at New Delhi’s refusal to share its own DNA information. 

After Saeed’s release, New Delhi chose to challenge Islamabad at its own game, making its own call to Interpol. The special court dealing with the Mumbai attacks issued non-bailable warrants against Saeed and 21 other Pakistanis on 23 June that are to be executed through the Interpol. Once Interpol issues a request for extradition, Pakistan, as a member of the international organization, will normally have to arrest Saeed once again. Yet, there is little doubt Pakistan will make a significant move towards cooperation here, probably leaving the International Criminal Police Organization caught in a diplomatic crossfire. If that becomes the case, Pakistan will be breaking its international obligations regarding both the UN Charter and the Interpol constitution.

Q: Where do we go from here?

A: Putting more pressure on the Pakistani government might not be a solution here, with the Pakistan Minister of State for Foreign Affairs Malik Amad Khan saying that “no Pakistani national would be handed over [to India]” after the news broke in Islamabad. If there is no space for trust in the bilateral relationship between India and Pakistan, there is little chance it could be found through the Interpol.

The Pakistani state has shown it does not want to convict Saeed solely on the basis of his affiliation with the JuD or the LeT because Pakistan needs them for the Kashmir cause. As the international community still wonders if the man will ever be put on trial, whether in India or Pakistan, will India have the patience to wait?