D. Suba Chandran
International Strategic and Security Studies Programme (ISSSP)
National Institute of Advanced Studies (NIAS), Bangalore
As expected Hafiz Saeed, chief of the Jamaat-ud-Dawa (JuD) will be freed from the house arrest. A three member judicial review board in Punjab has denied extending the detention of Hafiz Saeed any further and has ordered Punjab to release Hafiz Saeed, “if he is not required in any other case.”
The government had placed Hafiz Saeed, along with few other JuD associates, under detention since January 2017. Saeed had approached the judiciary against his detention. The Court allowed the initial detention for three months and also its subsequent extension for three more months. Last month, the review board has given a one month notice to the government to provide adequate reasons. The release order yesterday obviously means, that the government could not build a tenable legal case.
Why did the government decide to place Saeed in detention, but not want to build legal case?
How strong was the case against Hafiz Saeed?
Did the judges err in their decision to release Hafiz Saeed, or the case was legally weak that they did not have a choice other than to release Saeed?
First, Hafiz Saeed was not “arrested” and put in a jail. He was detained in his house by the provincial government of Punjab. It all started on 30 January 2017; Maj Gen Asif Ghafoor, the ISPR spokesperson explained the detention of Saeed and his four associates, as a “a policy decision taken by state institutions keeping in view the national interest.” Subsequently, a travel ban was also imposed on Saeed and 37 others from the JuD; their names were placed under Pakistan’s Exit Control List (ECL).
Certainly, it was a “policy decision”. Unfortunately, it remained so, as the State did not follow it up legally with a proper investigation and a sound defence. Given the absence of a legal case, it was only a matter of time for the court to release him. And that is what happened in November 2017.
What was Pakistan’s “national interest” in January 2017 leading to Hafiz Saeed’s detention? Has that interest been served ten months later?
Certainly, Saeed was not arrested for his involvement in Mumbai terror attacks in a decade earlier. Earlier, thanks to the international pressure, Saeed was “detained” in December 2008, only to be released by the Courts in June 2009. For the latter, the “evidence” against Saeed was not sufficient enough. For Saeed and the Courts, 2017 should have been déjà vu.
In January 2017, when he was placed under detention again, a section within Pakistan did welcome it. Though there was a belief, the State did that to address the growing international opinion against Pakistan as a haven for terrorism and radical leaders. Earlier, the US had announced a bounty of 10 million USD for information relating to Saeed in 2012 and ever since he was under the American terror list.
Pakistan detained Saeed; but, did it build a strong case against him? One of Pakistan’s leading dailies - Dawn, in its editorial in early 2017 warned about this– of not having a strong case. It wanted a tight legal case against Saeed and his organisations so that the latter do not “outmanoeuvre investigators and state prosecutors.” It called for investigators of “highest calibre” with meticulous evidence and “the eventual framing of charges should meet the very highest standards of law enforcement and the criminal justice system.”
Unfortunately, it did not happen. From the beginning, the legal case against Hafiz Saeed was weak. He was placed under detention on 30 January 2017 for a period of 90 days. According to Chaudhry Nisar Ali Khan, the then Interior Minister, the step was taken as a part of Pakistan “fulfilling (its) responsibilities under the UN resolution.” An interior ministry order was subsequently quoted later by a local media, that the measures were taken against the JuD and the FiF, as the latter “were taking steps that were harmful to peace and security and involved in activities that violated the UNSC Resolution 1267.”
On 30 April 2017, the Punjab government extended the detention of Saeed and his associates for 90 more days. In October 2017, the Provincial Review Board had agreed to extend the detention of Hafiz Saeed for a month, but asked the government to release his four associates. By October, the writing was clearly on the wall about Saeed’s impending release. Precisely what the Dawn feared in its editorial nine months ago.
Unfortunately, neither the interior ministry of Pakistan, nor the government of Punjab could provide legal evidence proving the role of Hafiz Saeed, JuD and FiF in undermining the security within Pakistan, or international peace. Perhaps they did not want to. The primary objective was to address the international concerns of Pakistan being seen as “doing more” on counter-terror front.
The review board’s decision to refuse any further extension of Saeed’s detention was bound to happen. And it happened on 22 November 2017. He will walk free. Again.
Pakistan’s Curious Terrorism Logic -1:
India’s Terrorists are not Everyone’s
The question in November 2017, after witnessing the debate during the course of the year, over Hafiz Saeed in the media and in the court house is: what is Pakistan’s logic in detaining Hafiz Saeed, but not building a strong case against him?
Though New Delhi and rest of the international community may look at Hafiz Saeed as a terrorist for his involvement in terrorist activities in India, majority in Pakistan, especially the Establishment do not adhere to the same. A section in Pakistan considers that the Mumbai attacks in 2008 was an Indian conspiracy to defame Pakistan.
Despite few statements from the military and the government actions such as the detention in 2017 and earlier in 2008-09, Saeed and the JuD are not seen as a threat to Pakistan. Worse, a section, especially the Deep State sees Hafiz Saeed and the JuD as a trump card against India. Hafeez plays the Establishment game in India and is willing to be its proxy. So, why will the Establishment want to undermine its card?
Second, at the national level, a majority seems to perceive Hafiz Saeed and the JuD on a positive light for their role in and against India. The convoluted logic is, why should Pakistan act against someone, who is seen as an enemy number one by India?
Pakistan’s Curious Terrorism Logic -2:
Everyone’s Terrorists are not Pakistan’s
The above perception - India’s terrorists as not of Pakistan is not a standalone. It is a part of Pakistan’s larger logic – everyone’s terrorists are not theirs. The support in Pakistan to Osama bin Laden, al Qaeda, Afghan Taliban and the Haqqani network is a part of this larger perception. Not only a section believes Mumbai attacks as an Indian conspiracy, but also 9/11 as an American/Jewish conspiracy to blame the Muslim World.
Though Pakistan has acted against the middle level leadership of al Qaeda, the fact that Laden was hidden in the heartland, the refusal even today of Pakistan to release Dr Shakil Afridi (who indirectly helped the CIA to locate Osama bin Laden), and, the hesitancy to act against the Haqqani network and the Afghan Taliban will highlight an inherent reluctance.
Clearly, Islamabad would want rest of the world to see the Pakistani Taliban as everyone’s terrorists. However, everyone’s terrorists are not theirs.
Thus, the reluctance to act against Hafiz Saeed and the JuD is not only India specific, though Pakistan’s animosity towards India plays a substantial role in not pursing a strong legal case against the former