Legal eye
Hafiz Saeed has been place under house arrest under the Anti-Terrorism Act, we are told. Why has he been detained at this time? Is it due to UN Security Council Resolution 1267? Does it have to do with President Trump slapping a ban on seven Muslim-majority states and the White House chief of staff acknowledging the possibility of the ban being extended to Pakistan? No, we are told. The decision to detain him has been taken by the state ‘in the national interest’, the ISPR DG has revealed, and it has nothing to do with foreign pressure.
Hafiz Saeed was detained in December 2001 after India cried itself hoarse that he was involved in the attack on the Indian parliament. He remained in detention for a few months. He was placed under house arrest once again in 2006 after the Mumbai train bombings. He was released on the orders of the Lahore High Court when the state failed to justify his detention. After the 2008 Mumbai attacks, the UNSC Committee (established pursuant to Resolution 1267) included him, on India’s request, in the list of individuals sanctioned for links with terror.
After the UNSC endorsed the claim that the JuD was an alias for the Lashkar-e-Taiba and the organisation and its head were mixed up with terror, Hafiz Saeed was again placed under preventive detention. In 2009, the LHC again ruled that such detention breached Article 10 of our constitution and ordered his release. Meanwhile, the US endorsed the UNSC position, designated the LeT and JuD as foreign terrorist organisations and, in 2012, also placed a bounty of $10 million on Hafiz Saeed for his alleged role in the Mumbai terror attacks.
Masood Azhar of the Jaish-e-Mohammad has a similar story. He rose to fame after being released by India in exchange for passengers of the Indian Air flight that was highjacked and taken to Kandahar in 1999. He returned to Pakistan triumphantly and addressed large public rallies, promising to liberate Kashmir. He was held after the attack on the Indian parliament in 2001 and later released on court orders in 2002. Most recently, he was placed under protective custody in 2016 after India claimed that he and the JeM were responsible for the Pathankot attack.
The world seems convinced that Saeed, Azhar and others of their ilk are patrons of terror. The UN Sanctions Committee has formalised this conviction in the case of Saeed. Azhar hasn’t yet made it to the list only because our good friend China continues to veto India’s requests. It has done Pakistan the favour a few times. Let’s see how long it can keep delivering. Pakistan’s formal position seems to be that the world is misunderstood about these gents. They are victims of an Indian conspiracy and we detain them only as an international obligation.
Other than China, no one in the big league buys our story. As our state continues to stick its neck out for our homebred jihadists who are UN-designated terrorists, the conclusion that the international community draws is that Pakistan is complicit in terror. After the OBL disaster, we feigned ignorance and were able to convince the world that we were not complicit but incompetent. Can we claim incompetence in case of our Saeeds and Azhars? Could they be in business all this time if the state didn’t have their back?
How long do we plan to continue this detention and release game with jihadists and extremists? If, after two decades of scrutiny, the state is convinced that they are clean, why is it failing to convince the international community? And if they are not, why do they remain Pakistan’s underbelly? Are they still part of our national security doctrine? Is the state motivated by the belief that the now-entrenched global consensus against the threat of ideologically motivated non-state actors will melt away with time and their use will again be legit?
Pakistan has done a great job fighting terror since the APS attack. We relentlessly market our success story – as we should. But the key lesson from this success is that our state has the ability to bust terror when it wishes to. How does this sit with the other argument we use as a defence to the label of terror sponsors: that few other states have suffered as much due to terror as we have? What we are really saying is that what state would be dumb enough to lose over 50,000 citizens and soldiers to extremist violence and still patronise extremist violence.
Our state is no bleeding heart. In fact, it is hard and rough. It has successfully weaved a narrative that ‘jet-blacks’ have no rights. It justifies extrajudicial killings in ‘war times’ (which don’t seem to go away). It takes pride in extinguishing Malik Ishaqs and Baba Ladlas when it wants to. It defends the need for making citizens go missing. Why in such a state – whose citizens dread after every international terror attack that its links might be traced to Pakistan – do proponents of religious extremism and violence continue to thrive unless they cross the state?
The point is that Pakistan is not a failed or dysfunctional state when it comes to defence and security. It has a strong and efficient military, potent intelligence agencies and the gall to take tough measures when the need arises. Its citizens know so and so does the world. And that is why when it comes to people like Saeed and Azhar – who might believe in exporting jihad but not in waging it against the state – the international community thinks Pakistan is complicit. The only confusion is whether this policy is set at the top or running on inertia in the face of an ambivalent top.
The rule laid down in Rylands v Fletcher by the House of Lords in the context of negligence was that “the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape”. This is the logic the world employs in the context of non-state actors and so citizens of the states that are deemed to patronise non-state actors are asked to pay the price.
Those within our security establishment who believe Pakistan has been getting away with its running-with-the-hare-hunting-with-the-hounds policy must think again. Why were the skies caving in on us after 9/11? Why did the US flirt with the idea of declaring us a terror sponsor, until we joined its war on terror and paid a huge price fighting the demons we had earlier created with US help? Why are we worried that the new US administration might include Pakistan within its Muslim ban? Why aren’t Malaysia, Turkey or even Bangladesh so worried?
Why is the Pakistani passport one of the hardest to carry and our right to freedom of travel so fettered? Why is brand Pakistan burdensome for Pakistani businesses, especially IT companies that otherwise have great potential to compete worldwide? Why isn’t Pakistan – a country of 200 million potential consumers with a growing middle class – a natural destination of foreign direct investment? Is the price that Pakistan and its citizens have paid for an ill-conceived fetish for non-states even quantifiable?
Trump’s Muslim ban is racist, vile, unlikely to be effective, and likely to sow hate and fear within the US and spread strife around the world. But we can’t control who the US elects as president and what he does when in office. What we can do is make Pakistan and its citizens less vulnerable to Black Swan events like a 9/11 or a Trump presidency. Thinking minds within our establishment must reconsider the state’s policy of letting factories of religious extremism be, and the indeterminable cost we continue to pay for them.
The writer is a lawyer based in Islamabad.
Email: sattarpost.harvard.edu