Addressing Mumbai

In a relationship as heavily burdened by mistrust as that of India and Pakistan, truth is not self-evident and needs to be verified. The role of Pakistani intelligence agencies in fomenting violence in India might be manifest to the Indians. But in the Pakistani public mind it is seen as vicious propaganda aimed at maligning the ISI that is merely responding to the activities of RAW. The point is not which perception is closer to reality. States employ resources to create realities favourable to their perceived interests. For example, the US went into Iraq after assuring the world and the United Nations that it possessed incontrovertible evidence regarding Iraq's weapons of mass destruction. That claim turned out to be false. We now hear similar stories about Iran's nuclear weapons program which aren't deemed credible by friends of Iran. Thus, to the extent that Pakistan and India believe that they have a shared interest in creating peace in the region and improving their bilateral ties, it is essential to garner verifiable facts regarding Mumbai, bring them before public eye and take action accordingly as a means to calm down the storm now brewing in the subcontinent.

The Pakistani government has repeatedly said that it will act on evidence provided by India that implicates Pakistani actors in Mumbai terror attacks. India wants Pakistan to establish its intention and ability to act on such proof as a pre-condition for sharing it with Pakistan. And the demand is that Pakistan hand over suspects of alleged past crimes in India as a good-faith measure to qualify as a trustworthy partner. This is a mistake, for many reasons. One, given the long history of belligerence between the two neighboUrs, what date in the past do we choose as a cut-off point for accountability? If India is angry over Kargil from 1999, Pakistan is still bitter about Siachen from 1984. If Pakistani agencies are blameworthy of stirring up militancy in Kashmir in 1989 or in Punjab before that, it is a matter of historical record that India trained the Mukhti Bahini and facilitated the breakup of Pakistan in 1970-71. The world has changed since 9/11 and it is only a recent phenomenon that the role of non-state actors harnessed for pursuit of state objectives has lost its acceptability in interstate relations. In the interest of peace and constructing a better future, it is important to resist the temptation of dragging out skeletons from the cupboards of history.

Two, India's desire to punish the perpetrators of Mumbai should not encourage it to ride roughshod over the due process of Pakistani law. A popular demand in India is that as a confidence-building measure and starting point of cooperation over Mumbai, Pakistan should first hand over Dawood Ibrahim (wanted for the Mumbai blasts of 1993) and Masood Azhar (wanted for masterminding the plane hijacking that led to his release in 2000). This is unlikely to happen, partly because of the problems of going back in history, as mentioned above, and, more importantly, due to legal constraints. In handing over a "fugitive offender" to another state, Pakistan needs to comply with requirements laid out in the Extradition Act of1972. The Pakistani government can only extradite an offender after a magisterial inquiry – in the form of a mini-trial – is carried out under the Act and the magistrate is of the opinion that a prima facie case is made out against the accused on the basis of evidence presented. Thus, neither Ibrahim nor Azhar can be handed over to India, nor any accused in the Mumbai case be apprehended and extradited without the following of this mandatory process.

Under this Act, the requisition for surrender can be made by a state even where it does not have a formal extradition arrangement with Pakistan and the federal government has the discretion to process such a request under provisions of the extradition law. It is important for India to understand that while the Jamaat-ud-Daawa has been banned under UN recommendation, the detention of Masood Azhar and Hafiz Saeed has been ordered under the Maintenance of Public Order Ordinance – a much abused law that endows the state with the authority to detain people for a maximum of three months. But after the expiry of this period the person kept in preventive detention needs to be produced before a court, as required by Article 9 of the Constitution. The Musharraf regime had similarly detained Hafiz Saeed after the attack on the Indian Parliament in 2001. But the Lahore High Court released him later after the prosecution failed to present any evidence in support of his arrest or detention. Thus, unless India shares verifiable evidence with Pakistan, the government can neither consider requests for extradition nor prosecute citizens under Pakistan's criminal justice system.

It is true and shameful that successive Pakistani governments have handed citizens over to the US as a matter of routine in complete derogation of due process and legal requirements. Pakistan's unprincipled and spineless conduct in dealing with the US – in terms of handing over people as well as allowing drone attacks on its territory – has set a terrible precedent that India now wishes to emulate. But India's demand to hand over people without due process and desire to carry out limited surgical strikes can neither be backed by principle nor supported on grounds of pragmatism.

Pakistan has a compromised and conflicted relationship with the US largely defined by the belief of our elite that US support is essential to the grabbing and retention of domestic political power. Such a psychological mindset, together with a system where power interests trump the rule of law even within the domestic arena, enable ruling regimes to oblige the Yanks. Interaction with India, on the other hand, is a totally different ballgame. Domestic political considerations require governments to be tough with India. The outrage likely to be caused by the inability or unwillingness of a civilian government to stand up to Indian intimidation will most certainly be fatal for the government.

Notwithstanding the differences with India on how to cooperate over the Mumbai investigations or efforts of Indian lobbies to brand Pakistan as a terrorist state, we cannot put off the urgently required rethink of policies that have led to our present state of vulnerability. Such rethink must stem from the acknowledgement that the problem we are faced with is not one of international misperception about our state of affairs that can be fixed by a superior public-relations campaign. When Gordon Brown comes to Pakistan and states that 75 percent of terror plots being investigated by the UK have Pakistani links, it is not because the Indians have successfully brainwashed him or because there is an international conspiracy to fragment Pakistan.

The links between the Pakistani Army and its intelligence assets and jihadist groups is no hidden secret. It is a matter of historical record that Pakistan's ISI executed the "good" Afghan jihad conceived by the CIA. The use of non-state actors might not have been legitimate at any time but was acceptable in the past. It is not anymore. And thus the million-dollar question: when did the marriage of convenience between our security establishment and the jihadists come to an end?

In our state of defensive rage the proponents of our security establishment make two contradictory arguments. One, that the jihadist operation was conceived by the US and supported by the UK and thus we shouldn't alone be blamed for it; and, two, the assertion that most international terror plots have Pakistani links is a product of western bias against Pakistan. First of all, there is implicit acknowledgement in the west about the origin of jihadists and shared responsibility in that regard. The gripe against Pakistan is that our security establishment doesn't want to relinquish the use of such infrastructure despite the post-9/11 global consensus against non-state actors. It might not be fair. But the international nation-state system and process of evolution of norms of international behaviour aren't known for their equity. The global powers-that-be shape up the international system and its norms, and if countries located at the periphery of the international power structure, such as Pakistan, refuse to comply, they do so at their own peril.

If one reads Gen Musharraf's In the Line of Fire, it boasts of Pakistan's contribution to the War on Terror in terms of our forces capturing the maximum number of Al-Qaeda operatives from our territory. That we are in the throes of a terrorist encounter is a given. The question that the world wants an unequivocal answer to is, what side are we rooting for?



(To be concluded)

The writer is a lawyer based in Islamabad. He is a Rhodes scholar and has an LL.M from Harvard Law School. Email: sattar@post.harvard.edu