The release of Hafiz Muhammad Saeed, founder of the Lashkar-e-Tayyeba, and currently the chief of the Jamaat-ud-Dawa, has raised a fire-storm in India. The release was ordered by a three-judge bench of the Lahore High Court.
India should not take it so hard. In April the Pakistan Supreme Court gave bail to Maulana Abdul Aziz who was in jail pending trial for abetment to murder, kidnap, and incitement relating to the Lal Masjid siege in 2007. What the two cases tell us is what we already know. Pakistan’s government, judiciary and even the military are weak and confused. Their discriminatory faculties are dulled and this results in bad judgment and poor execution of policy.
Saeed was placed under house arrest shortly after the JuD was declared a terrorist entity on December 10, 2008, and added to the UN Security Council resolution 1267 list as being another name for the Lashkar-e-Tayyeba which had been part of the list since May 2005. The UN Security Council action itself took place in the wake of the deadly attack on Mumbai on November 26 killing some 170 people. A little before Saeed’s detention, LeT functionaries Zaki-ur-Rehman Lakhvi, Zarrar Shah, Abu al-Qama, Hammad Amin Sadiq and Shahid Jameel Riaz were also arrested.
Judges
Media reports had suggested that the Punjab government prosecutors had presented in camera evidence to the court bench about Saeed’s relationship to the al Qaeda. That the court nevertheless released him suggests that the evidence was not very compelling. The court did not give any reason for his release and leaks to the media, mainly by his defence counsel, suggest that the release was ordered on the formal ground that Saeed was not informed of the charges leading to his arrest within the stipulated
15 days.
The extent of the Pakistani official complicity in his release is unclear. But suffice to say, that if the government wanted to keep him behind bars (a technicality since his own residence was a deemed sub-jail), they would have. Countries like Pakistan (and India) are not known for being sticklers for due process, and there are no dearth of examples of people kept behind bars without bail, on the flimsiest of pretexts, with the help of colonial legislation.
The lower judiciary in India, for example, tends to follow the executive’s lead on matters relating to national security and in the case of Pakistan, the problem is even more severe considering that its Supreme Court has periodically underwritten its military’s intervention in the affairs of the country under the dubious “doctrine of necessity.”
A major reason for the Lahore court’s actions are the links between the Pakistan Army and militant jehadi organisations in Pakistan. The Lashkar in particular, has had deep links with the Pakistani military and its Inter-Services Intelligence Directorate. Indeed, many intelligence officials in India, and now the US, believe that the LeT was actually set up by the ISI, and hence its India focus, despite its global rhetoric. Though formally a pan-Islamist, Saeed is a fanatically patriotic Pakistani.
The Lashkar/Jamaat-ud-Dawa, a Wahabist plant in a subcontinent where Deobandi and Barelvi Islam flourish, has links with the al Qaeda as well, and receives a great deal of funding from Saudi Arabia. Within Pakistan, the Lashkar seems to be moving towards gaining a status akin to the Hezbollah in Lebanon, where charity and community services flourish along with military capability.
Crimes
The Lahore court’s lenient approach can also be explained by Pakistan’s prevailing politico-religious culture which is badly affected by sectarianism where violence against “the other” is often condoned in the name of “true faith.” It began with attacks and proscription of the Ahmediya sect, and went on to create an almost irreparable breach between the Shia and Sunni communities in the country. Now, the militant Deobandis and Wahabis are trying to overwhelm the numerically larger populace of fellow Sunni Barelvis. In such a climate, incitement to jehad against kafirs, Americans and Hindus is unlikely to even be counted as a misdemeanour.
The quandaries in arresting and trying Saeed are manifest in the entire democratic world’s fight against terrorism. It is one thing to capture a terrorist. It is quite another to actually give him a free and fair trial within the bounds of the law of evidence of most modern states. This is the reason many of them were compelled to pass legislation that made the task of trying terrorists a little easier by short-circuiting certain legal rights that the accused normally get. Even this is not enough, and the United States still feels the compulsion of trying many of the terrorists in Guantanamo by military tribunals.
This is also the problem India has in seeking the arrest and trial of Jaish-e-Mohammed chief Masood Azhar. Actually Azhar did not commit any terrorist acts in India. He was arrested within two weeks of his arrival in February 1993. At the time the pudgy and distinctly unmilitary Azhar was secretary-general of the Harkat-ul-Ansar, and editor of its magazine. He was more of an organiser and motivator, than a fighter. The main charge against him was illegal entry, and that, too, on a false passport. All the charges against him were dropped when India was compelled to release him in exchange for the passengers of the IC814 that had been hijacked to Kandahar, by a gang led by his brother.
Subsequently he formed Jaish-e-Mohammed, and this group carried out several terrorist acts against India. But even if Pakistan were to hand over Azhar, it would be tough for India to find the evidence to convict him.
People like Azhar and Saeed are not seen posing with AK-47s, storing explosives and giving directions to militants to carry out attacks. Their greater contribution is to provide organisational and leadership skills upon which some of the deadlier terrorist organisations of the world have come up. You can go through Saeed’s public writings and speeches and you will not get anything more than the activities of a fund-raiser, organiser, motivator and ideologue.
Most of the speeches are about the necessity of jehad. Such a message has resonance in Pakistan where many in the religious, but impoverished and illiterate, populace are willing to accept this half-baked version of Islam, especially when the message comes packed with charitable and social services provided by the Jammat-ud-Dawa’s top-quality volunteers.
Judgment
As of now, people like Saeed and Azhar cannot be touched, especially in the present enervated condition of Pakistan’s political, administrative and military institutions. But change is afoot, forced by the events in Swat. The Army would have liked things to stay the way they were, but events such as the Taliban’s ambitious moves into the Malakand division and its frenzied terror attacks in Lahore, have forced the Army’s hand. The battle is now likely to expand into the Federally Administered Tribal Areas as well.
The process of combating the Taliban can bring the security forces into direct confrontation with the Lashkar-e-Tayyeba, the Jaish-e-Mohammed and other religious militias. This in turn could create conditions in which the evidence, which is not available today, to convict these terrorist “generals” is made available.
Most of Saeed and Azhar’s activities have been within Pakistan, and Pakistani authorities, especially the ISI, will have mountains of evidence, surveillance audio and video-tapes, as well as individual testimony, to convict them even under Pakistani law.
But we cannot get the ISI to turn over that evidence, or get the Pakistani courts to act on it, unless there is a transformation in the ISI and the army’s approach to the security of their country.
The road ahead is long and there will be no easy short-cuts to our goal.
This piece appeared in Mail Today June 4, 2009
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