Hafiz Saeed’s release, is it truly a matter of national Security, a critical analysis?

On 2 June 2009 Hafiz Mohammad Saeed head of ‘MDI’ widely known as ‘Markaz Dawa tul Irshaad’ was released by the Lahore High Court (LHC) due to lack of substantial evidence of his involvement in alleged ‘terrorist activity’ and or ‘Bombay Attacks’. It is a matter of record, that on May 5 the LHC review board had extended for further 60 days the detention of Hafiz Saeed and Col (retd) Nazir Ahmed whilst releasing two JuD leaders Mufti Abdur Rehman and Amir Hamza. Now we need to see whether such release where severe opposition is expressed by executive is a matter for courts and or for the executive to decide if it qua sai damages the national security of the country. We will also see whether he may be detained on the premises that his detention is necessary to maintain good relations with other neighbouring countries.

First of all, it is a common practice in a parliamentary form of Govt that a policy is made by the Parliament and Executive implement such policy with the aid of security agencies. [Article 2(A)] of the Constitution 1973, The Objectives Resolution says, “ Wherein the integrity of the territories of the Federation, its independence and all its rights including its sovereign rights on land, sea and air shall be safeguarded”; Article 243. puts Command of the Armed Forces under the control of The Federal Government and Article 245 of the Constitution 1973, refers army’s duties as one being to ‘defend Pakistan against external aggression or threat of war.’  Now the threat is manifold and national security meaning has changed rapidly over the years. We will look in this paper the possible definition of ‘national security’ and how relevant it is in today’s time due to the threat we face in our day to day life. The meaning of "national security" that the interests of national security do not include matters which have direct bearing on the country, its people or its system of government. "National security" has the same scope as "defence of the realm". For that I rely on what was said by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410BC,and on the use of the phrases in a number of international conventions. Moreover that since ideally the Parliament is empowered to decide the policy on security and executive  (at centre & provinces) / is vested with a power to base its decisions on the basis of such policy aided by a recommendation of the Security Services (ISI/MI/IB) it can only be on matters within their purview and that their function, was:"the protection of national security and, in particular, its protection against threats from espionage, terrorism and sabotage, from the activities of agents of foreign powers and from actions intended to overthrow or undermine parliamentary democracy by political, industrial or violent means."

I rely in this regard statements by groups of experts in international law, the

Johannesburg Principles on National Security, Freedom of Expression and Access to Information, as approved on 1 October 1995 in Johannesburg which stressed as:

"Principle 2. Legitimate national security interests: (a) A restriction sought to be justified on the ground of national security is not legitimate unless its genuine purpose and demonstrable effect is to protect a country's existence or its territorial integrity against the use or threat of force, or its capacity to respond to the use or threat of force, whether from an external source, such as a military threat, or an internal source, such as incitement to violent overthrow of the government. (b) In particular, a restriction sought to be justified on the ground of national security is not legitimate if its genuine purpose or demonstrable effect is to protect interests unrelated to national security, including, for example, to protect a government from embarrassment or exposure of wrongdoing, or to conceal information about the functioning of its public institutions, or to entrench a particular ideology, or to suppress industrial unrest." It seems to me that those opposing may be entitled to say that "the interests of national security" cannot be used to justify any reason for the interior ministry to detain and or deport a citizen and in case a non Pakistani to deport or hand him over to a third state from Pakistan. There must be some possibility of risk or danger to the security or well-being of the nation which the interior ministry considers makes it desirable for the public good that the individual should be detained and or deported. It depends how we look at that threat from judicial, political and executive point of view.

Though however, I do accept that this risk may not have to be the result of "a direct threat" to the state as I accept that the interests of national security are limited to action by an individual which can be said to be "targeted at" the Pakistan,  its system of government or its people as the scholars considered  that this limitation is not to be taken literally since they accept that such targeting: "includes activities directed against the overthrow or destabilisation of a foreign government if that foreign government is likely to take reprisals against the Pakistan which affect the security of the Pakistan or of its nationals". I accept as far as it goes a statement by Professor Grahl-Madsen in The Status of Refugees in International Law (1966):"A person may be said to offend against national security if he engages in activities directed at the overthrow by external or internal force or other illegal means of the government of the country concerned or in activities which are directed against a foreign government which as a result threaten the former government with intervention of a serious nature".

It seems to me that, in contemporary world conditions, action against a foreign state may be capable indirectly affecting the security of the Pakistan. The means open to terrorists both in attacking another state and attacking international or global activity by the community of nations, whatever the objectives of the terrorist, may well be capable of reflecting on the safety and well-being of the country or its citizens. The sophistication of means available, the speed of movement of persons and goods, the speed of modern communication, are all factors which may have to be taken into account in deciding whether there is a real possibility that the national security of the country may immediately or subsequently be put at risk by the actions of others. To require the matters in question (Hafiz Saeed &others) to be capable of resulting "directly" in a threat to national security limits too tightly the discretion of the executive in deciding how the interests of the state, including not merely military defence but democracy, the legal and constitutional systems of the state need to be protected. I accept that there must be a real possibility of an adverse affect on the country for what is done by any potential individual under trial or under inquiry but I do not accept that it has to be direct or immediate, as it could be indirect. Whether there is such a real possibility is a matter which has to be weighed up by the Govt/Interior Ministry and balanced against the possible injustice to that individual in case a criminal trial is proceeded.

 The executive does not have to open its cards and pin its colours to one mast and be bound by his choice. At the end of the day the question is whether the decision is conducive to the public good, and in the interest of national security. I would accept that if the executive’s view is that the reciprocal co-operation between the Pakistan and other states in combating international terrorism is capable of promoting the Pakistan’s national security, and that such co-operation itself is capable of fostering such security "by, inter alia, the Pakistan taking action against supporters within the Pakistan of terrorism directed against other states". There is a very large element of policy where executive can claim that a preventative or precautionary action is justified. If an act is capable of creating indirectly a real possibility of harm to national security it is in principle wrong to say that the state must wait until action is taken which has a direct effect against the Pakistan.

 National security and defence of the realm may cover the same ground though I tend to think that the latter is capable of a wider meaning. But if they are the same then I would accept that defence of the realm may justify action to prevent indirect and subsequent threats to the safety of the realm. Pakistan is not obliged to harbour terrorists who are currently taking action against some other state (or even in relation to a contested area of land claimed by another state) if that other state could realistically be seen by the executive as likely to take action against the state (Pakistan) and its citizens. Same nexus applies for terrorist infiltrating to Pakistan from western border using foreign aid and weapons.

Now the question arises who decides what is in the interest of ‘national security’ of Pakistan . It is the security of the Pakistan and its people. On the other hand, the question of whether something is "in the interests" of national security is not a question of law. It is a matter of judgment and policy. Here in the case of Hafiz Saeed Govt of Punjab is maintaining that he poses a threat to ‘public good’ and can endanger relations with neighbours and or the West, whereas court has an other view. Under the constitution of the country and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision. They are entrusted to the executive. The Government "is perfectly entitled to treat any undermining of its policy to protect this country from international terrorism as being contrary to the security interests of this country".  Even democracies are entitled to protect themselves, and the executive is the best judge of the need for international co-operation to combat terrorism and counter-terrorist strategies. This broader context is the backcloth of the Govt/Interior Ministry's statutory power to hold someone accountable in the interests of national security whether it is by ensuing a criminal trial or in case of aliens a deportation process.

In the case of Hafiz Saeed it seems that he is released more on procedural than substance. India too failed to give concrete in time evidence of his indirect involvement in alleged ‘Bombay attacks’ and used it to flag it to maximum for political advantage rather than jointly combating terrorism. Both countries have been or at war on intelligence fronts so political advantage is more of interest than to respect each other’s policy, judicial system and or executive mechanism. Its a matter of framing a policy and standing by it. Executive needs to stand on its legs and fight as a test case of their right to dictate a policy, whereby judiciary’s role to do a balancing exercise whether interest of national security requirements are met vis vis the interest of individual. The new judicial policy operative from 1 June 2009 provides that cases relating to preventive detention should be decided as early as possible following the procedure as envisaged in the law . However, Hafiz Saeed's early release was a foregone conclusion as earlier Punjab inspector general of police (IGP), Shaukat Javed, had told The media (News on December 13, 2008), that the leaders, placed under preventive detention, would be let off soon if no evidence about their involvement in the Mumbai terrorist attacks was received from India

Lawyers are of the onion that no one could be restricted in its liberty without any lawful reason. If someone is detained, a case has to be registered against him under the law. Hafiz Saeed's counsel maintained throughout that no evidence whatsoever was produced before the court. The government had invoked the Article 10 of the Constitution while arresting the JuD leadership following the Mumbai attacks and after the adoption of the UN resolution. The adoption of the constitutional procedure though enabled the government to keep Hafiz Saeed and others behind the bars for months without any charge and evidence, it bound the government to produce before the court the grounds for such arrests. Such a detainee, has the right to go to the high court to challenge his detention. Preventive detention means confinement of a person to stop him from committing an offence.

Under the Clause 5 of the Article 10 of the Constitution of Pakistan 1973, an authority issuing the order for preventive detention of a person is bound to communicate to him within 15 days the grounds on which the order has been made, and will afford him the earliest opportunity of making a representation against the order. But no such grounds were ever conveyed to Hafiz Saeed and others as per lawyers. The Clause 4 of the same Article 10 clearly says that such a detention will not exceed beyond three months unless the appropriate review board has, after affording the detainee an opportunity of being heard in person, reviewed his case and reported, before the expiration of this period, that there is, in its opinion, sufficient cause of such detention. Unless a review board orders release of the detainee after finding no sufficient grounds for his detention, within a period of 24 months commencing on the day of his first detention in pursuance of an order made under a law providing for preventive detention, no person will be detained in pursuance of any such order for more than a total period of eight months in the case of a person detained for acting in a manner prejudicial to pubic order and 12 months in any other case.

To me, in any national security case the Home Secretary in province and at centre is entitled to make a decision to detain, and in case of aliens try or deport by examining the case on the whole against an individual and then ask whether on a global approach that individual is a danger to national security, taking into account the executive's policy with regard to national security, and by taking into account what security agencies think of that threat (ISI/MI/IB). When this is done, the cumulative result may establish that the individual is to be treated as a danger, although it cannot be proved to a high degree of probability or beyond reasonable doubt that he has performed any individual act which would justify this conclusion. Even if released, if executive maintains that the individual poses a real threat to ‘national security’ directly or indirectly then an alternative method of controlling orders, electronic tagging, curfew and safe houses options may be considered to deter those activities amounting to ‘involvement in terrorist activities’.

The European Court also considered the argument that decisions on national security were essentially a matter for the executive (Govt/Interior Ministry) and that it would contrary to principle to allow an independent tribunal/judge to substitute its own decision on such matters for that of the responsible minister. It acknowledged, at p 468, para 127, that article 5(4) of the European Convention on Human Rights 1950 :"does not guarantee a right to judicial review of such breadth as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the 'lawful' detention of a person according to article 5(1)."The refusal of the House to re-examine the executive's decision that having nuclear bombers was conducive to the safety of the state was based purely upon the separation of powers. Viscount Radcliffe said, at p 798:"[W]e are dealing with a matter of the defence of the realm and with an Act designed to protect state secrets and the instruments of the state's defence. If the methods of arming the defence forces and the disposition of those forces are at the decision of Her Majesty's ministers for the time being, as we know that they are, it is not within the competence of a court of law to try the issue whether it would be better for the country that that armament or those dispositions should be different."

Here it is important to remember that the individual is still subject to law of the land (if Pakistani citizen) and in case of an alien (a foreign fighter) subject to immigration control and has not been charged with a specific criminal offence. It is the danger which he constitutes to national security which is to be balanced against his own personal interests. This seems to me to underline the need for the ‘judicial arm’ of government to respect the decisions of Govt/Interior Ministry/ Ministers of the State on the question of whether support for terrorist activities by individuals constitutes a threat to national security. The dynamics of the role of the Govt/Interior Ministry, charged with the power and duty to consider what amounts to ‘national security’, irresistibly supports this analysis. Executive (at centre & provinces) are all required to do a balance between interest of state and that of the individual, however there is occasions sometimes when ‘public safety’ and ‘public good’ takes preference. In those times Courts are required to administer justice ensuring that due process of law is provided to those individuals who are victims of the assessment under which these decisions operate, though through no fault of someone, but due to the atmosphere in which these heavy decisions are made as margin of making mistakes is very little and each mistake cost many lives. While I conclude, the tragic events of 11 September 2001 in New York , 7/7 in UK and hundreds of suicidal attacks in Pakistan reinforce compellingly that no other approach is possible. Pakistani law needs to be amended too, in the context of missing persons cases, there needs to be an open and lawful policy and decision making process whereby a threat is perceived as a threat rather than mere technical reason to detain or prosecute someone administratively. We are at war with outer world and within, so as crystal we are in our policy framework, the response will be befitting too and results will be promising.

Finally I personally feel that Lord Woolf, former Lord Chief Justice and then Master of Rolls observed, at p 1251, paragraph 34 at Court of Appeal [2000] 3 WLR 1240, went nearer to modern day threat of national security when he said :"Whatever may have been the position in the past, increasingly the security of one country is dependent upon the security of other countries. That is why this country has entered into numerous alliances. They acknowledge the extent to which this country's security is dependent upon the security of other countries. The establishment of NATO is but a reflection of this reality. An attack on an ally can undermine the security of this country." We are living in a fragile world where terrorists are slaughtering the enemy to intimidate and woo the security apparatus. They are using ‘suicidal teenager bombers’ and ‘human shields’ to discourage those who intercept and has the potential to defeat them. Collective wisdom with powerful political and economic package with education is the key to deter this menace from multiplying. Islamic block needs to show solidarity to pave way for collective wisdom harnessing a dialogue between ancient civilisations to avert collision. Little late, we will be inundated with their threats.  

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Note (Profile of writer): Amjad Malik, is a life member of Supreme Court Bar Association of Pakistan and Lahore High Court Bar and is a Solicitor-Advocate of the Supreme Court of England and Wales and has done LLM on national security law.