Blast From the Past: Sid Harth
Volume 26 - Issue 01 :: Jan. 03-16, 2009
INDIA'S NATIONAL MAGAZINE
from the publishers of THE HINDU
BOOKS
The taming of Kalat
A.G. NOORANI
A fascinating study of a sub-nationalism in which tragedy and farce
are closely intertwined.
KALAT was Pakistan’s Hyderabad. Both princely states refused to accede
to the Union of the country to which they properly belonged. Both
received Mohammad Ali Jinnah’s legal advice that on the lapse of
British paramountcy on August 15, 1947, they become independent
sovereign states. There were standstill agreements in both cases.
Hyderabad had to be brought into the Indian Union by armed action on
September 13, 1948.
The British were dismayed at Jinnah’s legal advice to Kalat. It was
never independent, nor was Hyderabad. The Khan of Kalat acceded to
Pakistan only on March 20, 1948, when his intrigues with New Delhi and
Kabul were exposed. However, in mid-July the Khan’s brother returned
from Afghanistan where he had fled with a lashkar (army). Pakistan’s
army had to engage them. Unfortunately, successive governments
neglected Balochistan and its sensitive part, Kalat, fuelling Baloch
nationalism.
The book is an excellently researched study of that early phase until
1955. Policies pursued thereafter were no wiser, especially by Z.A.
Bhutto and Zia-ul-Haq. The author is a German political scientist who
did laborious field work in Sindh, the North West Frontier Province
and the Iran-Pakistan transborder region of Balochistan. He is
currently engaged in research on the evolution of Baloch nationalism
and the role of the province’s rich natural resources as cause and
target of the current conflict in the region. President Asif Ali
Zardari, significantly, remarked that Balochistan has the first claim
on its resources.
The Baloch ethnic identity’s “transformation” to Baloch national
identity is an arresting phrase. It can be used for upsurge in any
region. The pioneer in the field was Innayatullah Baloch’s book The
Problem of Greater Balochistan: A Study of Baloch Nationalism (1987)
published in Germany. The author had worked at the University of
Heidelberg. The Khan of Kalat, Mir Ahmad Yar Khan, also wrote his
memoirs, Inside Baluchistan, which were published in 1975. Once the
States of Kharan, Makran and Las Bolo acceded to Pakistan, his
territory was diminished. The ones he considered to be his feudatories
acted independently. Worse, he lost the precious seaboard.
The author holds that the roots of the present crisis lie in the
period from 1930 to 1955 and portrays the evolution of Baloch national
identity as a reaction to the territorial, political and cultural
inclusion on the part of the All India Muslim League and the Pakistan
movement. He argues that the birth of the Baloch nation was a
consequence of the birth of the state of Pakistan in August 1947 and a
result of the annexation of the Baloch proto-state of Kalat by that
new state in March 1948. “Annexation” is surely a wrong word to use.
It reveals the author’s approach, if not, indeed, his pro-Baloch bias.
There was nothing inevitable about the troubles that arose. They were
the result of bad policies. The author has delved into the archives of
Balochistan extensively. The narrative is written in a lucid style.
In March 1952, the government of Pakistan announced the merger of
Kalat and the other three States in a “Balochistan States Union”.
After a promising start, the Union was dissolved and all four States
were merged with Pakistan. Their rulers were pensioned off.
Unlike the Nizam of Hyderabad, the Khan of Kalat tried desperately to
revive his demand for independence. He failed miserably but served as
Governor of Balochistan from 1974 until his death in 1977.
Pakistan used high-handed methods most of the time to quell unrest in
Balochistan. But the Khan had ceased to be a symbol of popular
aspirations. On June 24, 1963, Nawab Khair Bukhsh Narri complained on
the floor of the National Assembly of Pakistan that “people working
for the Khan of Kalat had gone to the gallows while the Khan himself
had returned, was forgiven and had become a patriot”. This is a
fascinating study of sub-nationalism in which tragedy and farce were
closely intertwined.
http://www.flonnet.com/fl2601/stories/20090116260107400.htm
Volume 26 - Issue 01 :: Jan. 03-16, 2009
INDIA'S NATIONAL MAGAZINE
from the publishers of THE HINDU
COLUMN
Systemic barriers
BHASKAR GHOSE
The bureaucratic system must be radically altered so that it can
respond fast and effectively to the needs of the country.
PTI
NSG commandos after the completion of Operation Cyclone at the Taj
hotel in Mumbai on November 29. The NSG and the three armed forces
have not been able to spend several crores of money that have been
provided for them in their budgets.
FROM time to time Prime Minister Manmohan Singh has stressed how
important it is to reform the system of administration. A number of
committees have been looking at this vital subject, so essential to
the entire developmental process. And now, with the recent terrorist
attack in Mumbai, it has become even more crucial that the system
delivers, and delivers fast.
These are very suitable sentiments and objectives, no doubt; we will
all agree that the bureaucratic system in the country must be
radically altered to respond fast and effectively to the needs of the
country – security needs, developmental needs, and everything else.
But not very long ago, in the middle of December, a month after the
carnage in Mumbai, a leading newspaper carried an astonishing story.
It said that the National Security Guard (NSG) and the three armed
forces – the Army, the Air Force and the Navy – have not been able to
spend several crores of money that have been provided for them in
their budgets.
It leads one to wonder just what is going on. On the one hand, there
are strong professions of the government’s determination to improve
our security system, provide the armed forces, the NSG, the Border
Security Force (BSF) and other paramilitary units with state-of-the-
art equipment and facilities for training and increase their strength.
On the other hand, these units seem to be unable to spend whatever
money they have been given. It is not just worrying but alarming.
This one issue should serve as an opportunity for the government to
find out immediately what the problem is. But the sad fact is that the
government knows what it is, as do some of us who were former members
of the bureaucracy. It would be natural for the Prime Minister, who is
also the Union Finance Minister, and for Home Minister P. Chidambaram,
who was until recently the Finance Minister, to feel obliged to defend
and perpetuate the system and try to work around the problem instead
of confronting it head on.
This is the pernicious system that exists in the government: each
Ministry has a set of financial advisers, who have a set of officers
working under them at different levels. For instance, in the Ministry
of Defence, the chief financial adviser is called the Financial
Adviser (Defence Services) and has the rank of a Secretary to the
government. Working under his supervision is a battery of additional
financial advisers looking after different aspects of the Army, the
Air Force and the Navy.
In theory, they are there to examine all financial proposals and
“advise” the Ministry on what the most prudent decisions should be. In
fact, they are the most formidable barriers to all projects, proposals
and schemes. In every Ministry, it is these officers who send back
files with “queries” that are often ridiculous. Most Secretaries would
agree that their work would be much quicker if the financial advisers
were exactly what their designations make them out to be – people to
advise the Secretary who then decides what is to be done.
I have personally been involved in several cases where the financial
advisers have gone much beyond their brief and turned down proposals
and projects because they did not think they were “suitable” or
“appropriate”. In the Ministry of Defence, proposals for the
acquisition of new weapons systems end up being discussed by the
vendors and the financial advisers directly, with the Ministry
officials concerned being mere spectators. These discussions can be
tortuous and it is doubtful whether they help the government at all.
Both the Prime Minister and the former Finance Minister may think that
they are essential to good governance. With due respect to their
formidable intellectual abilities, it must be pointed out to them that
if they do try to defend the system they will be preserving the ills
that afflict the system at its very root, and they will be party to
this pernicious hobbling of a system that can, freed of these
shackles, actually deliver.
The reason is simple enough. Financial advisers have different
priorities. They are more concerned that procedures are followed and
that certificates of various kinds provided. If they have a doubt
about the acquisition of, say, a radar system, they will send the
entire proposal back. The proposal has to be then explained to them in
simple terms because they are not professional officers of the armed
forces. They are officers from the Indian Defence Accounts Service.
But it is they who decide, finally; it is they who clear proposals,
which are often incredibly complex. And they do so not after months
but, often, after years of having “queries” answered, endless
discussions and internal confabulations.
I am mentioning the dilemma of the defence forces but know that this
applies to all other Ministries as well. Perhaps on not quite the same
scale but in essence the rituals are the same. The key to all this is
the fact that financial advisers are not really answerable to the
Secretaries of the Ministries under whom they are supposed to
function; they are actually answerable, all of them, to the Secretary
(Expenditure) in the Ministry of Finance, who can overrule a Secretary
in any Ministry without compunction. If that poor Secretary takes the
matter up with his Minister, so does the Secretary (Expenditure), and
finally the Finance Minister gives his verdict, which in virtually
every case is supportive of what the Secretary (Expenditure) says.
Small wonder, then, that even the NSG’s funds cannot be spent. One has
only to ask and one will find out that many of the issues are, to use
bureaucratese, “pending with Finance”. The Finance Department people
are, of course, adept at fending off such accusations and their usual
tactic is to say that the proposal came to them very late or in an
incomplete form. And then the blame game begins, diverting attention
from the original proposal.
Is it so difficult for the government to trust its own Secretaries?
Why does it trust those in the Ministry of Finance and these financial
advisers but not officers who have served for over three decades with
distinction (before becoming Secretaries)? This is the first change
that is essential; without this, one can say with confidence that if
our defences are found to be wanting, and are penetrated, and our
paramilitary forces, indeed our armed forces, are found to be ill-
equipped in the event of another major terror attack, it will be
because the most basic reform on governmental functioning was not
done. That is, the conversion of the financial advisers to being what
they need to be, advisers to the Ministry. Nothing more.
Keeping a system honest needs something quite different. Rather than
hobble them with a plethora of rules and procedures, other means can
be devised to determine who has his or her hand in the till. It can be
done, even if it means the occasional invasion of an official’s
privacy.
What one is urging is that the basic mindset towards the system of
governance change. The assumption should not be that everyone is
dishonest or habitually irregular in their financial decisions. The
assumption must be that they are honest and they will be as correct as
the financial advisers. And then put in place a method of determining
who the thieves and corrupt are. If one starts here, then the rest
will follow. And the country as a whole will benefit substantially.
http://www.flonnet.com/fl2601/stories/20090116260109000.htm
Volume 26 - Issue 01 :: Jan. 03-16, 2009
INDIA'S NATIONAL MAGAZINE
from the publishers of THE HINDU
COLUMN
Getting tough
PRAFUL BIDWAI
The UPA government is caving in to right-wing pressure to violate
invaluable citizen freedoms and create an oppressively muscular
“barbed-wire” state.
PTI
Mediapersons at the Taj Mahal hotel on November 29.
INDIA has never before witnessed such a grossly excessive, malign and
toxic role of a media gone berserk in shaping the state response to a
major event as it did during the coverage of the Mumbai attacks and
their aftermath. The main features of the coverage stand out
unmistakably: hysterically irresponsible reporting on the tragedy,
premature disclosures that forewarn the attackers and hamper police
action, loutishly strident exhortations to wage war on Pakistan (“E
nough is Enough!” being the most sober slogan), and the use of
brainless celebrities to promote viciously communal, militaristic and
bellicose agendas in place of sober and thoughtful reflection on the
sombre developments.
The impact of the early Indian media coverage of Mumbai was electric
in Pakistan. It instantly united large numbers behind the government,
in particular the Army, and set the tone for an equally partisan role
on the part of the Pakistani media. The media in the two countries are
now substituting for politics and genuine public debate to ensure that
their peoples view each other through the prism of hostility. It is as
if the peace process never happened and the two decades spent in
building a cross-border citizen-to-citizen dialogue had gone waste.
The United Progressive Alliance (UPA) government continues to be
disproportionately influenced by our media, especially the electronic
media, which now leads much of the print media by the nose. While the
UPA has not allowed its external agenda to be wholly dominated by
media propaganda in favour of a hard line towards Pakistan,
domestically, it has capitulated to right-wing campaigns for what
might be called a comprehensive new super-tough national anti-terror
regime, comprising beefed-up security, new agencies, force
modernisation, bloated military and paramilitary budgets, and new laws
that give the government arbitrary powers to intrude into the
citizen’s life and violate his or her fundamental rights with
impunity. The media is also engaged in providing an ideological
rationalisation for the new anti-terror order.
This media campaign has combined with Bharatiya Janata Party (BJP)
pressure on the UPA and forced it to adopt a macho, national-
chauvinist, “to-hell-with-civil-liberties” stance to show that it has
the will to fight terrorism. This explains the deplorable haste with
which it pushed through, virtually without debate, two tough laws
pertaining to counter-terrorism, which erode India’s federal
governance structure and seriously infringe the citizen’s liberties.
The National Investigation Agency (NIA) Act establishes a new
organisation to investigate acts of terrorism and also offences
related to atomic energy, aviation, maritime transport, sedition,
weapons of mass destruction, and left-wing extremism. Significantly,
it excludes right-wing extremism of the Hindutva variety, which has
taken a far higher toll in India than left-wing naxalism. It is
unclear whether the NIA will secure the cooperation of other existing
agencies or face turf battles and sabotage. Unlike the Central Bureau
of Investigation (CBI), which needs the consent of a State government
before investigating crimes there, the NIA will supersede State
agencies. This is a serious intrusion into the federal system. The
NIA, and the special courts set up under the Act, will be vulnerable
to political manipulation and abuse by the Centre.
The second law, the Unlawful Activities (Prevention) Amendment Act
(UAPA), radically changes criminal procedures, extends periods of
police custody and detention without charges, denies bail to
foreigners and reverses the burden of proof in many instances. The Act
will turn India into a virtual police state. It brings back the
discredited Prevention of Terrorism Act (POTA), except for admitting
confessions made to a police officer as evidence.
The UPA abrogated POTA in 2004 in response to innumerable complaints
of abuse against Muslims and application to offences not connected
with terrorism. But it retained all other tough laws and amended the
UAPA to increase punishment for terrorism and harbouring/financing
terrorists, make communications intercepts admissible as evidence and
increase detention without charges to 90 days from 30 days. Despite
numerous recent terrorist attacks, the UPA firmly rejected the BJP’s
demand that POTA be re-enacted. But now, it has shamefully caved in to
the demand – with an eye on the general elections.
The UAPA contains a range of draconian clauses, including a
redefinition of terrorism, harsh punishment such as life sentence or
death, long periods of detention and presumption of guilt in many
cases. The redefinition includes acts done with the intent to threaten
or “likely” to threaten India’s unity, integrity or sovereignty.
Under this catch-all provision, the police can arrest, search and
seize the property of anyone whom they have “reason to believe from
personal knowledge, or any information by any person… or any articles
or any other thing...” are involved in such acts. Even rumours and
baseless suspicion fit this description. Also covered are attempts to
kidnap constitutional and other functionaries listed by the
government. The list is endless.
Under the Act, an accused can be held in police custody for 30 days,
and detained without charges for 180 days. This is a travesty of
constitutional rights. Even worse is the presumption of guilt in case
there is a recovery of arms, explosives and “substances of a similar
nature”, suspected to be involved in the acts. The police routinely
plant arms and explosives and create a false record of recovery. The
punishment ranges from three or five years to life imprisonment. This
shows the government has not applied its mind.
Under the Act, there is a general obligation to disclose “all
information” that a police officer thinks might be relevant. Failure
to disclose information can lead to imprisonment for three years.
Journalists, lawyers, doctors and friends are not exempt from this
sweeping provision, which presumes guilt on mere suspicion.
Besides making telecommunications and e-mail intercepts admissible as
evidence, the Act also denies bail to all foreign nationals and to all
others if a prima facie case exists on the basis of a first
information report by the police.
POTA and its predecessor, the Terrorist and Disruptive Activities
(Prevention) Act (TADA), were extensively abused. They targeted the
religious minorities, specifically Muslims. Some 67,000 people were
arrested under TADA, but only 8,000 were put on trial, and just 725
were convicted. Official TADA Review Committees found its application
untenable in all but 5,000 cases.
The two new laws will increase Muslim alienation from the Indian state
given that they are the principal victims of India’s recent anti-
terrorism strategy. Many Muslims are also pained at the alacrity with
which the laws were passed – in contrast with the UPA’s failure to
enact the promised law to punish communal violence.
A draconian law with nasty political consequences is bad enough. What
we are now witnessing is worse. This is India’s slide towards a
national security state, one which obsessively pursues militaristic
approaches to all conflicts and social problems and whose guardians
derive their legitimacy from security- and military-based criteria and
the creation and maintenance of a permanent state of fear, which would
allow all manner of draconian measures to be rationalised.
Pakistan and Israel are relatively evolved national security states.
The United States has long had many national security state
characteristics, which were further strengthened after September 2001.
All national security states try to achieve “security” for their
citizens by citing a real or imagined “enemy”, to combat whom it is
necessary to use Gestapo-style methods, occupy foreign territory or
impose the most repugnant restrictions on the movement of those
(Palestinians) viewed with suspicion and presumed to be pro-terrorist
unless proved otherwise.
The UPA must rethink and reject the national security state idea.
Equally, it must reform and refine its external approach, in
particular its strategy to get Pakistan to act decisively against
terrorist groups based on its soil. Early on, the government rightly
made distinctions between four different actors in Pakistan – the
civilian government, the Army, the Inter-Services Intelligence (ISI)
and the militants – and decided to act in ways that would support
moderate forces and isolate extremists.
However, in recent official statements and briefings, these
distinctions have been eroded, and in the concern to signal that the
military option is not closed, there is an emphasis on the culpability
of Pakistan’s “state actors”, without citing adequate reasons for it.
If India is to reach out to and build alliances with moderate opinion
in Pakistan, it must modify its approach and use bilateral and
multilateral diplomacy creatively. This will undoubtedly entail
accepting Pakistan’s offer of intelligence-sharing and joint
investigation into the Mumbai attacks.
Surely, Indian police agencies have now gathered enough evidence to
feel reassured that sharing it with Pakistan will not lead to a
sabotage of the investigations. It is absurd to share the evidence
with U.S. and British agencies but refuse to share it with Pakistan.
That would be the best way of tying Pakistan into a co-binding
relationship and getting it to accept its responsibility to go after
the networks involved in the Mumbai attack, itself a grave crime
against civilians on Indian soil.
http://www.flonnet.com/fl2601/stories/20090116260109900.htm
Volume 26 - Issue 01 :: Jan. 03-16, 2009
INDIA'S NATIONAL MAGAZINE
from the publishers of THE HINDU
COLUMN
Terror trackers
R.K. RAGHAVAN
The National Investigation Agency will have to show its mettle quickly
if it is to justify its creation.
R.V. MOORTHY
Home Minister P. Chidambaram in New Delhi on December 11.
HOME MINISTER P. Chidambaram deserves to be complimented for pushing
through Parliament legislation that seeks to create the long-awaited
National Investigation Agency (NIA) to investigate major terrorist
attacks. Another Bill that was pressed alongsi de proposed amendments
to the Unlawful Activities Prevention Act (UAPA) in an endeavour to
deter those designing to commit terrorist acts. Members of the two
Houses, especially those in the Opposition, deserve praise for not
indulging in quibbling and semantics and allowing the two Bills to
sail through.
The enormity of the Mumbai attacks possibly threw up the consensus
that was so badly required by a nation battered by terrorist attacks
in the past one year. As far as the debate outside Parliament is
concerned, the NIA has drawn few adverse comments, confirming the
general awareness of the need to prosecute terrorists effectively. But
in respect of the changes to the UAPA, opinion is divided.
Human rights groups, including Amnesty International, denounced the
changes proposed (such as a 90-day detention of a terror suspect) as
draconian and opening the floodgate for gross abuses by law
enforcement. I would have been surprised if there had been no such
criticism.
In a way it is good that the Bill is hotly debated. The intensity of
the discussion would serve notice on policemen charged with
investigating terrorism that they should behave themselves and not
indulge in excesses. This is a pious hope that may or may not be
realised.
The background to the creation of the NIA and the amendments proposed
to UAPA is widely known. It is the escalating terrorist violence in
the country that has prompted our lawmakers to wake up from their
slumber and act as they have done now.
For quite some time, nobody in government, either at the Centre or in
the States, seemed to be in control over a deteriorating situation
where terrorists, home-grown and those from across the border, could
strike at will. There was growing scepticism about the ability of the
police force to touch even the fringe of the problem. Public patience
was wearing thin and the Mumbai incidents were the last straw.
Political parties and the government had no option but to do something
dramatic to convey to the electorate that they had every intention to
step in to stem the rot. This explains the flurry of activity one saw
in the past few days including the induction of a new Home Minister in
place of a beleaguered Shivraj Patil, who was apparently being
protected only as a matter of political expediency and not out of any
faith in his abilities.
As for the recent action of the Centre, while the wisdom of making the
terror law more stringent is questionable, unexceptionable is the
decision to set up a new investigating agency for the complicated and
vital task of bringing terrorists to book. Prosecution of terrorists
has been slipshod until now, as demonstrated by the poor rate of
conviction under the Terrorist and Disruptive Activities (Prevention)
Act (TADA) and the Prevention of Terrorism Act (POTA).
All these days, the Centre cited constitutional difficulties – the
fact that “police” and “public order” lie within the law-making
competence of States – as the major obstacle in the way of floating a
new Central agency on the model of the Central Bureau of Investigation
(CBI) and the Federal Bureau of Investigation (FBI) of the United
States. (Not many know that even the CBI is at the mercy of State
governments for consent to function outside Union Territories. For
instance, the CBI may have an office at Shastri Bhavan, Chennai, but
this will be a mere ornamental structure unless the Tamil Nadu
government notifies its consent for the CBI to function in the State
to deal with corruption among public servants working for the Central
government. The CBI has no authority to deal with State government
officials unless a State government conveys its consent or the High
Court/Supreme Court directs it to do so. Even the authority of courts
directing a CBI investigation has been recently challenged, and the
matter is pending in the Supreme Court.)
Now the Centre seems to have found a way to overcome constitutional
constraint to create a national police agency. While there is no
official clarification on this point, it is believed the Ministry of
Home Affairs is banking on item 1 on the Union List, which refers to
“Defence of India and every part thereof including preparation for
defence”, as justification for setting up an anti-terror investigating
body. This is a valid and genuine reason that courts can be expected
to uphold if the matter is taken to that forum.
The salient features of the NIA, as reported in the press, are
• Officers of the NIA to have all powers, privileges and liabilities
that police officers have in connection with investigation of any
offence.
• The police officer in charge of a police station shall, on receipt
of the report of the offence, forward it to the State government,
which, in turn will send it to the Centre.
• If the Centre feels the offence is terror related, it shall direct
the NIA for investigation.
• Provision for transfer of investigation and trial of offences to the
State government with the Centre’s approval.
• The NIA may investigate other offences connected with terror-related
offences.
• State governments shall extend all assistance to the NIA for
investigation of terror-related offences.
• The provisions of the Act with regard to investigation shall not
affect the powers of the State government to investigate and prosecute
any terror crime or other offences.
From what has been attributed to the Home Minister, the Centre’s
objective is to create a lean outfit that will be efficient and
effective. It has the right to pick and choose the cases it will
investigate. And it has the right to be kept informed of every
terrorist incident that occurs in any part of the country. This is
very different from what many of us had believed the NIA would be.
The NIA would handle a very limited number of cases, possibly only
those with a national ramification. Why cannot the CBI be entrusted
with such investigations, instead of opting for a new organisation?
The answer is that while the CBI cannot take suo motu cognisance of an
occurrence in a State, the NIA will not have that disability. How will
an NIA investigation be superior to that of the CBI? This is where the
former will have to show its mettle quickly if it is to justify its
creation. I hope huge investments will be made in the form of manpower
and equipment to make the NIA a crack outfit.
A lot will depend on the initial leadership. Its head, an officer of
the rank of Director General of Police (DGP), will have to be an
outstanding policeman with a proven track record. I am certain that he
will be chosen on merit, and no other consideration will prevail. The
problem will be to find suitable investigators to assist him. Having
headed the CBI, I know the travails of finding the right material.
Officers of the State police will hardly be interested in joining the
NIA. No amount of incentives will do the trick. The perquisites in
States, both legal and extra-legal, are too enormous to be ignored
when an officer is approached to come over to the NIA. The inevitable
geographic dislocation of families of selected officers is another
disincentive in many cases. These two factors work against attracting
the best talent.
The NIA will, therefore, have to set up its own cadre soon by drawing
people from Central police organisations and by direct recruitment.
The latter will unfortunately be raw hands that can prove themselves
only after a few years of training and investigation experience. This
is why I warn against any optimism that the NIA will start delivering
the goods immediately.
At the end of it all, one has to pause and consider why there is so
much discontent with police performance in the area of terrorism. The
whole thing boils down to “intelligence failure” to predict terrorist
strikes such as the one in Mumbai. The common man is no doubt keen
that all those guilty of terrorism be brought to book, but he is more
concerned with prevention as he does not want to be a victim of
explosions set off by terrorists.
Viewed from this perspective, the initial concept of the NIA is a let-
down. For, if the organisation is not responsible for the collection
of intelligence in what way will it make a difference to the existing
situation? If it is only the Intelligence Bureau (IB) and the Special
Branch in the States that will continue to peddle intelligence, they
may have to change themselves extraordinarily to measure up to the
current challenge.
I will opt for a sleek intelligence unit within the NIA, which could
add to current resources. I am perhaps saying the obvious, and the new
NIA Director General will head in that direction the moment he assumes
office.
http://www.flonnet.com/fl2601/stories/20090116260110200.htm
Volume 26 - Issue 01 :: Jan. 03-16, 2009
INDIA'S NATIONAL MAGAZINE
from the publishers of THE HINDU
COVER STORY
Talking tough
JOHN CHERIAN
India has started toughening its position as the diplomatic standoff
with Pakistan continues.
KAMAL SINGH/PTI
External Affairs Minister Pranab Mukerjee at the conference of India’s
ambassadors and high commissioners on December 22 in New Delhi, where
he said India would "take all measures necessary".
THE Indian government has toughened its stance in the diplomatic
standoff that followed the terror attacks in Mumbai. There was a
danger of things getting out of hand after External Affairs Minister
Pranab Mukherjee threatened “to take all measures necessary” in a
marked departure from his earlier stand, when he ruled out the use of
military force against targets in Pakistan. Defence Minister A.K.
Antony also said that no “military action” was being planned against
Pakistan.
The government’s position seems to have hardened after Pakistan
President Asif Ali Zardari stated in the third week of December that
New Delhi was yet to provide convincing proof of the role of Pakistan-
based actors in the terror attacks. Another irritant was the Pakistan
government’s “volte-face” on Maulana Masood Azhar of the outlawed
Jaish-e-Mohammed. Pakistan authorities initially stated that Azhar had
been put under arrest, but a week later Foreign Minister Shah Mehmood
Qureshi made the surprising statement that Azhar was out of the
country and untraceable.
The Pakistan government’s argument was bolstered by India’s reluctance
to share evidence with the international community. Ronald Noble,
chief of Interpol, who visited both countries, said in late December
that New Delhi had not shared any information about the Mumbai attacks
with his organisation. He said that Interpol had not received any
information that would allow him to comment on the accuracy of media
reports about the nationality and identity of the Mumbai terrorists.
He also asserted that it was “not acceptable internationally” for
information to be put in the media and not placed in international
police databases. Noble said that a country like Pakistan, which had
suffered at the hands of terrorists, “needs international support not
international condemnation at such a critical time”.
Influential sections in the Indian establishment seem intent on
whipping up war hysteria. Some observers are of the view that the
jingoistic statements emanating from the upper echelons of the Indian
government may be a ploy to hijack the “terror platform” from the
opposition Bharatiya Janata Party (BJP). General elections are only a
few months away. The policy of “no war, no peace” that was being
pursued by New Delhi immediately after the attacks momentarily took a
back seat as rhetoric threatening fire and brimstone took centre
stage.
Mukherjee has been emphasising since mid-December that the least
Islamabad can do is to extradite those persons New Delhi has accused
of being involved in the Mumbai terror plot and accept that the lone
surviving terrorist, Mohammed Ajmal Amir Imam alias Kasab, was a
Pakistan national. India handed over a letter written by Ajmal Amir to
the Government of Pakistan, in which he requested the assistance of a
lawyer and a meeting with Pakistan’s High Commissioner to India.
Pakistan has refused to confirm that Ajmal Amir is a Pakistan citizen
on the plea that his name does not appear on any voters’ list.
Mukherjee said that President Zardari and his predecessor, General
Pervez Musharraf, had given numerous assurances that Pakistani
territory would not be allowed to be used by terrorists. Addressing a
meeting of heads of Indian diplomatic missions on December 22, he
warned Islamabad that India’s patience was fast running out. He said
India hoped that the international community and Islamabad would take
“effective action” but that it was India that would ultimately have to
deal with the problem.
Prime Minister Manmohan Singh’s timely clarification on December 23
that “nobody wants war”, a significant departure from Mukherjee’s
bellicose statement, has been welcomed by the international community.
A retired Indian diplomat, who held senior posts in the previous
government, was of the view that talk of military action could turn
out to be a risky and counterproductive manoeuvre. He recalled that
the Indian troops massed on the western borders after the December
2001 attack on Parliament House had to be withdrawn after nine months.
A cross-border strike by India has the potential to snowball into a
geopolitical crisis.
FAROOQ NAEEM/AFP
Pakistan Prime Minister Yousuf Raza Gilani with U.S. Senator John
Kerry in Islamabad on December 16. Kerry, the new Chairman of the U.S.
Senate’s powerful Foreign Relations Committee, was in Pakistan to
discuss the Mumbai attacks.
Pakistani society seems to have closed ranks in the face of India’s
tough posturing. The Pakistan Army high command said that it would
respond to any Indian attack within minutes and had placed its troops
on “high alert”. In a speech to the country’s Parliament, Prime
Minister Yusouf Raza Gilani reminded the world that Pakistan was a
nuclear power and if war was “imposed” on the country then “we will
fight it”. He also said that “war is not a solution to these
problems”. His speech came after the American media reported that the
George Bush administration had information that the Indian Air Force
(IAF) was preparing for a possible mission against targets in
Pakistan.
The Global Intelligence Service, Stratfor, based in the United States,
says in its latest report that any Indian attack “most likely would
take the form of unilateral precision strikes inside Pakistani-
administered Kashmir, along with special forces action on the ground
in Pakistan proper”. The report claims that New Delhi is keen to send
a message to Islamabad that it will no longer tolerate attacks on its
territory from either rogue or state-sponsored elements. The lack of
an adequate response, the report said, would, from India’s point of
view, only encourage militants and invite a domestic political
backlash.
However, if the latest developments are an indication, New Delhi, at
least for the time being, seems content to leave the job of launching
pre-emptive strikes to its closest strategic ally, the U.S. On
December 22, American drones once again struck inside Pakistani
territory, killing a number of civilians. Most of the Lashkar-e-Taiba
and Jaish militants had shifted base to the tribal areas bordering
Afghanistan by 2005, following a crackdown by Musharraf’s government
under American pressure. According to the Pakistan journalist Syed
Salim Shehzad, Lashkar militants trained by the India cell of
Pakistan’s Inter-Services Intelligence (ISI) have introduced the
latest guerilla tactics in Afghanistan and in Pakistan’s tribal areas.
The targets were North Atlantic Treaty Organisation (NATO) forces in
Afghanistan and the Pakistan Army in the North and South Waziristan
areas.
U.S. Joint Chief of Staff Mike Mullen was once again in Islamabad
trying to impress upon Pakistan’s political and military establishment
to take expeditious action against militant groups and individuals
named as suspects by India in the Mumbai attacks. The Federal Bureau
of Investigation (FBI) has sent high-level teams to both India and
Pakistan to probe the attacks. Indian intelligence agencies have in
recent years been closely cooperating with the FBI and the Israeli
Intelligence Agency, Mossad, in counter-insurgency and anti-terror
operations. A top U.S. intelligence official, John McConnel, the
Director of U.S. National Intelligence, was in New Delhi in late
December to meet National Security Adviser M.K. Narayanan.
Congress president Sonia Gandhi also added her voice to the rising
clamour for stronger action against Pakistan. At an election rally in
Kashmir, she warned Pakistan of a “befitting reply” if it did not stop
terrorists from using its soil against India. New Delhi has put a
freeze on sporting and cultural links with its neighbour. The Indian
cricket team’s Pakistan tour has been cancelled, and there is no talk
of its being rescheduled. The Pakistan government had assured full
security to the Indian team. However, given that the wounds left by
the Mumbai attack would take time to heal, a postponement was anyway
on the cards.
But the government has not given the Board of Control of Cricket in
India much of a say in the deliberations leading to the decision to
cancel the tour. Observers point out that much of the subcontinent is
embroiled in violence instigated by terrorists of many hues. They
point out that the English team came back to India after the Mumbai
carnage despite the terrorists targeting British nationals. The Sri
Lankan Cricket Board had agreed in principle to tour Pakistan on the
dates that had been earmarked for the Indian team. But in the last
week of December, the Sri Lankan government indicated that the tour
would not take place as scheduled.
Washington is also piling on the pressure on Islamabad. In the third
week of December, it was reportedly conveyed to the visiting National
Security Adviser of Pakistan, Mahmud Ali Durrani, in Washington that
Pakistan’s “shifty and shifting position” on the Mumbai attacks was
not acceptable. Washington has been alleging since the beginning of
the American occupation in Afghanistan that Islamabad has been less
than sincere in its crackdown on militant forces aligned to the
Taliban and Al Qaeda.
U.S. Secretary of State Condoleezza Rice, in a speech to the U.S.
Council of Foreign Relations, said that Pakistan needed to deal with
the problem of terrorists more effectively and that it was not enough
to say that these were “non-state actors”. U.S. officials have been
saying for some time that there is enough evidence pinpointing the
role of the Lashkar-e-Taiba and the Jamat-ud-Dawa in the Mumbai
attacks. The common refrain of senior American and Indian officials is
that the Pakistan leadership is either unwilling or incapable of
taking the actions it has promised against the terrorist groups
operating from its territory.
http://www.flonnet.com/fl2601/stories/20090116260102700.htm
Volume 26 - Issue 01 :: Jan. 03-16, 2009
INDIA'S NATIONAL MAGAZINE
from the publishers of THE HINDU
TERROR IN MUMBAI
Limits of law
V. VENKATESAN & VENKITESH RAMAKRISHNAN
The hasty passage of the new anti-terror laws does not signify an
adequate response to internal security challenges.
ON December 12, 2008, a group of 40 eminent citizens of the country,
including former Prime Minister Inder Kumar Gujral and former Chief
Justices of India V.R. Krishna Iyer and J.S. Verma, wrote a joint open
letter to all politicians emphasising that police reforms were crucial
to address effectively the threats to national integrity. The letter
called for swift reform and urged all politicians to work collectively
towards this end.
Four days later, talking to Frontline, Union Minister of State for
Home Sri Prakash Jaiswal claimed that the United Progressive Alliance
(UPA) government had taken the call in all seriousness and two bills
brought by the Union Home Ministry – The National Investigation Agency
(NIA) Bill, 2008, and The Unlawful Activities (Prevention) Amendment
Bill, 2008 – reflected the government’s resolve to advance meaningful
reforms to fight the threats to national integrity. Jaiswal added that
these Bills were only one of the many steps that the government was
planning.
Undoubtedly, the Minister perceives these bills as significant
initiatives on the internal security front. But do they signify a
concrete movement towards substantial police reforms? Or at least an
adequate response to repeated challenges to internal security? A
closer look at the manner in which the Bills were passed in
Parliament, as well as their provisions, does not result in an
affirmative answer. What stands out in the exercise is an undue haste
to get the Bills passed.
Introduced in the last session of 2008, the two key Bills were passed
within four days of their introduction, without adequate scrutiny or
deliberation. Home Minister P. Chidambaram, who introduced the Bills,
sought the support of members, cutting across party lines, without
convincingly explaining the urgency to enact them. Indeed, he also
indicated that there might be a need to make changes in the Bills when
he said that the government would take a relook at the laws in
February and, if necessary, consider the amendments proposed by the
Opposition.
Government under pressure
What then was the justification for hurrying through the Bills? By all
indications, the government seems to have been spurred by an urge to
come up with a part-response to the cynicism among a section of the TV-
watching middle classes in urban India about the political class in
general following the failure to prevent the Mumbai attacks. The
government seems to see these laws as ways to correct the public
perception of not having done enough to combat terrorism. Chidambaram
himself hinted as much when he told the Rajya Sabha: “People are
looking at us. As I speak today, people are watching us. People will
watch us on television tomorrow. People are asking, ‘Is the Parliament
of India the sentinel on TV? Is the Parliament of India an appropriate
sentinel to guard our liberty?’”
While these words point towards the real pressures faced by the
government, the formal premise put forward to bring in the Bills is
the all-party meeting of November 30. The meeting had called for
urgent, effective measures to strengthen internal security. But, by
the Home Minister’s own admission, these are not preventive but
punitive laws. “These laws spring into action only after the crime is
committed or when an attempt is made to commit a crime or in one or
two cases, preparation is made to commit a crime. The jehadi terrorist
is not deterred by these laws,” he told the Rajya Sabha, adding that
these Bills sought to meet the objectives of speedy and efficient
investigation, fair and speedy trial, and deterrent punishment.
Although the government wanted a quick enactment of the Bills to
project a picture of unity in Parliament, both the Congress and the
Bharatiya Janata Party (BJP) engaged in an ugly spat on which party
deserved greater credit for the harsh provisions.
The BJP’s prime ministerial candidate, Lal Krishna Advani, and Arun
Jaitley accused the Congress of being apologetic about enacting the
two laws. They claimed that the Unlawful Activities (Prevention)
Amendment Bill was modelled on the Prevention of Terrorism Act, 2002,
enacted by the National Democratic Alliance (NDA) government their
party led. Abhishek Manu Singhvi and Kapil Sibal of the Congress
retorted that it was a Congress government that had enacted POTA’s
precursor, the Terrorist and Disruptive Activities (Prevention) Act
(TADA), 1985, which was allowed to lapse in 1995.
Key changes
The Unlawful Activities (Prevention) Act, 1967, was originally
conceived to fulfil the need to install reasonable restrictions, in
the interests of the country’s sovereignty and integrity, on the
freedom of speech and expression; the right to assemble peaceably and
without arms; and the right to form associations or unions.
Parliament amended the Act in 2004, following the repeal of POTA. This
amendment changed the original character of the Act completely by
making it a piece of specifically anti-terror legislation, permanently
on the statute books, unlike TADA and POTA, which had sunset clauses.
TADA was initially meant for two years but was extended every two
years until it was allowed to lapse in 1995. POTA, which originated
through an ordinance on October 24, 2001, was to remain in force for
three years. The sunset clause implied a periodical review by
Parliament of the draconian laws and therefore meant an in-built
safeguard against abuse.
The latest amendment, coming as a knee-jerk reaction to the Mumbai
attacks, could not have been expected to consider the relevance of a
sunset clause either.
The 2008 amendment makes certain key changes. A new section, 43D, has
increased the maximum period of custodial interrogation of a terror
suspect to 180, a significant increase over the 90 days allowed under
Section 167 of the Code of Criminal Procedure (CrPC). The reasons
cited for this are not convincing.
Arun Jaitley told the Rajya Sabha that the longer remand period would
help to gather evidence internationally by affording more time to send
letter rogatories and seek the extradition of wanted criminals. But
then why subject Indian suspects to such long detention when their
interrogation can be completed in 90 days? Singhvi’s reasons were even
less convincing. Terrorists inspired fear, he said, and this led to
slow investigation, and witnesses were more difficult to find.
Sitaram Yechury of the Communist Party of India (Marxist) pointed out
in the Rajya Sabha that in the United States no citizen could be
detained for more than two days without charges being framed.
“In Canada, suspects cannot be detained for more than one day. In
Russia, the maximum period permissible for detention of a suspect is
five days. France limits the period to six days, while Ireland
restricts it to seven days. In Turkey, this period can last only up to
seven and a half days. In the U.K. [United Kingdom], the House of
Lords returned the proposal to increase the period under detention
from 26 to 48 days,” he said. The government could not convincingly
explain the glaring distinction between India and other countries with
regard to the period of custodial interrogation. The 90-day period was
perhaps the longest in the world; doubling this period just to appear
stringent makes no sense.
Presumption of guilt
Another new provision, Section 43E, introduces the presumption of
guilt of an accused, an obnoxious provision that was also present in
POTA. Under this Section, if it is proved that arms or explosives or
any other substances specified in Section 15 were recovered from the
possession of the accused and there is reason to believe that such
arms or explosives or other substances of a similar nature were used
in the commission of an offence, the court shall presume, unless the
contrary is shown, that the accused has committed such offence. Our
criminal justice system is based on the presumption of innocence until
proved guilty.
Here is what Ashwani Kumar, Minister for Commerce and a lawyer by
training, had to say in the Rajya Sabha about this specific provision:
“It is a cardinal rule of jurisprudence that a person is presumed to
be innocent until proved to be guilty. I do not think that that has
been reversed. All it says is that if a person is found with a weapon
of destruction in his possession, the onus would shift temporarily,
for that limited purpose, upon him to prove that that cannot lead to
an inference of guilt against him. In criminal jurisprudence, the onus
of proving the guilt of the accused is invariably, and always, on the
prosecution. That principle has not been negatived in this Bill… It is
a case of … stolen goods; if stolen goods are found in somebody’s
possession, it is for him to prove or establish how these goods came
into his or her possession in the first place.”
Observers found it paradoxical that members of the Treasury Benches
who are also established Supreme Court lawyers, specifically, Singhvi
and Sibal, argued that the Supreme Court decisions in the Kartar Singh
and PUCL (People’s Union for Civil Liberties) cases validating TADA
and POTA were suspect. They made this point while justifying their
decision not to make confessions made before a police officer
admissible as evidence in court, though TADA and POTA allowed this.
But by that logic, extended detention could also be suspect. In any
case, the recent amendments have the potential of unsettling a lot of
what is today taken for granted in the realm of Supreme Court
precedents on anti-terrorism law, experts say. Judges in several
countries have taken a dim view of such provisions.
Independent experts say any judge with integrity and a commitment to
the oath taken to uphold the Constitution would be careful about
convicting someone of a serious offence based only on “circumstantial
evidence” and reverse onus provisions.
So, in the Zuma case (1995) in South Africa, the challenged provision
stated that an accused person who wanted to retract a confession made
before a magistrate would have to establish that the confession was
given involuntarily.
This provision might seem quite reasonable and pragmatic, but the
South African Constitutional Court unanimously struck down the
provision as infringing upon the presumption of innocence. This
decision was endorsed in subsequent cases in 1996 and 2002.
The language of Section 43E (b) is vague. What does “any other
definitive evidence suggesting the involvement of the accused in the
offence” mean? Who decides what is “definitive evidence”? The judicial
test for such provisions usually is whether the reversal of onus
enables a person who is innocent to be convicted. Experts fear that
innocent people or those with only an unknowing, tangential connection
to the offence can end up being convicted of direct complicity.
While the legislator may want to draft things broadly with a view to
giving investigators and prosecutors the maximum latitude, this is
precisely the type of situation that breeds abuse of emergency powers,
and judges are quite alive to this. Faced with extraordinary
circumstances, judges are more willing to give latitude, but they
would prefer, in order to maintain the rule of law, to have narrowly
crafted exceptions, experts caution.
Federal agency
The NIA Bill creates a federal investigating agency to supersede the
State police in the case of investigation and trial of offences under
certain Acts specified in its schedule. The first information as to
the commission of the offence will be registered in the police station
and then forwarded to the State government. The State government shall
forthwith forward it to the Central government, which may, in view of
the gravity of the offence and other relevant factors, direct that the
case be taken up with the NIA. Otherwise, the case remains with the
State agency. The NIA may associate the State agency with the
investigation, if it is expedient to do so. The NIA may also return
the case to the State for investigation.
Special courts
The Act provides for the constitution of a special court to try the
offences investigated by the NIA. The Chief Justice of the High Court
will nominate the special judge, and the case is to be tried on a day-
to-day basis. Appeals against the orders of the special court will lie
with the Division Bench of the High Court and the appeals should be
disposed of within three months.
The Acts mentioned in the Schedule include the Atomic Energy Act,
1962; the Anti-Hijacking Act, 1982; the Suppression of Unlawful Acts
Against Safety of Civil Aviation Act, 1982; the SAARC Convention on
(Suppression of Terrorism) Act, 1993; the Suppression of Unlawful Acts
Against Safety of Maritime Navigation and Fixed Platforms on
Continental Shelf Act, 2002; the Weapons of Mass Destruction and Their
Delivery Systems (Prohibition of Unlawful Activities) Act, 2005; the
Unlawful Activities (Prevention) Act, 1967; and offences under Chapter
VI of the Indian Penal Code (Sections 121 to 130) dealing with
offences against the State and Sections 489-A to 489-E of the IPC
(dealing with counterfeit currency notes).
Suggestions from the Left
Yechury suggested amendments to the two Bills to address concerns
about possible abuse. He suggested that the UAPA and the IPC sections
be brought under a separate schedule in the NIA Bill so as to make the
association of State governments in the investigation and trial of the
offences mandatory. In the UAPA (Amendment) Bill, he suggested
amendments to restore the period of custodial interrogation to 90
days, presumption of innocence of the accused, and deletion of the
provision seeking to punish anyone failing to furnish information
relating to terrorist offence with imprisonment for three years or
with a fine or with both (Section 43F [2]).
D. Raja of the Communist Party of India suggested the deletion of the
entire clause enabling presumption of guilt of the accused. The Rajya
Sabha rejected all the amendments before the passing the Bills.
However, Chidambaram’s statement on a probable relook at the laws in
the next session makes it clear that the debate will continue.
Participating in the debate in the Lok Sabha, Sibal said that the two
Bills needed to be followed up with measures within the security
establishment and the police machinery aimed at genuine reform. He
said the police needed to be “empowered” and, thereby, the people.
Sibal had apparently taken his cue from the letter written by eminent
citizens, which had noted that central to police reforms was avoidance
of undue and illegitimate political interference in policing,
improving recruitment procedures and training, enhancement of
infrastructure and developing systems of accountability. But it is
evident that the government has a long way to go to achieve these
objectives.
http://www.flonnet.com/fl2601/stories/20090116260103000.htm
Volume 26 - Issue 01 :: Jan. 03-16, 2009
INDIA'S NATIONAL MAGAZINE
from the publishers of THE HINDU
TERROR IN MUMBAI
Chabad encounter
LYLA BAVADAM
in Mumbai
Interview with Sharon Galsurkar, who worked with the security forces
in the operation to free Nariman House.
COURTESY: SHARON GALSURKAR
SHARON GALSURKAR (SECOND RIGHT) with ZAKA team members, cleaning up
the Chabad house after the operation.
SHARON GALSURKAR knew Rabbi Gavriel Holtzberg and his wife Rivka from
the time the couple came to live in India six years ago. He is a
community programmer with the Organisation for Rehabilitation and
Training, a Jewish outreach society. He was closely involved with
assisting the Army and the police during the operations to flush out
the terrorists from Nariman House, drawing them a sketch of the layout
of the interiors, liaising with the security forces and the Israelis,
and interacting with local residents who pointed out various
approaches to the building. When Sandra Samuel and baby Moshe escaped,
he took them home for a while so that the child could be “in a relaxed
atmosphere”.
Three days after the carnage, in which 11 people, including two
terrorists, died, Galsurkar and a ZAKA team went in to collect the
belongings of the dead and to clean up. (ZAKA, an abbreviation for
Zihuy Korbanot Ason, which means Identification of Victims of
Disaster, is an Israeli voluntary organisation. It works along with
law enforcers in response to terrorism, accidents or disasters.) Their
task included cleaning the blood on the floor, on clothing and on
bedsheets. Galsurkar described this as the “most horrible work I have
ever done in my life” .
He spoke to Frontline about these experiences and his concerns as an
Indian Jew. Excerpts:
You took Sandra Samuel and baby Moshe home after they escaped. What
was her account to you?
Sandra and Zakir [Hussein, the cook] were in the kitchen on the first
floor. They were preparing dinner – some beans and chicken. Sandra
said that the rabbi and two other men and Rivka were in the synagogue
on the second floor, which is also a library. And the child was
sleeping on the fifth floor. Two women were on the fourth floor…at
least that’s where they were found…. Sandra didn’t say where they were
when the gunmen entered. Sandra said she came out when she heard
firing. They fired in her direction and she and Zakir ran into the
kitchen and shut the door. They both hid in a storeroom behind some
fridges. That’s how they survived the grenade too. There was firing
all through the night. All the glass was smashed, so they could figure
out people’s movements because of their footsteps on the glass. Around
1.30 that morning she heard Rivka crying. She cried very loudly for
about 25 minutes or half an hour. And then she stopped and after that
they only heard gunfire and explosions.
In the morning Sandra said both she and Zakir decided to take a
chance. They came out and she heard Moshe crying on the second floor.
She said she could not go without the child… so they both climbed
slowly up to the second floor… this was very daring of them… Zakir
kept watch on the landing and Sandra picked up the child. He was on
the floor with blood splattered all over him. Then they slowly climbed
downstairs and came out of the house.
She said the rabbi and his wife were unconscious and needed help.
Yes, that’s what she said, but judging by the amount of blood she
described I felt they were gone. I am a trained social worker. I know
how people react when they are in trauma and I understand their
reactions. My feeling is that Sandra knew that the rabbi and his wife
were dead. There was just too much blood around for them to still be
alive. I felt that when Sandra said they were unconscious she was
hoping they were still alive. Maybe if she had conveyed her fears to
the police, it might have helped finish the operation earlier.
You worked with the ZAKA team.
Yes, it was quite by chance. It was Friday evening, about one hour
before Sabbath. We have very strict rules during Sabbath, which can be
broken only in life-threatening situations. It was great luck that
before Sabbath we discovered the ZAKA team. They were about six of
them waiting in one of the lanes near the Chabad. We offered our help.
By 8.30, the operations were over. Three bodies were taken out – the
rabbi, Rivka and Bentzion [Chroman, a kosher food superviser]. One
body had already been sent to JJ [Hospital] and one of us went there
to stop the post-mortem [forbidden under Jewish religious law]. The
other bodies couldn’t be brought out because there were hand grenades
around them. The Army finally exploded eight hand grenades that night.
The bodies were in terrible shape. It took till 3.30 on Saturday
morning to finish the procedures at the JJ mortuary.
The bodies were sent to Pinto’s [mortician who prepared the bodies for
travel]. We read psalms, asked for forgiveness from the rabbi – this
is a ritual we have. On Sunday, we collected the blood-soaked clothes
and bedsheets from the Colaba police station. Then we sorted them out
because they had to be buried with the people they belonged to. On
Monday we got police permission to enter the Chabad house. That is
when I did the most horrible work I have ever done in my life….
picking up blood… it was semi-liquid – it was thick, a terrible stench
came from it when we picked it up. There was the smell of
decomposition all over and our eyes burnt terribly…maybe the Army had
released some gas or something during the operations. We had the right
gear but still…. This is on the fourth floor [shows photograph] – this
is the room where the two women were tied. They were tied together so
that the head of one was at the feet of the other. I don’t know why
this was done.
The floor of the synagogue was covered with blood. Even the material
with which we cleaned the blood was put in with the bodies. We took
away the four Torah scrolls and some religious articles. Nothing was
desecrated but one of the scrolls had a spray of bullets over it.
What were your general impressions while you assisted the security
forces?
The Army and the police did everything they could. Experts may say
that the operation failed, but I saw them working – they took all
risks, they worked hard.
ZAKA was unhappy with them.
That’s because they were thinking from the Israeli perspective. They
face this sort of situation so regularly. Part of their response is
not to waste time. We know our problems. I can’t comment on the
details of the operation, but I know our people were working hard. Our
commandos and policemen were at a range where they could easily have
died. They put their lives on the line – I appreciate that. I salute
them.
What is the Jewish community’s thinking on security now?
As Jews, we believe that whatever has happened has happened for a
reason but this does not stop me from taking security measures. We
have been told to use grills, stronger doors, more fortification,
security personnel. We have asked for security from the Mumbai Police
and they have given it. One of the things the [Israeli] Consulate
pointed out, especially to the Chabad [some months ago], is that the
door should have more than one guard and it should be kept closed. A
CCTV was also advised. If the Chabad had proper gates and entry rules,
it wouldn’t have been easy for the terrorists to get in. They had this
idea of open doors and open house – the wrong people took advantage of
it.
Maybe it was contradictory to the rabbi’s beliefs? An open house
cannot have closed doors.
It was about his trust in God. It was not contradictory because we
Jews are supposed to pray and also to make effort. We have to work on
our security and ask God for his blessings on this. That’s also Jewish
philosophy. We also have a law that says we must not risk our lives.
So, if by keeping my door open I risk my life I should keep it closed.
There were people who insisted that they had seen the gunmen before,
that they had lived in the Chabad house itself. There was one woman
who was evacuated from a neighbouring building at about 1 a.m. on
November 27. She had glimpsed the gunmen while the attack was on and
said she had definitely seen them before.
I heard they’d stayed in the chawl from where they could see the
Chabad house. It was not easy to stay in the Chabad house. If any new
person wanted to stay there, the rabbi would check their passports and
ensure that they were Jewish because that is not an open guesthouse
for anybody. So he was careful about that. These people were aware
that they were potential targets. But perhaps the rabbi would not have
expected it to happen here and in this way.
I wish the rabbi had done two things. One, that he had interacted more
with the Colaba police station. Even they were not aware of the Chabad
house. And I wish he had interacted with his neighbours. He didn’t go
out of his way to interact with the neighbours… as Indians we are used
to having relations with our neighbours. But he came from a different
culture.
Why do you wish this?
When we spoke to the neighbours the day after the attack, some of them
actually thought that the Chabad was responsible for what was
happening. If they knew what Chabad was about they would never have
said that. But I can understand the rabbi’s point too – being orthodox…
ultra orthodox actually… he lived in his own world. The locals did not
even know that this was a Chabad house. The first time I was looking
for the place none of them could help me.
Have you been back to talk to the local people?
Not yet, but I will go back. I got the feeling that they did not want
the Chabad to come up there again. I want to talk to them, explain
what Chabad is all about, tell them that you don’t abandon your
neighbours because they were attacked by someone else.
It is interesting you say this because while the operation was on the
local residents were very sympathetic and said they would not mind
having them as neighbours once this was over. But when the question
was put to them again afterwards, they were not so sure because they
were shaken by the violence of the operation.
This is why we want to talk to them. We will ask them: “Are you going
to say the same things to the Taj, to the Oberoi… will you tell them
they should not be here because they were attacked?” They attack, they
kill and they have the “success” of the Chabad being thrown out from
the neighbourhood.
If local residents are adamant, then maybe the Chabad should not be in
the same area. If they are not going to support it, then how will the
Chabad house thrive? [Silent for a while.] They were good people… the
rabbi had a spiritual aura.
http://www.flonnet.com/fl2601/stories/20090116260103300.htm
Volume 26 - Issue 01 :: Jan. 03-16, 2009
INDIA'S NATIONAL MAGAZINE
from the publishers of THE HINDU
ESSAY
Pakistan’s burden
A.G. NOORANI
International law imposes an unqualified obligation on Pakistan to
punish the conspirators behind the Mumbai attacks.
AP
Hafiz Mohammad Saeed, the Amir of Jamat-ud-Dawa, led the Lashkar-e-
Taiba until December 2001.
A LEADERSHIP that neglects public opinion in pursuit of a foreign
policy dooms itself to defeat. A leadership that is slave to public
opinion betrays the national interest and renders itself impotent. All
the more so if it is led by ignorant TV anchors and the chatterati
they assemble on TV channels seeking to roast their chestnuts in the
fires of a national tragedy. It happened in 1999 at the time of the
hijack to Kandahar of Indian Airlines Flight IC-814, in 2001 during
the Agra summit, and was repeated after November 26 with a singular
lack of sense, scruple or decency. Criticism has centred on the
panelists, but the anchors who invited them to suit their own elevated
tastes have gone scot-free.
All this had an impact on diplomacy. Pakistan’s initial reaction to
the attacks on November 26 was laudable. When the two Prime Ministers
spoke on the phone on November 28, it was natural for Manmohan Singh
to invite the Director-General of the Inter-Services Intelligence
(ISI), as it was natural for Yousuf Raza Gilani to agree and for the
ISI to object. President Asif Ali Zardari offered to send “a
Director”. The government spoke of “a representative” of the ISI. The
crucial question surely is the degree of cooperation in the
investigation. Sending the intelligence chief was too much to expect
of any state, all the more so given the history and status of the
Pakistan Army. Within moments of the announcement, Lt. Gen. Asad
Durani, former ISI chief, expressed his dismay. Someone of lower rank
should go, the DG following him, if need be. He was right.
There was little understanding of that in India, given the immaturity
of some, and even less in Pakistan of the outrage in India and the
gravity of the crime. But now the electronic media went berserk.
Harinder Baweja reported after a trip to Pakistan. “Senior journalists
in Pakistan admitted that briefings from the ISI changed the post-
Mumbai discourse. Reacting perhaps to the loud, jingoistic demands on
Indian television channels, for action against Pakistan, the ISI told
a select group of journalists that India had in fact ‘summoned’ their
chief. Jamat-ud-Dawa Amir Hafiz Sayeed – with a clear nod from his
handlers – appeared on one news channel after another, making the same
points, that India’s list of 20 most wanted, which also includes him,
was old hat, that India was playing the blame game without evidence,
that India had its own band of ‘Hindu terrorists’ and India should
give freedom to Kashmir and end the matter once and for all. The leak,
soon after, of the hoax call, purportedly made by External Affairs
Minister Pranab Mukherjee to President Zardari, sealed the debate –
India-bashing was back in business. The jingoism overtook the more
important debate of the threat Pakistan itself faced from terror
networks flourishing on its soil” (Tehelka, December 20, 2008;
emphasis added throughout).
It was the media’s foolish charge against Pakistan of “backing out”
that fouled the atmosphere. Some Pakistani commentators and
politicians needed little provocation to foul it, anyway.
In his speech in the Lok Sabha on December 11, Mohammed Saleem of the
Communist Party of India (Marxist) remarked that in 2001 the media
followed the government on Operation Parakram. “But now it is the
media which is leading the way and wants the government to follow it.”
It was absurd to accuse Pakistan of “backing out” and futile to expect
it to hand over any of its nationals to India. Like the European
Convention on Terrorism, the SAARC (South Asian Association for
Regional Cooperation) Regional Convention on Suppression of Terrorism
gives a choice to the state to which a request for extradition is
made. It must either extradite the offender on its soil or “submit the
case without exception and without delay to its competent authorities
so that prosecution must be considered” (Article IV).
On this, Pakistan has been consistently and grossly culpable. This has
led India to suspect, with good cause, that its demand for evidence is
made only to find fault with the evidence.
Obligation on Pakistan
In his article in The New York Times on December 8, President Asif Ali
Zardari said: “Supporters of authoritarianism in Pakistan and non-
state actors with a vested interest in perpetuating conflict do not
want change in Pakistan to take root.” Only Pakistanis can have such
motives. The “non-state actor” is a national who acts independently of
the state, unlike the “stateless” one who has no nationality.
Zardari’s description is apt. But he seems not to realise that in law
this imposes an unqualified obligation on Pakistan to punish those
Pakistani nationals, an obligation recognised in all works on
international law.
Those Pakistanis have been identified by the media in Pakistan,
notably Dawn and Geo News TV (both on December 12). Mohammed Ajmal
Amir is a Pakistani citizen. On December 14, Britain’s Prime Minister,
Gordon Brown, identified his affiliation. “We know that the group
responsible for the Mumbai attacks is the Lashkar-e-Taiba.”
AP
British Prime Minister Gordon Brown with Pakistan President Asif Ali
Zardari in Islamabad on December 14, 2008. Brown asserted that the
Lashkar was responsible for the Mumbai attacks.
We owe a huge debt to the erudite Chief Justice of India, Justice K.G.
Balakrishnan, for raising the issue – even if it be in error. Speaking
at a conference in New Delhi on December 13, in the presence of the
Prime Minister and a distinguished gathering of lawyers and judges
from abroad, Justice Balakrishnan censured the media first and, next,
proceeded to lay down the law.
His remarks, reported in The Hindu of December 14, bear quotation in
extenso. “In the absence of bilateral treaties for extradition or
assistance in investigation, there is no clear legal basis for
international cooperation in investigating terrorist attacks. The
pursuit of terrorists alone could not be a justification for
arbitrarily breaching another nation’s sovereignty. Yet another
practical constraint that has been brought to the fore with the Mumbai
attacks has been the question of holding governments responsible for
the actions of non-state actors. While one can say that there is a
moral duty on all governments to prevent and restrain the activities
of militant groups, the same is easier said than done.”
These remarks offend every single rule in the book. First, they were
made on a matter of great sensitivity, which is the subject of current
diplomatic exchanges. Secondly, they were not really germane to the
topic of the conference, namely, terrorism in the context of the rule
of law and human rights, on which he sensibly warned against wanton
disregard of human rights. Thirdly, there was no occasion for the
excursion. Lastly, his remarks were in gross and egregious error.
It is one thing to say that in the absence of bilateral treaties for
extradition a national cannot be extradited. But even Pakistan does
not contend that there is no duty to render “assistance in
investigation”. On the contrary its leaders repeatedly, profusely
offer such assistance. But the CJI lumps extradition with
investigation and confidently asserts that “there is no clear legal
basis for international cooperation in investigating terrorist
attacks”. This, before a distinguished international gathering, at a
time when the world’s eyes are upon us, and when the people are crying
for redress. What was the provocation for the obiter? As grossly
erroneous is his denial of a legal duty on the “governments
responsible for the actions of non-state actors”. He amplified: “While
one can say that there is a moral duty on all governments to prevent
and restrain the activities of militant groups on their soil, the same
is easier said than done.”
ICJ rulings
Was he unaware of the United Nations’ resolutions on the subject and,
indeed, of the Security Council’s decisions that very week? He seems
to be ignorant of a landmark ruling of the International Court of
Justice that is cited in every textbook for undergraduates in law –
the Corfu Channel Case between Britain and Albania (1949) (ICJ Reports
4:22). The court ruled that it is “every state’s obligation not to
allow knowingly its territory to be used for acts contrary to the
rights of other states”. The court is concerned with law, not
morality.
Another important ruling fortifies it. On June 27, 1986, the
International Court of Justice ruled inter alia that by supporting
anti-government forces in Nicaragua, the United States was in breach
of its duties under customary international law. In view of the
importance of this ruling, it is appropriate to set out here extracts
from the authoritative official report of the judgment (International
Court of Justice Report 1986; page 14).
The court observed: “There appears now to be general agreement on the
nature of the acts which can be treated as constituting armed attacks.
In particular, it may be considered to be agreed that an armed attack
must be understood as including not merely action by regular armed
forces across an international border, but also the sending by or on
behalf of a state of armed bands, groups, irregulars or mercenaries
which carry out acts of armed force against another state of such
gravity as to amount to (inter alia) an actual armed attack conducted
by regular forces, or its substantial involvement therein. This
description, contained in Article 3, paragraph (g), of the Definition
of Aggression annexed to General Assembly Resolution 3314 (XXIX), may
be taken to reflect customary international law. The court sees no
reason to deny that, in customary law, the prohibition of armed
attacks may apply to the sending by a state of armed bands to the
territory of another state, if such an operation, because of its scale
and effects, would have been classified as an armed attack rather than
as a mere frontier incident had it been carried out by regular armed
forces.” The obligation is greater if the offenders are sent by the
State. It, however, exists even if they act without the state’s
consent or knowledge. It is elementary.
This was not an enunciation of new law but affirmation of established
old law. The subject had been raised as long ago as 1934 in connection
with the assassination of the Yugoslav monarch King Alexander at
Marseilles by certain terrorists. Yugoslavia formally accused the
Hungarian government, before the League of Nations, of tacitly
conniving in the assassination inasmuch as it had knowingly allowed
the major preparations for the deed to be carried out on Hungarian
territory. In the course of the settlement of this dispute between the
two nations, the League of Nations Council affirmed that two duties
rested on every state: (1) to neither encourage nor tolerate on its
territory any terrorist activity with a political purpose; (2) to do
all in its power to prevent and repress terrorist acts of a political
character, and for this purpose to lend its assistance to governments
which request it.
A great authority, Edwin M. Borchard, wrote: “A long line of cases has
established certain qualifications upon the non-liability of the
government for the wrongful acts of private individuals. These consist
in certain manifestations of the actual or implied complicity of the
government in the act, before or after it, either by directly
ratifying or approving it, or by an implied, tacit or constructive
approval in the negligent failure to prevent the injury, or to
investigate the case, or to punish the guilty individual, or to enable
the victim to pursue his remedies against the offender. The claimant
ordinarily has the burden of proving the negligence of the
government…. The failure of a government to use due diligence to
prevent a private injury is a well-recognised ground of international
responsibility…. A more frequent basis of governmental liability is
the failure, after reasonable opportunity, to bring the offenders to
justice. Incidental to this ground of liability is the inadequate
punishment of guilty individuals, negligently permitting them to
escape, or an inexcusable delay in investigating the facts.” The test
is not actual complicity. It is “negligence” and failure to exercise
“due diligence”.
One of the most highly respected authorities, Oppenheim’s
International Law, holds that “a state is bound” – in law, that is,
not only in morality – “not to allow its territory to be used for such
hostile expeditions and must suppress and prevent them” (Ninth
Edition, Volume 1, page 394). He adds, “A state also has a duty to do
all it can to prevent and suppress attempts to commit common crimes
against life or property, where such crimes are directed against other
states” (ibid, page 400).
True, all injurious acts cannot be prevented, but a pattern of grave
crimes can be. For “international law imposes the duty upon every
state to exercise due diligence to prevent its own subjects, and such
foreign subjects as live within its territory, from committing
injurious acts against other states” (ibid, page 549).
Pakistan fails test
This then is the test – exercise of due diligence. Pakistan has failed
to meet it. It cannot go scot-free. It is liable to pay compensation
to the victims and India would be justified in claiming it on behalf
of wronged nationals.
Professor Antonio Cassese, an Italian jurist, was Judge and President
of the International Criminal Tribunal for the former Yugoslavia. His
work International Law (Oxford University Press; second edition, 2005)
has been widely acclaimed. He writes:
“In the case of unlawful acts committed by individuals not acting as
de facto state officials, for instance against foreigners or foreign
authorities, the state on whose territory the acts were committed
incurs international responsibility only if it did not act with due
diligence, if it omitted to take the necessary measures to prevent
attacks on foreigners or foreign assets, or, after perpetration of the
unlawful acts, failed to search for and duly punish the authors of
those acts, as well as pay compensation to the victims. In other
words, in the case of violence and other unlawful acts against
foreigners, the state is not responsible for the acts on the
individuals: it is accountable only if its own ‘conduct by omission’
may be proved, that is it failed to act in conformity with
international legal standards.
MOHSIN RAZA/REUTERS
The Jamat-ud-Dawa’s seemingly innocuous educational institution at
Muridke (above) is only the first step to draw recruits for the
training camps in Pakistan-occupied Kashmir.
p>“The US Diplomats and Consular Staff in Teheran case, decided in
1980 by the ICJ, is illuminating. The court divided the Iranian
militants’ attack on the U.S. embassy and consular premises in Teheran
into two phases. In the first stage the attack was carried out by
militants who had no form of official status as recognised ‘agents’ or
organs of the Iranian state. Therefore, according to the court, the
militants’ conduct in mounting the attack, storming the embassy and
seizing the inmates as hostages could not be ‘imputable to the state
on that basis’. Nevertheless, Iran was held responsible in that it
failed to protect the U.S. premises as required by international law.
The second phase started after completion of the occupation of the
U.S. embassy. At this stage the Iranian government was legally bound
to bring to an end the unlawful occupation and pay reparation. Instead
it approved and endorsed the occupation.” That adjudication was part
of an accord. Will Pakistan pay up or submit the dispute to
arbitration?
In the very nature of things direct evidence of culpability will be
hard to secure. In the Corfu Channel case, the ICJ ruled that the
“fact of this exclusive territorial control exercised by a state
within its frontiers has a bearing upon the methods of proof available
to establish the knowledge of that state as to such events. By reason
of this exclusive control, the other state, the victim of a breach of
international law, is often unable to furnish direct proof of facts
giving rise to responsibility. Such a state should be allowed a more
liberal recourse in inferences of fact and circumstantial evidence….
“The court must examine, therefore, whether it has been established by
means of indirect evidence that Albania has knowledge of mine-laying
in her territorial waters independently of any connivance on her part
in this operation. The proof may be drawn from inferences of fact,
provided they leave no room for reasonable doubts. The elements of
fact on which these inferences can be based may differ from those
which are relevant to the question of connivance.” There is a lesser
burden of proof on failure to exercise “due diligence” (Principles of
Public International Law by Ian Brownlie; Oxford University Press;
Sixth Edition, page 428). “Indirect” evidence suffices.
Lashkar’s ‘depredations’
India and Pakistan both inherited Macaulay’s Indian Penal Code, 1860.
It is unlikely that the Code as adopted in Pakistan is radically
different. Section 125 makes it an offence to wage war against “any
Asiatic Power” which is “at peace” with India. Section 126 reads thus:
“Whoever commits depredation, or makes preparations to commit
depredation, on the territories of any Power in alliance or at peace
with the Government of India, shall be punished with imprisonment of
either description for a term which may extend to seven years, and
shall also be liable to fine and to forfeiture of any property used or
intended to be used in committing such depredation, or acquired by
such depredation.”
It is not inapt to characterise the Lashkar-e-Taiba’s attack on Indian
soil, spread over the years, as “depredations”. They have been
documented in the writings of eminent Pakistani authors, and a French
authority on militants who exploit Islam for political ends – Islamist
Networks by Mariam Abou Zahab and Olivier Roy (Hurst & Co., London;
2004); Frontline Pakistan by Zahid Hussain (I.B. Tauris, London;
2007); The True Face of Jehadis by Amir Mir (Mashal Books, Lahore;
2004); and A to Z of Jehadi Organizations in Pakistan by Muhammad Amir
Rana (Mashal; 2004).
There was the attack on the Red Fort in Delhi on December 22, 2000,
and on Parliament House on December 13, 2001 (by the Jaish-e-Mohammed
of Masood Azhar); the Mumbai train blasts in 2006; and now the attacks
of November 26. By the Vienna Convention on the Law of Treaties, the
India-Pakistan Joint Statement constituted a “treaty” and President
Pervez Musharraf’s assurance is legally binding – to “not permit any
territory under Pakistan’s control to be used to support terrorism in
any manner”. True, attempts were made on his life as well, notably, on
December 14 and 25, 2003. They were by “Brigade 313”, a loose alliance
of five bodies, including the Lashkar and the Jaish. That does not
affect the Lashkar’s culpability vis-a-vis India. It shows that it is
a menace to Pakistan as well.
Lashkar-ISI nexus
The Lashkar’s nexus with the ISI is well established. “LeT had worked
in close coordination with the ISI, which also provided support to
launch the militants across the border” (Zahid Hussain; page 55). Dr.
Khalid Mehmood Soomroo of the Jamiat-e-Islam asked: “Is there a single
militant training centre in Pakistan which can operate without the
consent of the Pakistan army?” Zahab and Roy also hold the ISI
responsible (page 53).
The Lashkar is a military wing of the Markaz Dawa Wal Irshad (Centre
for Preaching and Guidance). It had two objectives: da’wa (preaching)
and jehad. Its former chief, Hafiz Mohammad Saeed, believed that both
“are of an equal and inseparable importance”. Jehad had been
neglected, he feels.
The training camps are in Pakistan-occupied Kashmir (POK). Zahab and
Roy mention three, the principal one being Um al-Qura [sic] at
Muzaffarabad. Five hundred mujahids are trained every month.
Rana, more authoritative than most, lists five – Muaskar Tayyaba;
Muaskar Aqsa; Muaskar Ummal Qara; Muaskar Abdullah bin Masood; and
Markaz (Centre) Mohammed bin Qasim. The first three are at or close to
Muzaffarabad; the fourth is elsewhere in POK; the last is in Sindh.
Ten thousand men had been trained by 2004. The boss who guided
“Kasab”, Zaki-ur-Rehman Lakhvi, is the Lashkar’s supreme commander.
The Lashkar practises sheer savagery. “Women and babies are killed,
and victims are beheaded and eviscerated” (Zahab and Roy; page 40).
The “two main targets are India and Israel: Hindus and Jews”, Mir
writes (page 110). But Christians are also targeted. The Lashkar vows
to liberate Spain, over which Muslims ruled for 800 years, and “the
whole of India”.
After the attack on the Red Fort, Hafiz Mohammad Saeed told Zahid
Hussain: “The action indicates that we have extended the jehad to
India” (page 58). What was Islamabad doing all this while?
The seemingly innocuous “educational” establishment at Muridke is only
the first step for new recruits before they are sent to the training
camps in POK. There is a 21-day basic course, Dawa Aam, and a three-
month advanced course, Dawa Khas.
In February 1998, Osama bin Laden announced the setting up of an
International Islamic Front for Jihad, of which the Lashkar is a
member. The Lashkar’s reach is global. Its men fought in Iraq, Bosnia,
Chechnya, the Philippines, Eritrea and Somalia (Rana; page 334).
The Lashkar was banned on January 13, 2002, and also put on the United
States State Department’s list of terrorist bodies. Rana records what
happened next: “But Jamat-ud-Dawa had already taken precautionary
measures prior to this. On December 24, 2001, the Ameer of Markaz Dawa
Wal Irshad and Lashkar-e-Taiba, Hafiz Muhammed Saeed, addressed a
press conference in which he announced the change of Markaz Dawa Wal
Irshad’s name and an end to his leadership of Lashkar-e-Taiba. The
same day the State Bank of Pakistan sent out a circular freezing the
accounts of both Lashkar-e-Taiba and Umma Ta’ameer-e-Nau. Professor
Hafiz Muhammad Saeed announced that his organisation’s new name would
be ‘Jamat-ud-Dawa’ and he would remain its chief. The new chief of
Lashkar-e-Taiba would be Maulana Abdul Wahid Kashmiri. Maulana Zakiur
Rehman Lakhvi would be its supreme commander and the organisation
would be limited to Kashmir. Its administration would also be moved to
Azad Kashmir, Jamat-ud-Dawa would provide assistance to Lashkar-e-
Taiba in Pakistan and any donations meant for the latter could be sent
to the former…. Lashkar-e-Taiba is functioning freely in Azad Kashmir,
while many Jamat-ud-Dawa offices in Pakistan are being used as Lashkar-
e-Taiba offices. In an operation against jehadi and sectarian
organisations forty-five men from Lashkar-e-Taiba and Jamat-ud-Dawa
were arrested, most of whom were ordinary workers or mujahids. The
leadership had already moved to Azad Kashmir” (page 328). As Zahid
Hussain remarks, the new Jamat “was just a cover to avoid
international scrutiny” (page 59).
When Pakistani Foreign Minister Shah Mehmood Qureshi speaks of
charitable work by the Jamat, he imposes a strain on credulity. The
money goes for warfare. Amir Mir points out that “in practical terms,
no step had ever been taken to dismantle or even disarm the
Lashkar” (page 97). Rana lists its 48 networks in Pakistan and five in
POK, complete with the name of the chiefs and the addresses (pages
340-2).
The Lashkar is a menace to Pakistan’s democracy and also to India.
President Zardari and some of his colleagues persist in a state of
denial. Zardari performed a somersault after his New York Times
article of December 8 – only a little over a week later, in his
interview to the BBC and to an Indian TV channel. Prime Minister
Gilani is wide of the mark when he talks of “defending” Pakistan.
Whoever threatened war, pray? There were no troop movements by India,
unlike the folly of 2001; no threats and no charges. Both Prime
Minister Manmohan Singh and Minister for External Affairs Pranab
Mukherjee have been extremely careful to speak of “elements from
Pakistan”, never of its government. Frankly, what does Islamabad
expect India to do in the circumstances?
We have in Manmohan Singh a Prime Minister who staked his prestige on
the success of the peace process. Pranab Mukherjee questioned
Operation Parakram courageously when few dared to do so. In an
interview published in Indian Express on January 13, 2002, he
criticised the demand that “Pakistan must stop supporting terrorism
and it’s only then we are prepared to talk”. He said: “Surely the
problem cannot be solved by launching a war against the country which
is harbouring the terrorists. We are not in 1914, when an Austrian
prince was killed and Europe fought World War I…. They shouldn’t have
created this war hysteria.”
He is quite satisfied if the culprits are “tried as per Pakistani
laws”. India can try the Mumbai police’s “Kasab” for the crimes he
personally committed, as it did the perpetrators of the Mumbai blasts
of March 1993. But that will not affect the conspirators. The charge
is conspiracy to create mayhem. Its leaders, the conspirators, are in
Pakistan. Will Pakistan agree to have a single trial of the surviving
terrorist together with his mentors dwelling in Pakistan? India can
provide the evidence at its end provided Pakistan shares fully the
evidence at its end. Its amour propre will be respected. The trial
will be on its soil, but it will be a real trial, not a farce. It will
be based on shared evidence with Indian officials assisting Pakistan’s
prosecutors in the court trying the conspiracy charge.
That, I fear, is unlikely to happen. More likely, the farce of 2002
will be repeated. This time the U.S. and the United Kingdom will not
be quiescent, nor will India. Islamabad is mistaken if it imagines
that it can ride out the storm and time will heal. A promising peace
process will suffer. The two National Security Advisers, Major-General
Mahmud Ali Durrani and M.K. Narayanan, had a good meeting on October
14. Durrani wrote an excellent book, India and Pakistan: The Cost of
Conflict; The Benefits of Peace. On November 25, the Home Secretaries
met in Islamabad to discuss security. It would be a shame to let the
entire peace process since 2004 go up in smoke. President Zardari must
send a representative of the ISI in a delegation led by a senior
Minister, or Durrani can come. We must devise a fair solution to this
impasse. The alternative to direct dialogue is American intervention.
Lt. Gen Asad Durrani, rightly said: “The U.S. is not an honest broker;
it has interests in both our countries. India always said it did not
want U.S. intervention – now is the time for India and Pakistan to
cooperate with each other and keep that intervention out. We can do
this ourselves” (Tehelka, December 13, 2008).
Nawaz Sharif, a former Prime Minister who initiated the peace process
in 1997, gave sound advice to his country on December 11: “Pakistan
should seriously engage India. We should invite them and we should go
to India to take a look at the evidence [in the Mumbai attacks]. We
should do whatever is possible to help India and combat terrorism
jointly. The blame game is not in favour of Pakistan and India.”
Quite needlessly, Pakistan’s pronouncements propound a “chicken or
egg” dilemma. On December 14, President Zardari said Pakistan could
not “come up with proof earlier” than India but “we are
investigating”. Prime Minister Gilani said the matter could be pursued
“once” India provided the evidence. However, Pakistan had begun its
own investigations into the Lashkar. Would Pakistan be lacking in
evidence if the criminals had not struck in Mumbai?
India can possess evidence only of (a) the actual physical attacks and
(b) their perpetrators. Identifying their leaders and instigators is a
matter of inference from the evidence collected in Mumbai and, indeed,
the Lashkar’s proven and well-established record. By the world court’s
tests, that evidence is enough to warrant India’s demands on Pakistan
to furnish further evidence about the mentors of these criminals.
Pakistan alone can collect and provide evidence of the conspiracy
which was hatched on its soil. Pranab Mukherjee has left it with the
option of a trial in Pakistan. A farcical trial would be an insult.
India can try the man in its custody. Pakistan alone can hold a
credible trial of his handlers. Each side can provide the other with
evidence bearing on the trial on its territory.
Pakistan must act on Nawaz Sharif’s advice. It would be a shame to
wreck the most promising peace process that India and Pakistan have
known in recent decades.
There is a way out of the impasse. International law suggests India
can give Pakistan evidence confined strictly to the nationality of
Ajmal Amir. Once it does that the onus shifts unavoidably on Pakistan
to provide evidence of his fellow conspirators and their deeds over
the years. India’s evidence will be based on admissions in Pakistani
and foreign media, besides the evidence in its own possession. Once
Pakistani nationality is proved, Pakistan acquires all the obligations
that international law imposes on it. Pakistan will have to explain
how its national was able to mount such an attack on Indian soil and
provide the names of his conspirators, his training camp, and the name
and working of the organisation that promotes such activity.
http://www.flonnet.com/fl2601/stories/20090116260108400.htm
Volume 26 - Issue 02 :: Jan. 17-30, 2009
INDIA'S NATIONAL MAGAZINE
from the publishers of THE HINDU
TERROR IN MUMBAI
Enemies within
A.H. NAYYAR & ZIA MIAN
Pakistan's failure to confront Islamist militants is a threat to
itself, its neighbours and the rest of the world.
ANJUM NAVEED/AP
A Pakistani student at an anti-U.S. and anti-India demonstration in
Islamabad on December 3, 2008.
THE murderous assault on Mumbai by Islamist militants, at least some
of whom were from Pakistan, has exposed once again the grave danger
that radical Islamist movements pose to Pakistan, its neighbours and
the rest of the world. The urgent challenge now is for Pakistan and
its neighbours, together with the international community, to work
together to confront the risk of Pakistan spiralling into chaos and
collapse.
Ten years ago, the political thinker and activist Eqbal Ahmad wrote
that "conditions for revolutionary violence have been gathering in
Pakistan since the start in 1980 of the internationally sponsored
jehad in Afghanistan". He argued that "revolutionary violence in
Pakistan is likely to be employed by religious and right-wing
organisations which have not set theoretical or practical limits on
their use of violence". He then warned that Pakistan "is moving
perilously toward a critical zone from where it will take the state
and society generations to return to a semblance of normal existence.
When such a critical point of hard return is reached, the viability of
statehood depends more on external than internal factors."
Pakistan's leaders have failed for a decade to heed this warning.
Sadly, the recognition of the need to act against the Islamist
violence that now imperils Pakistan has come not from the terrible war
that jehadi groups have unleashed on state and society, wreaking havoc
from remote border areas to the heart of the capital city, targeting
both the powerful and the powerless. It has come from external
pressure. The Americans demanded action against the Islamists
following the attacks of September 11, 2001. The attack on India's
Parliament in December 2001, and the military crisis that followed,
generated new demands for action. The 2005 attacks on London's
underground system and buses triggered further pressure. The list is
long. The assault by Islamist militants on the people of Mumbai in
November 2008 is only the most recent, and it is unlikely to be the
last.
Pakistan's western neighbours have also suffered. The Afghan Taliban,
who fled the United States invasion, found sanctuary in the border
areas of Pakistan. They now organise their resistance against U.S. and
North Atlantic Treaty Organisation (NATO) forces in Afghanistan from
the tribal areas and the province of Balochistan. The Afghan
government has demanded that Pakistan do more to halt these attacks.
Iran sees itself threatened by Pakistan-based militants also. Islamist
militants of the radical Sunni group, Jundallah, based in Balochistan,
are said to be involved in attacks on Iran, including a recent suicide
bombing. Seymour Hersh has claimed Jundallah is supported by the U.S.
as part of its covert war against Iran. Iranian officials have
complained that Pakistan has not been cooperating in efforts to
counter Jundallah.
All these indicators point in the same direction: Pakistan's failure
to confront Islamist militants is a threat to itself, its neighbours
and to the world.
Two-headed monster
The threat facing Pakistan is broad and deep. There is on the one hand
the armed Islamist groups such as Lashkar-e-Taiba (LeT), its parent
organisation Jamat-ud-Dawa (JuD), and similar Pakistani groups, many
originating in the Punjab but with a presence in towns and cities
across the country. They are radical Islamist nationalists with the
goal of turning Pakistan into a fundamentalist Islamic state. They are
opposed to the democratic process. Created by the Pakistani state as a
proxy army to wage war with India over Kashmir, these groups oppose
any peace process with India and seek to heighten the conflict. They
see the U.S. and its allies as a threat to MACROBUTTON ViewFootnotes
( their ambitions. Then there are the Taliban militants in the
tribal areas on the Pakistan-Afghanistan border. These are essentially
local religious warlords who have established theocratic rule in their
respective areas of influence, with unheard of brutality and
barbarism.
While each Pakistani Taliban group has its own base in the respective
tribal agency, the groups have organised themselves into the Tehrik-e-
Taliban-e-Pakistan (Taliban Movement of Pakistan). They are inspired
by the Afghan Taliban, which was created by Pakistan in the 1990s as a
proxy army to achieve Pakistani military and political ambitions in
Afghanistan. These groups have given sanctuary to the Afghan Taliban
and Al Qaeda forces that fled Afghanistan after the U.S. invasion.
They now fight alongside them against the U.S. and its allies in
Afghanistan. They too consider themselves Pakistani nationalists.
In the midst of the crisis triggered by the attacks on Mumbai,
Baitullah Masud, the leader of Tehrik-e-Taliban-e-Pakistan, offered to
have his men "fight alongside the army", even under Pakistan Army
command, if India were to attack. The Pakistani Taliban militants
offered a ceasefire in the tribal areas, and a Pakistani military
spokesman described the militants as "patriotic".
These two movements, which Pakistan now needs to confront, are not
necessarily separate. They represent two heads of the same monster.
Many fighters in both groups were spawned in the madrassas and have
been nurtured and sheltered by Pakistan's mainstream Islamist
political parties and missionary orders. The first generation of these
groups – from the key leaders and activists to the model for their
organisation, strategy and tactics, politics, and vision of success –
were nurtured by the U.S., Saudi Arabia and Pakistan in the war
against the Soviet Union. In recent years, the Punjabi groups have
taken shelter with and provided training to their Taliban brothers in
the tribal areas; they have also given the Taliban groups access to
their networks in the towns and cities of Pakistan. Both groups are
part of an even larger network that includes the Islamist sectarian
militias in the country, hard-line activists in Pakistan's mainstream
Islamist political parties and organisations, and sympathisers in
government institutions and across social classes. Pakistan's
leadership has talked about the danger of the jehadi groups for a long
time. As Prime Minister in 1999, Nawaz Sharif escaped an assassination
attempt; Pervez Musharraf survived at least three attacks; and Prime
Minister Shaukat Aziz survived at least one. But Benazir Bhutto was
not that fortunate. And thousands of ordinary people have been killed,
their names never reported. Regardless, the jehadi groups have endured
and their leaders have flourished.
The government of Asif Ali Zardari claims that the war against the
jehadis is now Pakistan's war (and, for Zardari, a personal war), and
he has promised to wage this war with all the capacities of the state.
But even today, not all in Pakistan seem convinced that confronting
the jehadist movement is an urgent need for Pakistan's survival as a
democratic country. Some hard-line nationalists, and even some on the
Left who are concerned more about defying the imperialist agenda, are
resisting the external pressure to defeat the Islamists.
Some more pragmatic forces believe that Pakistan should accommodate
the world but without directly MACROBUTTON ViewFootnotes
( confronting the jehadist groups. There are also the cynical
strategists. Only very recently, in a popular TV programme, a former
chief of Pakistan's Inter-Services Intelligence (ISI) advocated that
Pakistan secretly support and protect the Pakistani Taliban to
confront NATO forces and counter the increasing Indian presence in
Afghanistan. He suggested that Pakistan deny such support in public.
Confidence game
A brutal confidence underlies Pakistan's continuing commitment to a
strategy of waging war by proxy: the attendant defiant face to the
world and the denial of the terrible violence within. This confidence
is founded on two pillars. The first is the belief in the Pakistan
Army's ability to crush any insurgency if it really decides to do so.
This is, after all, an army that has ruled the country for half its
life and warred against its own people more than once and without
mercy. This conviction was expressed most clearly in General Pervez
Musharraf's statement in 2005 to the insurgents in Balochistan that he
would "sort them out" and that "they won't know what hit them".
This iron fist was evident in the ferocious army action in Bajaur, in
the Federally Administered Tribal Areas, in 2008, where the army used
artillery and helicopter gunships to turn the town of Loe Sam into
what The New York Times described as a "heap of grey rubble". The
intense violence in Bajaur forced hundreds of thousands of people to
flee their homes.
The second source of confidence is Pakistan's nuclear weapons. Many in
Pakistan's army and political leadership believe that these weapons
protect Pakistan from the outside world. Indian restraint during both
the 1999 Kargil War, in which Pakistan sent militants and troops into
Jammu and Kashmir, and during the 2001-2002 standoff after the
militant attack on India's Parliament, is held up as evidence of the
power of Pakistan's nuclear shield. This was evident again after the
Mumbai attacks.
Many in Pakistan expected and braced themselves for some kind of
punitive strikes from India on "terrorist" targets and a possible
reaction from Pakistan. Policy analysts speculated that a military
strike on militant training camps would engender an immediate military
response from Pakistan, which could lead to heightened tensions and
perhaps war. But they were comforting themselves with the belief that
Pakistan's nuclear weapons would deter India from an all-out war.
India's moves to mobilise international demands to force Pakistan to
act, rather than launch an attack itself, offers little solace for the
Pakistani establishment. The United Nations has placed sanctions
against the top leadership of the LeT. Pakistan will be obliged to
seal Lashkar offices, arrest its leadership, and freeze its assets.
The U.N. has also required these actions against the JuD. Pakistan has
acted against the JuD by storming one of its camps, arresting a few
leaders, and locking up its offices. But the LeT, as an organisation,
has in fact remained banned in Pakistan for some years. The leaders of
LeT/JuD, including its chief, Hafiz Mohammad Saeed, were arrested at
the time of the ban but were later released without charge.
The recent arrest of Hafiz Saeed suggests that this pattern will
continue. The New York Times described a local Pakistani police
commander announcing that Hafiz Saeed was under house arrest, confined
to his home, and banned from going outside: "Mr. Saeed emerged moments
later from the mosque across the street." The police commander then
claimed, "I'm just following instructions."
Confronting the challenge
Pakistan may be facing the most crucial moment of its existence. But
its policymakers even now seem unwilling to recognise fully the
dangers and are reluctant to confront them. The struggle becomes more
difficult with each delay, prevarication and subterfuge.
To confront the threat truly, the first challenge is for Pakistanis to
agree that they want to live in a modern, democratic and plural
society. To achieve this goal, Pakistanis must face and overcome the
jehadi movement. However, the resort to indiscriminate and
overwhelming force will only make things worse. It will require,
instead, what Eqbal Ahmad described as "a carefully planned and
methodically executed programme of reform aimed at removing the root
causes of the proliferation of violence in society, and improvement in
the investigative, preventive, and prosecution capabilities of
security and intelligence agencies, and the administration of
justice".
Put simply, to meet the Islamist challenge effectively, the Pakistani
state must finally accept and fully exercise its responsibility to
maintain peace, provide justice, foster democracy and participation,
and make available in an equitable manner the resources necessary for
economic and social development.
Pakistan's neighbours and the rest of the world will need to help
rather than compound the problem. The threat of use of military force
by India, yet more U.S. missile attacks or commando raids into
Pakistan's tribal areas, and deepening or widening of the U.S. war in
Afghanistan, as U.S. military leaders and President-elect Barack Obama
have proposed, will only make things worse.
(A version of this essay first appeared as "Violence without limits
and Pakistan's challenge" in Himal Southasian (www.himalmag.org), and
as "Pakistan and the Islamist Challenge", for Foreign Policy in Focus,
a project of the Institute for Policy Studies (www.ips-dc.org)).
A.H. Nayyar is a Senior Research Fellow at the Sustainable Development
Policy Institute, Islamabad, and President of the Pakistan Peace
Coalition, a national network of peace and justice organisations.
Zia Mian directs the Project on Peace and Security in South Asia at
the Programme on Science and Global Security, at Princeton
University's Woodrow Wilson School for Public and International
Affairs.
http://www.flonnet.com/fl2602/stories/20090130260202700.htm
Volume 26 - Issue 02 :: Jan. 17-30, 2009
INDIA'S NATIONAL MAGAZINE
from the publishers of THE HINDU
TERROR IN MUMBAI
Measured steps
VENKITESH RAMAKRISHNAN
India’s strategy is to compel the Pakistan government to follow up the
evidence provided and share the results with it.
AFP
At The Chief Ministers' conference, Prime Minister Manmohan Singh with
(from left) Defence Minister A.K. Antony, External Affairs Minister
Pranab Mukherjee, Home Minister P. Chidambaram and Minister of State
for Home Sriprakash Jaiswal.
THE thrust of the steps taken by the United Progressive Alliance (UPA)
government and the Indian security establishment with regard to the
investigations into and the follow-up on the November terror attacks
in Mumbai has essentially two dimensions. One is strengthening the
internal security mechanisms across the country, ensuring better
coordination among various Central and State agencies, and making
these better prepared to engage the threat of terrorist attacks. The
second is making Pakistan accountable for the actions of the anti-
India terrorists operating from its soil and forcing it to dismantle
these terror outfits.
On both counts, the record of the UPA government and the security
establishment headed by the Union Home Ministry has been a mixed one.
The government has made some progress, but by the admission of its own
political and administrative leaderships, there is a lot more ground
to be covered. The fact that there is a lot of political and
diplomatic tightrope walking to do in both the areas makes the tasks
associated with it all the more weighty.
The perception within the UPA government and the security
establishment is that the two important Bills passed in the last
session of Parliament – The National Investigation Agency (NIA) Bill,
2008, and The Unlawful Activities (Prevention) Amendment Bill, 2008 –
have given a fillip to the efforts to strengthen the internal security
establishment. According to senior officials in the Home Ministry,
steps are afoot to evolve the NIA as an effective agency capable of
taking on the multidimensional security threats faced by the country.
The two-day Conference of Chief Ministers on Internal Security held on
January 6 and 7 in New Delhi was aimed specifically at securing
greater political acceptance to the measures planned under the new
laws. The government did try to stress on developing a unified
approach on issues of internal security at the conference.
However, the meet also reflected the concerns that a number of State
governments have on the two new laws as well as the mechanisms of
implementation that the Home Ministry and the security establishment
are planning on the basis of these laws. The Chief Ministers belonging
to the Bharatiya Janata Party-led principal opposition coalition, the
National Democratic Alliance, asserted unanimously that they would
resist any effort to use the new legislation, particularly the one
that facilitates the setting up of an NIA, to undermine the country’s
federal structure. The manner in which Home Minister P. Chidambaram
coined his “letter of directives” to Chief Ministers following the
Mumbai attacks also came in for considerable criticism.
These developments at the Chief Ministers’ meet made it amply clear
that the Home Ministry and the Central security establishment would
have to proceed with greater understanding of the concerns and
sensibilities of the State governments while advancing new
initiatives.
The operations on the second front – making Pakistan accountable for
the Mumbai strikes and forcing it to act decisively against terror
outfits based on its soil – have been even more cumbersome, especially
in the context of the multidimensional political and military
conundrums that persist within Pakistan as well as its relations with
India. Right from the beginning of the investigations into the Mumbai
attacks, India has been consistently pointing toward the involvement
of Pakistani elements in organising and carrying out the dastardly act
that killed more than 170 people and injured many more.
On its part, Pakistan consistently denied the charge. The Indian
political leadership, including Prime Minister Manmohan Singh,
External Affairs Minister Pranab Kumar Mukherjee, Chidambaram and
Defence Minister A.K. Antony have repeatedly highlighted the untenable
nature of Pakistan’s denials and put pressure on Pakistan through
various means.
These included the collation and presentation of evidence on the
attacks to Pakistan and also to the international community. India
handed over a dossier consisting of investigation material and
evidence to Pakistan on January 5. This was essentially in response to
Pakistan’s oft-repeated statement that it could not comply with
India’s demand for action without evidence. But when the dossier was
handed over, Pakistan claimed that the evidence given was legally
flawed. In this context, Manmohan Singh stated at the Chief Ministers’
conference that the Mumbai terrorist attacks “must have had the
support of some official agencies in Pakistan”.
The next day Antony expressed dismay at the fact that Pakistan was not
ready to address seriously the concrete facts placed before it.
Speaking to journalists on the sidelines of a meeting of the Kendriya
Sainik Board, he pointed out that Pakistan was persisting with its
unwillingness to take concrete measures on the evidence provided by
India and act decisively against the terrorist outfits operating from
its soil.
However, commenting on the happenings in Pakistan later during the
day, a senior Home Ministry official told Frontline that the latest
developments could well be the beginning of some steps to address
India’s concerns on the terror outfits. The developments he referred
to include the first-ever formal admission by Pakistan that Mohammad
Ajmal Amir Iman, also known as Kasab, the terrorist captured alive
during the Mumbai attacks, is indeed a Pakistani national.
“They have been forced to admit this after a relatively long period of
obfuscation. Given the pressures of Pakistani politics, there could be
many more flip-flops on this and related matters, but we will have to
see it as the first tangible result of the incessant pressure that
India has built up both bilaterally as well as through the
international community following the Mumbai attacks. The initiatives
relating to this are based on a clear policy that stresses on
methodical collation of facts on the attacks as well as the background
of the players involved in them, the forceful presentation of the same
before the international community and the communication of strong
political messages to Pakistan on the basis of this. In doing so, the
country’s political leadership has taken care not to fall for
adventurist urges too,” said the official.
AMIRUDDIN MUGHAL/REUTERS
In the foreground, the madrassa on the outskirts of Muzaffarabad in
Pakistan-occupied Kashmir from where Pakistani security forces
arrested Lashkar-e-Taiba commander Zaki-ur-Rehman Lakhvi on December
7. He is one of the suspected plotters of the Mumbai attacks.
However, a day after these developments in Pakistan, it was still not
clear whether the leadership of the UPA government or even the
security establishment as a whole shared the view that Pakistan’s
admission on Kasab signalled a turnaround in that country’s approach
to terror outfits targeting India. But it was clear that the
leadership of the ruling coalition as a whole agreed with the policy
parameters being followed in the investigation of the Mumbai attacks
and the manner in which Pakistan was being confronted on the issue.
Talking to Frontline, a senior Minister belonging to a non-Congress
party in the UPA said: “The involvement of elements stationed in
Pakistan in the Mumbai attacks has emerged clearly out of the
investigations. The dimensions of the attacks also point towards the
backing the attackers could have received from certain official
agencies in that country. This context had given rise to impassioned
calls, including from sections of the political class and the media,
to go in for military action against Pakistan or at least in Pakistan-
occupied Kashmir [POK]. It is to the credit of the UPA government that
it has not fallen for such misplaced jingoism, which could ultimately
be self-defeating.”
The Minister also pointed out that Pakistan’s reactions to Indian
initiatives relating to the investigations had escalated the situation
at least on two occasions in December, but India was able to keep
things under control.
A senior Home Ministry official corroborated the Minister’s view.
According to the official, India’s primary objective in the context of
the investigations into the Mumbai attacks was to expose Pakistan’s
Inter-Services Intelligence (ISI) for its role in organising terrorist
strikes in India.
The Minister pointed out that the ISI had an important role in
evolving and putting into operation a military policy to use jehadi
terror to subvert not only India but also legitimate political forces
within Pakistan. “Such an expose of the ISI would benefit not only
India and other countries in the subcontinent but also the legitimate
political forces in Pakistan,” he said. “But the present democratic
government in Pakistan has shown that it is more susceptible to
political pressures of a jehadi variety than to its own democratic
credentials.”
The Minister sees Manmohan Singh’s assertion of January 6 that the
Mumbai terrorist attacks “must have had the support of some official
agencies in Pakistan” essentially as a manoeuvre to force the Pakistan
government out of these internal pressures. In his view, this tactic
would compel Pakistan to investigate properly the material provided by
India, follow the evidence wherever it may lead, share the results
with India, and help the natural course of justice.
Even as these manoeuvres are appreciated and hopes expressed on their
basis, it remains to be seen how far they will be successful. And
above all, the UPA leadership needs to guard against the adventurist
streak it has identified in sections of the media and the political
class.
http://www.flonnet.com/fl2602/stories/20090130260203000.htm
Volume 26 - Issue 02 :: Jan. 17-30, 2009
INDIA'S NATIONAL MAGAZINE
from the publishers of THE HINDU
TERROR IN MUMBAI
Due process
V. VENKATESAN
in New Delhi
There is a strong case under the country’s laws for Kasab’s right to
legal assistance.
MUMBAI MIRROR, SEBASTIAN D'SOUZA/AP
Mohammed Ajmal Amir Iman “Kasab” at the Chhatrapati Shivaji Terminus
where he and his gang killed several innocent people on November 26.
The Bombay Metropolitan Magistrate Court Bar Association passed a
resolution declaring that none of its lawyers would defend Kasab in
the trial court.
DOES Mohammed Ajmal Amir Iman “Kasab”, the lone survivor among the
terrorists involved in the Mumbai attacks, have a right to consult and
be defended by a legal practitioner of his choice? The question has
acquired emotional overtones. To many, treating him as an ordinary
detenu, who is entitled to safeguards guaranteed in the Constitution,
would be a travesty as Kasab and his gang butchered several innocent
persons on November 26 in pursuit of their jehad. The Bombay
Metropolitan Magistrate Court Bar Association passed a resolution
declaring that none of its 1,000-odd members would defend Kasab in the
trial court.
Majid Memon, a senior Mumbai lawyer who had defended some of the
accused in the 1993 Mumbai serial blasts case, spoke in favour of
providing a defence lawyer to Kasab, but he revealed his reluctance to
defend him in court because his case was indefensible. “We have all
seen him committing the crime. His guilt is beyond doubt,” he said in
a newspaper article.
Memon said he knew at least three lawyers who had come forward to
defend Kasab but were threatened and attacked. Consequently, they gave
up their plans. Even a lawyer from the legal-aid panel had decided to
retreat in the face of threat, he said.
The threats and intimidation and the fear among the lawyers have
brought disrepute to the Indian legal tradition. Kasab has approached
the Pakistan High Commission, through a letter, to provide him legal
assistance to face trial in India. Irrespective of what view Pakistan
takes on his request, there is an irrefutable case under the Indian
Constitution for Kasab’s right to legal assistance and the Indian
state’s duty to provide it.
Article 22 (1) of the Constitution provides that no person who is
arrested shall be detained in custody without being informed, as soon
as may be, of the grounds of such arrest, nor shall he be denied the
right to consult, and to be defended by, a legal practitioner of his
choice. The expression “of his choice” does not mean the detenu can
pick and choose a lawyer; it only suggests that the lawyer
representing the accused must be acceptable to him or her.
Article 22 (2) says every person who is arrested and detained in
custody shall be produced before the nearest magistrate within a
period of 24 hours of such arrest excluding the time necessary for the
journey from the place of arrest to the court of the magistrate and no
such person shall be detained in custody beyond the said period
without the authority of a magistrate.
Article 22 (3) says nothing in Clauses 1 and 2 shall apply (a) to any
person who for the time being is an enemy alien; or (b) to any person
who is arrested or detained under any law providing for preventive
detention. Janata Party leader and former Union Minister Subramanian
Swamy has suggested that Kasab could be considered an enemy alien
under Article 22 (3) (a) and deprived of the right to legal
assistance.
The first possible objection to treating Kasab as an enemy alien stems
from Article 21, which guarantees the right to life or personal
liberty to even non-citizens. Under this Article, no person shall be
deprived of his life or personal liberty except according to procedure
established by law. The danger in treating Kasab as an enemy alien is
that it may set an unhealthy precedent.
The Constitution may well vest some rights, but going back to the
criticisms of the infamous ADM Jabalpur judgment delivered by the
Supreme Court during the Emergency, it is clear that rights can exist
outside Constitutions and one should be wary of arguments that seek to
take away such rights. In this case, the Supreme Court held that the
legality of the order of detention issued during the Emergency could
not be challenged in a court of law as the Presidential Order had
suspended the right to move any court to enforce rights under Articles
14, 21 and 22.
Article 22 is not the sole repository of the right to counsel,
especially for Kasab, who is not an Indian national. So, that
provision is not the sole determinator of his rights. And, it would be
patently unfair to subject him to the demands of that provision alone.
If the right to counsel is today recognised as a basic human right, it
cannot be open to individual nations to deny foreigners such rights on
the basis of their local laws. Since there is no parliamentary or
executive declaration to the effect that Kasab is an enemy alien, he
should be entitled to counsel, even under the terms of Article 22 (1).
Exceptions under the Constitution cannot be invoked because there is a
clamour from sections of civil society. There should be something that
indicates that someone in authority had made a determination as to who
could be called an enemy alien and under what circumstances.
It is true that the conventional understanding of war has changed. In
the Parliament attack case, the Supreme Court said that for invoking
Section 121 of the Indian Penal Code (punishment for waging of war), a
formal declaration of war was not required: a terrorist attack by
militants from across the border, with their accomplices in India, on
the symbols of state power was sufficient to infer that a war-like
situation prevailed. According to Wikipedia, an enemy alien is a
citizen of a country which is in a state of conflict with the country
in which he or she is located; usually, but not always, the countries
are in a state of declared war. Once a war is on, such people finding
themselves for some reason in an enemy country with which their
countries are at war would not be entitled to certain constitutional
rights that are otherwise available to non-citizens during peace time.
Kasab and his accomplices could be said to have waged war with India
for the purpose of their prosecution, but they cannot be considered
enemy aliens under international law and deprived of rights accorded
to non-citizens under the Indian Constitution. Quite rightly, India
has not even considered this option following the Mumbai massacre.
It will be imprudent to deny Kasab such a basic procedural right as
guaranteed by Article 22(1). The state should appoint legal counsel
for Kasab if no legal practitioner agreeable to him is available for
his defence.
This is also provided in Section 304 (1) of the Code of Criminal
Procedure, which requires the court to assign a pleader for the
defence of an accused at the expense of the state if it appears to the
court that the accused does not have sufficient means to engage a
pleader.
Certain basic procedural safeguards evolved by the Supreme Court have
not been followed so far in the case of Kasab. Natural justice
requires some professional assistance to the party to make his defence
meaningful. The Supreme Court, in the case of Nandini Satpati vs. P.L.
Dani (1978), allowed legal representation during custodial
interrogation. In A.K. Roy vs. Union of India (1982), the Supreme
Court held that even a detenu who is statutorily denied legal
representation is entitled to a common law right of representation
through a friend.
The right to free legal aid has been given a constitutional status by
the Court by including it in Article 21 of the Constitution in M.H.
Hoskot vs. State of Maharashtra (1978). Therefore, the state is
constitutionally bound, according to scholars, to provide legal aid to
the poor and indigent accused, not only at the stage of trial but at
the time of remand also.
Kasab may well be indefensible in view of the brutal massacre of
innocent civilians in full public gaze. But issues of guilt and
innocence go to the substance of the trial whereas the right to engage
a legal practitioner to represent the accused is a procedural right,
which should be treated separately and honoured.
http://www.flonnet.com/fl2602/stories/20090130260203300.htm
Frontline
Volume 26 - Issue 02 :: Jan. 17-30, 2009
INDIA'S NATIONAL MAGAZINE
from the publishers of THE HINDU
JAMMU & KASHMIR
Hope in the air
SHUJAAT BUKHARI
in Srinagar
Omar Abdullah assumes charge as the Chief Minister of the troubled
State, with a promise to deliver.
AMIT GUPTA/REUTERS
Omar Abdullah amidst his supporters in Jammu on January 4.
THIRTY-EIGHT-YEAR-OLD Omar, the scion of Kashmir’s first family, the
Abdullahs, assumed charge as the youngest Chief Minister of Jammu and
Kashmir, bringing new hope for the troubled State. Before the votes
cast in the Assembly elections, held in seven phases over two months,
were counted on December 28, no one had imagined that this young
National Conference (N.C.) leader would realise his dream of 2002 in
2008.
Omar Abdullah was the party’s chief ministerial candidate in the 2002
elections, but he lost from the Ganderbal constituency to the People’s
Democratic Party (PDP) leader Qazi Afzal. The N.C.’s tally came down
from 60 to 28 then. This time, the party projected former Chief
Minister Farooq Abdullah as the chief ministerial candidate, perhaps
to take advantage of his charisma.
Until the final phase of the elections, N.C. leaders were unsure about
their party’s chance. However, when the eight segments of Srinagar
went to the polls on December 24, the N.C. went into an upbeat mood.
In the event, it won all the eight seats and emerged as the single
largest party in the 87-member Assembly. Interestingly, the party won
28 seats, as in 2002.
The only difference was that the Congress was more inclined towards an
alliance with the N.C. this time than with the PDP, which secured the
second highest tally with 21 seats.
The Bharatiya Janata Party (BJP), with its influence in the Hindu-
dominated Jammu region, improved its tally from a single seat in 2002
to 11.
The Congress (17 seats) and the PDP could have produced the magic
figure of 44 with the support of independents, but the Congress’
central leadership decided otherwise.
The PDP was the Congress’ coalition partner in the previous
government, and following an agreement on rotation of the chief
ministership, Mufti Mohammad Sayeed headed the government for the
first three years. The Congress’ Ghulam Nabi Azad assumed charge in
2005, but in mid-2008, the PDP withdrew support to the Congress over
the Amarnath land row, upsetting the political equations in the State
and putting it under Governor’s Rule.
Many political analysts believe that the Mufti would have been the
best choice for the post of Chief Minister, given his handling of
Kashmir’s affairs between 2002 and 2005.
Supporters of the N.C. insist that there was no friction between
Farooq Abdullah and Omar about who should be the Chief Minister. Party
insiders agree that the Congress wanted the junior Abdullah to don the
mantle. A day before Farooq made way for his son, he had told a
television channel in Srinagar: “You are talking to the next Chief
Minister of the State.”
The Congress, according to reliable sources, did not have faith in the
senior Abdullah as he was given to mercurial twists of temperament.
“Handing over the State to him at this crucial juncture would be
suicidal,” a top policymaker said in New Delhi on condition of
anonymity.
Omar, they believe, is serious, mature and without the flamboyance
associated with his father. At 29, he became the youngest Minister in
the National Democratic Alliance (NDA) government at the Centre. Omar
proved his ability as a Minister of State for Commerce and Industry,
and within two years, Prime Minister A.B. Vajpayee appointed him
Minister of State for External Affairs.
Sonia Gandhi is also said to have developed a liking for Omar since
his remarkable speech in Parliament on the nuclear deal in July 2008.
Rahul Gandhi and Sachin Pilot, both Congress Members of Parliament,
are said to have played a key role in the rapprochement between the
Gandhi and Abdullah families, whose relations became turbulent
following Farooq Abdullah’s “misadventures” in Kashmir. Omar
maintained that Rahul was a personal friend and Sachin happened to be
his brother-in-law.
State Congress leaders such as Saifuddin Soz and Ghulam Nabi Azad had
a minimum role to play in the government formation; they merely
seconded Sonia Gandhi’s choice. In fact, the two leaders are
comfortable with the N.C. given their bitter rivalry with the Mufti
and his daughter Mehbooba Mufti. The Congress was under immense
pressure to avoid the risk of allying itself with the PDP ahead of the
forthcoming general elections, given the fact that the PDP changed its
course in the wake of the Amarnath agitation and identified itself
with the “Muslim sentiment”.
PDP president Mehbooba Mufti was the lone dissenting voice against the
agreement reached between the Amarnath Sangharsh Samiti and the
government, saying that “Kashmiris were not taken into confidence”.
The party proposed self-rule (though within the framework of the
Indian Constitution) as a viable solution to the Kashmir issue,
regional assemblies for meeting the aspirations of the three regions
(Jammu, Kashmir and Ladakh) of the State, and dual currency. Moreover,
the PDP projected itself as a party with an agenda of “soft
separatism”.
PDP’S MUSLIM SENTIMENT
Mufti Mohammad Sayeed, former Chief Minister, talking to the media in
Srinagar. (Right) Mehbooba Mufti, his daughter and PDP president.
Their party increased its tally and recorded a quantum jump in the
vote share.
The election results brought to the fore the deep communal divide in
the State. The PDP’s invoking of the Muslim sentiment seems to have
worked to an extent, since notwithstanding the anti-incumbency
sentiment against its Ministers and MLAs and the Amarnath land order
passed by its Forest Minister Qazi Afzal, the PDP increased its tally
of seats to 21 from 16 and also recorded a quantum jump in its vote
share.
The inroads it made into the Muslim belt of Rajouri and Poonch are
also significant. It won Mendhar in Poonch and Darhal in Rajouri and
lost Rajouri proper only by a margin of 100 votes. The PDP’s presence
was visible in the Doda and Ramban belts, and it got a big chunk of
the votes in these Muslim-dominated areas.
The N.C. also got a good share of the Muslim votes, as did the
Congress. Eleven of the Congress’ 17 MLAs are Muslims. Three Hindu
candidates of the N.C. won from Kalakot, Nowshehra and Vijaypur in the
Jammu region, but this had more to do with the candidates’ own
popularity and political stature rather than sympathy for the party.
The Congress and the N.C. were wiped out in a pro-BJP wave in Jammu,
Udhampur and Kathua districts. The Amarnath agitation not only
favoured the BJP in Jammu and the PDP in Kashmir, but it also helped
the N.C. and the Congress with the polarisation it caused. Chief
Minister Omar Abdullah repeatedly talked about the “wounds afflicted
in Jammu and Srinagar” by the agitation.
Amitabh Mattoo, former Vice-Chancellor of Jammu University, cautions
about the reality made visible by the elections. “This fractured
mandate reflects different aspirations in the three regions, and if
not handled politically, they will lead to more divisive ways,” he
said.
The elections saw fewer independents among the winners. Hakim Yasin,
who floated the People’s Democratic Front, Ghulam Hassan Mir of the
Democratic Party (Nationalist), and M.Y. Tarigami, the Communist Party
of India (Marxist)’s lone MLA, were forced to support the Congress,
which did not field candidates against them.
CHALLENGES AHEAD
Omar is now set to face enormous challenges in a State that is mired
in political quagmire and is as unpredictable as its people. A single
bullet fired has the potential to change the course of politics, and a
single order issued is enough to put the whole State on fire. Omar may
not pursue the demand for greater autonomy as vigorously as his party
did until June 2000, when the autonomy resolution was passed by the
State Assembly and was immediately rejected by the NDA government.
“It is with the working group set up by the Prime Minister and we will
pursue it there,” Omar told Frontline.
Unemployment is a major issue he will have to deal with. In a State
that depends on government jobs and has 40 per cent more workforce
than required, Omar may have to create more jobs. The State’s annual
salary bill has crossed Rs.3,800 crore, and if the N.C. government
decides to implement the Sixth Pay Commission recommendations (the
Chief Minister is already under tremendous pressure to do so), the
State may witness a financial crisis. The new government is also under
pressure to increase the retirement age to 60 from 58. This has the
potential of blocking employment opportunities for more than three
lakh educated youth.
“I know here everyone is after a government job. I will try to change
the mindset of the people and make them understand that it is
difficult to give government jobs to all,” Omar said. Development of
the three regions may be an easier option to follow.
To start with, the young Chief Minister will have to face the test of
running the coalition government smoothly. The Congress is known to
upset such arrangements. At the outset, it looks like the N.C. has
sacrificed most of the development portfolios to retain the Chief
Minister’s post for the full term.
Will N.C. stalwarts such as Abdur Rahim Rather, Ali Mohammad Sagar,
Chowdhary Ramazan and Mian Altaf be able to accept the fact that the
Congress has the upper hand in key Ministries? In the past, Mufti
Mohammed Sayeed was kept on tenterhooks by Congress Ministers.
Omar, however, has the advantage of heading a government that is
relatively well placed as far as militancy and violence is concerned.
In 2008, there was a 40 per cent decline in militancy-related
violence. The big task would be to control the security forces. There
is a demand from many quarters to scrap the Armed Forces Special
Powers Act and give fair treatment to detainees.
While the youth have pinned a lot of hope on Omar’s regime, many in
the older generation are sceptical about his ability to deliver.
Sheikh Showkat Hussain, who teaches law at Kashmir University, tried
to analyse the three generations of Abdullahs thus: “Sheikh Abdullah,
during his first tenure was a trapped rebel, and in the second he was
a tamed rebel. Omar is an assimilated Kashmiri.
“Farooq does not have credibility for he is seen as non-serious and he
provided a basis for armed insurgency in Kashmir. It is to be seen
whether Omar discovers his roots in his tryst with power or becomes a
tool of assimilation of the new generation in Kashmir.”
There is lot of scope for Omar to deliver. But he will have to work
hard, without being guided by bureaucratic and political cronies
unlike his father, if he is to prove wrong the Kashmir analyst who
said, “Kashmir is a graveyard of reputations for politicians.”
http://www.flonnet.com/fl2602/stories/20090130260203500.htm
Frontline
Volume 26 - Issue 02 :: Jan. 17-30, 2009
INDIA'S NATIONAL MAGAZINE
from the publishers of THE HINDU
JAMMU & KASHMIR
‘We have learnt our lessons’
SHUJAAT BHUKHARI
Interview with Chief Minister Omar Abdullah.
AT 38, Omar Abdullah is the youngest Chief Minister of Jammu and
Kashmir. Like his father Dr Farooq Abdullah and, before him, his
grandfather Sheikh Abdullah, this third-generation member of Kashmir’s
oldest political family has assumed the top post in the State.
Although the National Conference (N.C.) does not enjoy the two-thirds
majority it did when his predecessors were elected to power, Omar is
confident of completing his tenure smoothly.
The new Chief Minister spelt out his agenda for the State in a free-
wheeling interview to Frontline in Srinagar. Excerpts:
Did you expect to head the government in the State? The N.C. had
projected Farooq Abdullah as the chief ministerial candidate.
No, certainly not. If nothing else, we were hoping for a mandate to
govern. In that case, it would have been Dr [Farooq] Abdullah who
would have headed the government. I was not really the candidate. Most
of my discussions, speeches, were centred around Dr Sahib.
So, what changed the course?
Primarily, what changed it was the split verdict. He [Farooq Abdulah]
made it public that he was not comfortable heading a coalition
government. Having governed with a two-thirds majority from 1996 to
2002, he perhaps felt that it was not something he was keen about, and
that he would rather serve the State in a different capacity.
Did the Congress put some pressure?
Not that I know of. Not at any point of time or through any channel
did the Congress tell us who should or should not be the Chief
Minister. It was his [Farooq’s] decision only. He had made up his
mind.
The N.C. and the Congress had forged alliances in the past but those
failed. What made you to come together again?
I think - quite a few plus points. We both have experience working
with coalitions. Myself at the Centre with the NDA [National
Democratic Alliance] and the Congress here from 2002 to 2008 and also
at the Centre. In the past, when the N.C. had an accord with Indira
Gandhi or Rajiv Gandhi, the coalition idea was fairly unique both at
the national and State levels.
The actual management of the coalition was difficult. Now, I think the
Congress has experience in running coalition governments. I believe we
have the advantage of learning from mistakes. So long as we do not
repeat those mistakes, I think it will be alright.
Do you not think Jammu and Kashmir is different?
I am sure it is, that is why the Congress and the Prime Minister took
a firm view that there would be no long–drawn-out discussions. The
truth is that what the Mufti [Mohammad Sayeed] achieved in 20 days in
2002 we did in one hour in terms of agreeing to a coalition government
and putting the basic framework in place. That again is a lesson they
[Congress leaders] have learnt. That is a tribute to how they want
this coalition to function, and it is my job to deliver.
The NDA rejected your autonomy proposal. What do you expect from the
Congress on this issue?
The document is lying with the working groups set up by the Prime
Minister as a result of the Round Table Conference. We will continue
to discuss it. The Congress and the N.C. have to govern the State
together. Neither of us can expect to sacrifice our respective
political agenda, and, therefore, if anybody suggests that the N.C.
has sacrificed its agenda for governance or that the Congress has, it
is absolutely not true. I think we both recognise and respect the fact
that there is space for political ideologies that have to be in
conflict with each other.
There is no question of abandoning the agenda. The Congress and the
PDP [People’s Democratic Party] were together in a coalition, it did
not stop the PDP from talking about demilitarisation, which may not
have been the Congress’ agenda. The N.C. is not out to embarrass its
coalition partner but any partner is entitled to its ideology.
Where do you begin now?
Many areas, but governance is on top: putting in place an agenda for
six years by starting with the first 100 days [of governance]. The
youth have a lot of expectations from me. Whether they voted for me or
not is not the question but they have a lot of expectations. I cannot
provide jobs to everybody, but I can at least find the wherewithal for
providing investment opportunities. We have to change the mindset
about considering only government jobs as proper employment and see
how education can be fine-tuned to enhance skills. There are wounds
that require to be healed.
Aside from the fact that the State has witnessed violence for 20
years, we had a summer of agitation that divided the State, pitting
Hindus against Muslims. Those wounds require to be healed fully. And a
lot more needs to be done.
You have a strong opposition in the form of the PDP with 21 members
and the Bharatiya Janata Party (BJP) with 11. Does this make you
nervous?
No, I am not nervous at all. The job of the opposition is to oppose. I
met Mufti Saheb two days before taking the oath of office [on January
5]. I called on him and assured him that the government would be as
inclusive as possible and that we wanted to carry everybody along. He
has been given a mandate to oppose. I expect him to play that role.
Having the PDP and the BJP at the two extremes is good for us. My job
is to deliver and theirs is to oppose.
Does the state of the relations between India and Pakistan worry you?
Yes, of course. More than any other State, the developments in the
bilateral relations do affect Jammu and Kashmir. When the Centre
improves the relations, things get better for us. If it deteriorates,
the impact is felt in the State. Clearly, after the Mumbai terror
attacks, there is deterioration in the relationship, and that makes us
nervous. We would very much like to see tempers cooling down on both
sides.
We would expect Pakistan to do what it has promised, I mean, ensure
that its territory is not used [for terrorist activities], and hope it
will cooperate fully. India has promised to make out a case and also
ensure that the case is credible, and we would expect Pakistan to act
on that.
Do you think the Kashmiri people and their leadership have an
exclusive role in resolving the Kashmir issue?
No, not exclusive but an important role to play. Most tensions between
India and Pakistan is over Kashmir. And if the leadership in Kashmir,
irrespective of ideological positions, can help India and Pakistan go
along, that will be beneficial.
Does it lead us to tripartite negotiations?
‘Trilateral’ is a sure-fire way of killing the process. There are as
many in favour of it as those who are opposed to it. I think it is
three sides of the table, but you see it otherwise. Islamabad talks to
the separatists or the mainstream, New Delhi does the same. So it is
not quite that, but we are all part of the process.
Do you think there is a realisation on the part of New Delhi about
Kashmir?
I do not know. I think New Delhi realises that it has been handed a
great opportunity by the people of Kashmir. They could have easily
turned this election into an unqualified disaster for New Delhi.
Whatever the reason, the people voted. Their vote has given legitimacy
to the electoral process, and New Delhi should not ignore that.
If it does, it will be doing so at its own peril. New Delhi should
recognise the opportunity and get into constructive engagement with
Jammu and Kashmir, not necessarily with only those who contested the
elections.
http://www.flonnet.com/fl2602/stories/20090130260203800.htm
...and I am Sid Harth