7/15/2009 1:39:00 PM
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C O N F I D E N T I A L SECTION 01 OF 02 ISLAMABAD 001589
E.O. 12958: DECL: 07/15/2019 TAGS: PREL, PTER, PGOV, PK SUBJECT: PUNJAB WITHDRAWS ITS APPEAL AGAINST HAFIZ SAEED'S RELEASE
REF: A. ISLAMABAD 1523 B. LAHORE 99
Classified By: Anne W. Patterson for reasons 1.4 (b), (d).
1. (C) Summary: On July 14, to the surprise of the federal government, the Punjab Advocate General withdrew his province's appeal to the Supreme Court challenging the release of Jamaat-ud-Dawa leader Hafiz Saeed. Punjab provincial officials cite a lack of evidence and cooperation from the federal government as the reason for their withdrawal. Prime Minister Gilani and Interior Minister Rehman Malik are pushing Punjab to reinstate the appeal, as the federal government does not have independent standing to pursue the appeal. The federal government is also examining alternate laws to seek Saeed's detention on federal grounds. The Punjab government's surprise move is viewed by federal officials as a means to embarrass the Pakistan People's Party-led government before upcoming talks with India at Sharm-el-Sheikh. End summary.
PUNJAB WITHDRAWS APPEAL
2. (SBU) On July 14, the Punjab government withdrew its appeal in the Supreme Court challenging the release of Jamaat-ud-Dawa (JUD) leader Hafiz Saeed. The Punjab appeal, along with a separate but identical federal government appeal, was filed on July 7 challenging the Lahore High Court decision to release Saeed from house arrest. In press statements, the Punjab government claims that it withdrew its appeal because the federal government did not provide enough evidence for Saeed's detention. Punjab Advocate General Raza Farooq, who was leading the appeal on behalf of the province, claimed that the provincial government had originally detained Saeed and also filed the appeal in the Supreme Court at the behest of the federal government. Farooq also claimed that the Punjab government had provided all the evidence it had, but the federal government was not cooperating with them.
3. (C) Before the Punjab government's announcement, Punjab Home Secretary Nadeem Hassan Asif warned Lahore's Acting Principal Officer that the federal government had refused to share any information linking Hafiz Saeed to the Mumbai attacks. "We don't have anything against him and our intelligence has nothing to detain him," he stated. He added that Federal Investigative Agency has provided no evidence connecting him with the five alleged Mumbai attackers currently in jail. However, Asif noted, the provincial authorities have placed Saeed under detention, and Saeed has moved little from his home in Johar Town, Lahore. Since his release in late June Saeed has not visited the JUD facility in Muridke, according to Asif.
FEDERAL GOVERNMENT SURPRISED
4. (C) Deputy Attorney General Shah Khawar, who is leading the appeal for the federal government, claims that all evidence against Saeed had been shared with the Punjab government. Khawar told Poloff that he had been surprised by Farooq's move to withdraw the appeal. According to Khawar, the federal government had filed the second appeal to support Punjab's appeal since the original detention was sought by the province. Khawar said that he had been meeting with Farooq, and they had planned a joint strategy for the appeal before the Supreme Court.
5. (C) On July 13, Farooq opened the appeal before the Supreme Court and, according to Khawar, had some difficulty answering the justices' tough questions. Khawar presented his arguments on July 14, and then was surprised when Farooq retook the stand to withdraw Punjab's appeal. In light of the withdrawal, the justices confronted Khawar about the federal government's legal standing to pursue the appeal. Because Saeed's original detention order was sought by the provincial government, and it was the provincial order that was overturned by the Lahore High Court, without Punjab's appeal, the federal government has no standing to appeal on its own. Khawar was granted an adjournment to address the
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question of legal standing.
OTHER WAYS TO DETAIN SAEED
6. (C) To respond to Punjab's withdrawal and the justices' questions, Khawar and Attorney General Khosa sought the advice of the Minister of Interior Rehman Malik. Khosa, Malik, Secretary of Interior Kamal Shah, and Prime Minister Gilani met to discuss the appeal. They, too, had been surprised by the withdrawal. According to Khawar, Gilani called Punjab Chief Minister Shahbaz Sharif to "get an explanation." The high-level officials now have plans to resolve the Saeed case, according to Khawar. Either they hope to get Punjab to reinstate its appeal or the federal government will file a separate detention order for Saeed. With Gilani in Egypt and Khosa unavailable, the Supreme Court has agreed to adjourn the appeal until early next week.
7. (C) According to Khawar, if the Punjab government does not change its mind then the federal government does not have standing to continue its appeal independently. However, Malik and Khosa are considering using the 1952 Security Act of Pakistan or the Anti-Terrorism Act to detain Saeed on federal grounds. The federal government would have to pursue a new set of detention orders before a trial court to successfully detain Saeed under these other laws.
8. (C) On July 14, Malik told the Ambassador that he feels the Pakistan Muslim League-Nawaz (PML-N) led Punjab government is pulling their appeal to "embarrass" the federal government ahead of Prime Minister Gilani's meeting with Indian Prime Miniser Manmohan Singh at Sharm-el-Sheikh. The two Prime Ministers are scheduled to meet on July 16 on the sidelines of the Non-Aligned Movement (NAM) summit. The release of Saeed has been one of India's main complaints against Pakistan regarding cross-border terrorism. Other Post contacts surmise that the PML-N is using Saeed's popularity to gain points with religious conservatives.
9. (C) Comment: Punjab's surprise withdrawal could not have come at a worse time for the PPP-led federal government as it tries to normalize relations with India during scheduled talks on the margins of the NAM summit. Hafiz Saeed is the poster child for India's complaints against Pakistan, and even if Saeed is technically not roaming the streets, the GOP's inability to win the legal case against him is embarrassing. Realizing the importance of Saeed's detention, Gilani and Malik are determined to use any law or means to keep him confined to his home. Given the JUD leader's popularity, the GOP will have to be careful to avoid the appearance of extra-judicial moves against Saeed. PATTERSON