The Pearl Project’s report on the killing of Daniel Pearl and the botched trial of his alleged killers is a remarkable piece of journalism. Every section of it is worth reading closely, but the section that really stood out to me and which I wish could have been expanded on, was section 10, titled “Rushing to judgment” which chronicled the trial of the four individuals accused of killing Daniel Pearl in Pakistan’s ATC II. The details of this trial are very important for anyone trying to understand the dysfunction that is Pakistan’s terrorism prosecution. There are three broad categories of failure here, each of which deserves to be studied in depth. The first is the actions of the infamous “agencies” which basically killed the chances of a proper trial before it even began. The second is the utter incompetence and dishonesty of the prosecution in building a case against the accused and the third is the atmosphere in the courtroom which is a reflection of the larger question of the public attitude towards terror prosecution.
According to the report, the ISI chief at the time, Gen. Ehsanul Haq, has admitted that Omar Saeed Sheikh surrendered himself, on February 5 2002 to the home secretary of Punjab and Musharraf’s close associate Brigadier Ejaz Shah and remained at his house for 7 days before he was “officially” handed over to the Lahore police on February 12. Because of Omar Saeed Sheikh’s high profile status as a famous terrorist, it is tempting to interpret this surrender as evidence of Sheikh’s links with the ISI. (Benazir Bhutto famously termed Ejaz Shah as Omar Saeed Sheikh’s handler in the ISI). However, the fact is that such “lost time” in the custody of the ISI is not limited to high profile terrorists only. It is extremely common in the case of terrorism suspects. In an excellent report in the Daily Times, Vidya Rana describes the frustration of the police with the interference of the intelligence agencies with their terrorism investigations. Here is a quote by a police official interviewed by Rana
We are being used as a ‘pick-n-drop’ service to terrorist-suspects. Police usually arrest a terrorist on tip-off of intelligence agencies. The little information we gather during preliminary investigation, it goes to media to justify the arrest. After taking physical remand, the arrested is handed over to those who provided tip-off for further investigation. But after submitting the challan, police find it difficult to substantiate the charges with evidence deemed concrete by the court,” the police officer said adding that it all happens because investigating agencies do not provide complete evidence to police which can land the terrorist in serious legal trouble during the court proceedings and the subsequent judgment.
In the Daniel Pearl murder trial, the original discrepancies in the arrest of Sheikh haunted the prosecution from day one. According to the report:
What suspects and witnesses told investigators was at direct odds with what police and others testified in court. Indeed, Pakistan police officials acknowledged in interviews that prosecutors and police fixed the trial by fabricating a story to place Sheikh at Pearl’s abduction and inducing witnesses to lie to corroborate the fabrication on these points.
For example, it appeared that the taxi driver who had dropped off Daniel Pearl to the Village restaurant had been coached by the police to make an incorrect statement about what he say that day. Whereas previously he had stated that he had seen nothing, he then stated that he saw a white Corolla pull up next to his taxi and saw Daniel Pearl get into it and drive off. In a State Department cable, US Consul John Bauman wrote:
, “As noted in previous trial reports, in its zeal to convict Sheikh Umer despite meager physical evidence and no eyewitnesses, the prosecution apparently induced at least two witnesses to perjure themselves.”
In a letter to Daniel Pearl’s family, Bauman wrote:
Bauman, U.S. consul general in Karachi during Pearl’s kidnapping, referred to the missing days in a May 22, 2002, e-mail to Pearl family members and Wall Street Journal reporters. In the e-mail, Bauman noted the testimony of a prosecution witness, Zaheer Ahmed, a local carpet-maker: “Zaheer claimed that the raids took place on the night of February 11-12, whereas they actually took place on February 4-5. This is an obvious attempt to gloss over the week of February 5-12 when [Omar Sheikh] claims he was in ISI custody.”
It wasn’t just the timeline which the prosecution lied about. According to the report, the “handwriting expert” Ghulam Akbar who was brought to the stand to prove that the handwriting of the handwritten texts of what would become the hostage emails matched the handwriting of the suspects on trial. Unfortunately, under cross examination, Akbar admitted that he had no training on handwriting at all. Another discrepancy was that a police investigator admitted that the serial number of the laptop siezed by the police did not match that of the laptop examined by an FBI expert.
The final, and, in my opinion, most important aspect of the trial is the level of religious hatred directed towards the prosecution and its witnesses. It’s very tempting to blame prosecution failures purely on incompetence and on the discrepancies in the arrest caused by the interference of the agencies but that is ignoring the elephant in the room which is that the climate in Pakistan makes it almost impossible for terrorism trials to take place in the first place. In this Washington Post article written on May 12 2002, the atmosphere surrounding the Pearl trial is vividly described.
The defendants, Sheik Omar Saeed, Salman Saquib, Fahad Naseem and Sheik Adil have shouted insults at witnesses and made obscene gestures at government attorneys. Two of the four men on trial have made threatening gestures at the lead prosecutor. One of their attorneys accused a witness of working for the CIA and the Mossad, Israel’s intelligence agency.
Earlier this week, the attorney, Rai Bashir, warned the presiding judge that unfit jurists will be condemned to hell. Then, outside the courtroom, he accused the lead prosecutor, Raja Qureshi, of blasphemy.
“He ridiculed Islamic laws and the sayings of the prophet Muhammad, and he did not show any respect in mentioning his name,” Bashir told reporters, who published the allegation the following morning.
The heroic public treatment given to Mumtaz Qadri, the killer of Salmaan Taseer is an all-too-telling example of the skewed nature of the public discourse on the issue of prosecution of those who are perceived to be acting in the name of God. One of the most telling aspects of the Pearl Project’s report was the statement read out by Omar Saeed Sheikh’s lawyer after the guilty verdict was announced:
He read a statement from Sheikh saying: “We shall see who will die first: either I or the authorities who have arranged the death sentence for me. The war between Islam and kafirs [non-Muslims] is going on and everybody should show whether he is in favour of Islam or in favour of kafirs.”
While I am not trying to minimize the sheer incompetence of the prosecution or the clearly unlawful actions of the intelligence agency, the impact of this third aspect – the violently skewed nature of public discourse on the issue of terrorism prosecution – cannot be overstated. In this brilliant satirical article on the trial of Mumtaz Qadri, Junaid Sahibzada illustrates this dilemma perfectly.
MQ: ” God instructed me to kill and hence I killed. Which part of my sentence you don’t understand?”
A lawyer from the crowd, jumps to MQ’s rescue and helps MQ by using his legal expertise and argues.
Lawyer: “The constitution of Pakistan says that Sovereignty belongs to Allah alone but He has delegated it to the State of Pakistan through its people for being exercised within the limits prescribed by Him as a sacred trust.
This proves that God exists and if He exists then he can also ask MQ to do a small task as well. If you do not accept MQ’s claim that God instructed him to go for the kill then you are rejecting the constitution which has empowered you as the judge of the supreme court of the Islamic Caliphate, I mean the Islamic republic of Pakistan in the first place. And you are also becoming an apostate at the same time since you are rejecting God”
I hope I am wrong when I say this but it does seem that Pakistan’s legal system cannot prosecute terrorists because Pakistan’s legal system, as a subset of Pakistan’s overall state structure is fundamentally unequipped to act against those committing acts of violence in the name of God and religion. In fact one can take it a step further and say that the Pakistani state and constitutional structure is practically designed to allow freelance acts of violence to be committed with impunity and without fear of retribution. The same combination of a weak state structure superimposed with a strong state ideology that allowed Pakistan to create its jihadi “proxies” is what leaves these same proxies free to kill and maim Pakistani citizens at and go unpunished for it. As the post 1997 history of the Anti-terrorism Act and its various iterations have shown, no amount of change in the penal code will change the nature of this stalemate.