Cablegate: Preventive Detention for Mumbai Attackers
PP RUEHLH RUEHPW
DE RUEHIL #3849/01 3511402
ZNY CCCCC ZZH
P 161402Z DEC 08
FM AMEMBASSY ISLAMABAD
TO RUEHC/SECSTATE WASHDC PRIORITY 0707
INFO RUEHBUL/AMEMBASSY KABUL 9580
RUEHLO/AMEMBASSY LONDON 9284
RUEHNE/AMEMBASSY NEW DELHI 4206
RUEHKP/AMCONSUL KARACHI 0788
RUEHLH/AMCONSUL LAHORE 6519
RUEHPW/AMCONSUL PESHAWAR 5378
RHMFISS/CDR USCENTCOM MACDILL AFB FL
RHWSMRC/USCINCCENT MACDILL AFB FL
RUMICEA/USCENTCOM INTEL CEN MACDILL AFB FL
RUEKJCS/SECDEF WASHINGTON DC
C O N F I D E N T I A L SECTION 01 OF 02 ISLAMABAD 003849
E.O. 12958: DECL: 12/16/2018
TAGS: PGOV PREL PTER KJUS IN PK
SUBJECT: PREVENTIVE DETENTION FOR MUMBAI ATTACKERS
REF: ISLAMABAD 3819
Classified By: Anne W. Patterson for reasons 1.4 (b), (d).
1. (SBU) Summary: The continued police round-ups in Pakistan of persons even tangentially connected to the Mumbai attacks have generated much puzzlement about the country's sweeping ability to use preventive detention remedies. For Pakistani authorities, however, this is pretty much business as usual. In fact, the government is generally acting in accordance with Pakistani laws, which give it sweeping capabilities to detain anyone suspected of endangering the public order. The government's powers to detain go beyond the powers of any western government. While these detentions are judicially reviewable (eventually), the government's burden of proof is low, and there are enough loop holes in the laws to allow the government to string out a detention indefinitely. End summary.
Legal Grounds for Preventive Detention
- - - - - - - - - - - - - - - - - - - -
2. (U) The use of preventive detention is well established in both law and practice across the Indian Subcontinent. This directly reflects a legal inheritance from the British colonial administration, which codified the practice and used it widely, especially in the turmoil of the late Raj.
3. (U) As a consequence of this legacy, preventive detention has been used in Pakistan since independence, and has survived successive constitutional revisions. Article 10 of the current (1973) Pakistani Constitution maintains and, indeed, expands the availability of such detention. Additionally, Pakistan has on the books a series of acts and ordinances which also provide for preventive detention, at once both further clarifying and confusing the issue.
4. (U) The constitutional basis for preventive detention, Article 10, is sweeping in scope; it allows for the preventive detention of ""persons acting in a manner prejudicial to the integrity, security or defence of Pakistan, or external affairs of Pakistan, or public order."" Such language very conveniently leaves the government a lot of room for interpretation.
5. (U) For a constitutional provision, Article 10 is also startling both in the degree of procedural specificity it provides regarding preventive detention, and the paucity of protections it affords the detained person. There are no rights at all afforded to the detainee in the first fifteen days. At that point, the person is entitled to know the basis for the detention and be given opportunity to ""make representation"" against it. Within three months, a judicial ""Review Board"" must be convened and hear the case. The Review Board is appointed by the Chief Justice and is comprised of sitting or retired high court or Supreme Court judges. The board may extend the detention for a period of up to twelve months.
No Real Cap on Detention Limits
- - - - - - - - - - - - - - - -
6. (U) While the conventional wisdom holds that there is a twelve month limit on preventive detention, in fact the Constitution leaves a loop hole big enough to drive a jingle lorry through: The Review Board can extend preventive detentions beyond the twelve months period in the case of a person ""who is acting or attempting to act in a manner prejudicial to the integrity, security or defence of Pakistan or . . . who commits or attempts to commit. . . anti-national activity. . . or is a member of any association which has for its objects, or which indulges in, any such anti-national activity""; sweeping language indeed. As one senior government official noted to the Embassy Resident Legal Advisor, detentions under this exception may be ""indefinite.""
7. (U) The government's burden in establishing grounds for preventive detention is light; the Review Board need only agree that a ""reasonable person"" would be satisfied as to the necessity of making the order for detention. To the credit of the courts, however, they do not always serve to rubber stamp government detention requests, and do require some degree of ISLAMABAD 00003849 002 OF 002 prima facie evidence in support of the detention.
The Anti-Terrorism Act and Other Laws
- - - - - - - - - - - - - - - - - - -
8. (U) The constitutional provisions on preventive detention are also reflected in various statutes and ordinances enacted by Pakistan over the years, including the Security of Pakistan Act of 1952 (still in effect), the Maintenance of Public Order Ordinance (issued in 1960 but also still used), and the Anti-Terrorism Act (ATA) (1997, with amendments).
9. (U) The ATA, in particular, often serves as the basis for preventive detentions. Like the Constitution, it is sweeping in scope, allowing for detention of anyone who is even ""affiliated with groups suspected of terrorism or sectarianism."" Acts that might serve as grounds for preventive detention include speaking or soliciting on behalf of a ""proscribed"" (i.e., terrorist) organization, or even wearing clothing that suggest such affiliation.
10. (U) While the ATA states that detention under the Act should not exceed twelve months, it also directly incorporates Article 10 of the Constitution by reference -- and, as noted, that Article allows for extension of the detention beyond twelve months for activity prejudicial to national interest, among other things.
Charging the Mumbai Attackers
- - - - - - - - - - - - - - -
11. (C) Pakistan's extensive preventive detention regime provides a convenient mechanism, at least in the immediate term, for dealing with persons linked to the Mumbai attacks (or linked to the organizations involved in those attacks). The bigger question remains: how will Pakistan actually charge and prosecute these people? Embassy RLA put this question to the Pakistani Law Minister Farooq Naek on December 16, who suggested such charges would likely be brought under the ATA, but declined to be more specific, noting they would have to see the evidence first. The Law Minister was also quick to put the responsibility for current detentions on the Interior Ministry; he ""assumed MoI had grounds under Article 10, but declined familiarity with their evidence.
12. (C) When questioned further about how Pakistan might assert jurisdiction under the ATA (or any other statute) over acts that occurred in India, the Law Minister simply dodged the question, noting that he was ""unsure"" of how Pakistani law would deal with this issue, and would have to look into it.
13. (C) Comment: Pakistan's government is finding convenient use for its preventive detention laws in the wake of international pressure to do something following the Mumbai attacks. The laws provide a short term fix, and as the Law Minister himself seems to concede, not much thought has been given to how more comprehensive legal proceedings might play out. Nor are preventive detentions ironclad; they have been successfully challenged in the past, and savvy lawyers might be able to do so again now. The entire area is a murky one, fraught with ambiguities. The case law (and there is a fair amount on the matter, given that this is a common law country) generally supports the concept, but not always the execution. Yet the practice has endured since independence, and obviously has served the purposes of successive governments. End comment.