The Trial of a Nation

This is an abridged version of Barrister S.M. Zafar's account of the high intensity drama behind the legal defense of his client Dr. Abdul Qadeer Khan and his battle in the Dutch Courts and Pakistani corridors of power. Even today, twenty-one years later, one can realize why the trial of a man at

that time was actually the trial of a nation; and why it is important that an ordinary Pakistani should know the truth and hold his head high. It is a translation of a chapter from S.M. Zafar's book "Mere Mash'hoor Muqaddame".


THE FIRST MEETING WITH MY CLIENT

January 24, 1984

Respected S.M. Zafar Sahib,

Our meeting on Sunday was a pleasure. Before that the only acquaintance with you was through the media but it was great honor meeting you in person. I am sending this book and some papers for you to review.

Yours truly,
Dr. Abdul Qadeer Khan


The contents of this letter show the impressions of Dr. Khan that he got from our first time meeting; even though the meeting with him was in professional capacity. Two days earlier, when I was headed for Islamabad to see this mysterious scientist, my mind was already clouded with the romanticized fables about the Kahuta Plant and the man behind it. But our meeting on January 22nd turned our casual acquaintance into a friendship, which has only strengthened with time. As a person I found him way better than the legends that surround him.

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Dr. Khan Khan was born in 1936, in the Indian state of Bhopal. He graduated from University of Karachi and went to West Germany where he resided from 1961 to 1963. There he married into a family that was settled in Holland and moved there along with his wife. In Holland, he graduated from the Delft University of Technology with specialization in Metallurgy. After completing his education Dr. Khan joined a Dutch commercial company named F.D.O and worked there until 1975. That was the time when India had already conducted a nuclear test. Meanwhile, Dr. Khan met with Z.A. Bhutto and left Holland. He was appointed as Project Director in Ministry of Finance and he initiated the work for Kahuta Plant. From 1975 to 1978 this project progressed through its initial stages quite secretively. On October 12, 1978, The Week Nucleonics, an American technical journal, for the very first time reported that Pakistan had succeeded in enrichment of Uranium through Centrifuge Method and Pakistan might conduct a nuclear test. The journal also reported that Pakistan had recently placed an order for high frequency transformers, "which indicates that 'something' is going on in Kahuta".

On March 28, 1978, the Dutch TV reported that "a Pakistani scientist" successfully stole the Uranium enrichment technology from a German-Dutch-English conglomerate named URENCO. This Dutch plant was situated in the city of Almelo. I will detail the nature of the storm that erupted in West because of this news, later, but first I have to tell you that the Western countries, despite this brouhaha, remained skeptical that Pakistan was capable of enriching nuclear fuel through Centrifuge Method. Germans were the first to suspect that the Pakistani scientist might have stolen the technology from Almelo. They severely criticized Holland for their lax security. Holland was in hot waters from all sides. As they were investigating this breach of security they also started a calculated campaign of maligning Dr. Khan's name (in order to deflect some of the pressure upon them) and started planning to punish him.

On October 18, 1983, the Dutch ambassador in Islamabad delivered a subpoena from a Dutch court to the Ministry of Foreign Affairs; the subpoena was meant to inform Dr. Khan that a criminal case was filed against him in the Dutch court where he was required to appear on October 31, 1983. The Ministry of Foreign Affairs forwarded that subpoena to the Ministry of Law. The later sent the subpoena back with a comment that since there was no bilateral treaty between Holland and Pakistan that stipulated the serving of court orders to each others citizens, therefore, subpoena must be returned to the Dutch authorities. The Ministry of Law took too long to make its decision and thus Ministry of Foreign Affairs replied to Dutch Embassy quite late by November 15, 1983. Meanwhile, on October 31, 1983 the Dutch Court initiated its proceedings on schedule, and convicted Dr. Khan in absentia. He was sentenced to a four-year jail term on November 14, 1983. The court verdict was announced through the media and Dr. Khan remained a subject of media attention and discussions for many days to come.

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Dr. Khan was quite indignant at the shabby handling of this affair by both ministries. He used to say that those ministries did not handle the matter with the care that a person of his stature deserved. The Ministry of Law even went as far as commenting that what difference that conviction would make; Dr. Khan was not going to go back to Holland anyway.

When I met Dr. Khan, the issue that he raised was not that whether he should be able to go to Holland or not but rather it was to face the charge that he had stolen the blue prints from the Uranium plant. His prime objective was not only that he wanted to clear his own name but he also wanted to clear the matter to the Western media which was refusing to admit that a Pakistani can have such abilities to master the nuclear technology. That was the point upon which we both agreed. After our first meeting when I was leaving for Lahore Dr. Khan commented "I shall fight for this case like hell". Dr. Khan was insistent that his case must be appealed before the said court whether or not the Government of Pakistan or Law Ministry help and he wanted to appoint me as his attorney.

When we started discussing the details of the case we were totally clueless about our future course of action. I had no idea about the Dutch law and their legal system; and the first step towards that was the most difficult one i.e. getting the English translation of the related laws. Dr. Khan provided me some documents in this regard.

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One day Dr. Khan called me and said "It seems that you have angered General Zia for some reason; and there is someone in Law Ministry who wants to settle some old scores with you."

"Why do you say that?" I asked

"I say so because when I mentioned your name as my attorney to General Zia, he instantly rejected it and so did Law Ministry".

"If that is the case then it seems that I wont be able to help you much but it was an honor just to meet you", I replied.

Dr. Khan then inquired why General Zia was not quite pleased with me and I told him that one of the reasons was the national politics. In those days I was one of the most vocal critic of General Zia's policy of non-party based elections. However, I had no idea why someone in the Law Ministry was backstabbing me though, since I had left the Ministry way back in 1969. The Law Ministry had already committed a grave mistake by not acting promptly, which resulted in one- sided trial and a verdict against Dr. Khan. Probably Ministry of Law was trying to cover up for its mishandling of the situation.

Dr. Khan listened to my reasons intently and chuckled. Then he told me to send him my passport so that he could arrange for a Dutch visa. I was a little surprised at that. But as opposed to my expectations, few days later, GOP informed me that all arrangements for me to leave for Holland were made. I was scheduled to leave in the early March.

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INVESTIGATING THE CASE

At the airport, Dr. Khan himself came to the VIP lounge to see me off. I asked him, at that occasion, how did he pull that off. He told me that he threatened GOP that if he were not allowed to appoint the attorney of his choice, he would leave for Dubai and he would only come back when his name would be clear of all charges. Then he winked and said that they (GOP) got scared but he would have done it any way had the GOP not budged. Later Dr. Khan also told me that he pleaded his case with the GOP taking the position that since that case was related to a time of his life when he was employed in his personal capacity, therefore, he should be able to appoint his own attorney.

I was accompanied by Imtiaz Bhatti; who was Joint Secretary for Defense at the time. I had family terms with Mr. Bhatti so we had a pleasant discussion throughout the course of our flight. But most of the time my mind was occupied with worrisome thoughts that I had no clue about the Dutch law and neither did I know Dutch language. I was thinking on the lines that probably we should hire a Dutch attorney to present our case on our behalf. Dr. Khan, however, had chosen me to present his case despite the opposition from Law Ministry and government. In case I failed that case it would have been a colossal disaster not only for me personally but for the whole nation.

Our first destination was London, where on March 13th we met Sir David Napley in his office. This famous British lawyer was already waiting for us along with his assistant in his library. He spent some time expressing his legal point of view on the case and then we asked him some questions. According to him, there was no concept of conviction of an accused in absentia in English Common Law; however, several European countries had that provision in their law. The matter got a bit clearer after further discussion; one thing was sure that we could not make use of Anglo-Saxon Law in that case. We had to contest the case through Napoleonic Code and Dutch Law. There was no other way but to familiarize us with the later. Sir Napley repeatedly pointed out towards the most contentious aspect of that case that whether we would present Dr. Khan in the court or not and we dodged his questions every time.

The next day we met with Mr. Russell Sr. at the Russell and Russell Solicitors – a father-son law firm. The GOP had already requested Russell and Russell to obtain all the information from Dutch court that would help me fight that case. During our conversation, Mr. Russell opined that the Dutch court had acted according to the stipulated law, because issuance of subpoena in itself meant that all the regulations had been followed. So the carelessness and delay on part of Government of Pakistan should have no bearing on court's judgment latter.

Upon my request to see the court verdict Mr. Russell told us that the Dutch Courts do not pen their verdict until and unless the accused appears in the court office and registers his intention whether he would appeal the case or not. As the accused expresses his intention to appeal, the court pens its verdict and moves his file to the appellate court; by doing that a lot of court time is saved.

Mr. Russell also told us that he, on the behest of GOP, had already registered with court that Mr. Khan would appeal the case. The conversation then turned towards the question whether Mr. Khan would appear before the court or not. Mr. Russell opined that the appeal process would not start until Dr. Khan appeared.

On the same day, we were invited at Pakistani embassy by ambassador Dr. Ms. Khurshid Haider for dinner. Along with us, Mr. Russell and another of embassy's legal advisor Mr. Dunn Driver were also invited. Mr. Russell brought along with him another solicitor named Mr. Moth. The core topic of discussion that evening was a comparison of the European laws as they were applied in different countries. The result of that discussion came out to be that the English Common Law and the laws that were employed in the mainland Europe were quite different. The core reason was that because the countries on the mainland were adjacent to each other and people could move about relatively freely from country to country, whereas Britain, since it is an Island, such mobility is restricted. In mainland countries those people who committed crime in one country could easily move to another. For that reason, in the mainland Europe, in general, the criminal law made provision that an accused could be tried and convicted in absentia.

During the course of discussion an interesting legal example was presented to us. According to the Dutch Law if someone standing on the German soil fires a shot and wounds a Dutch citizen, the later can file his case in Dutch Court and Dutch court can subpoena the offender in Germany; and if accused would not appear before the court he can be convicted in absentia. Dunn Driver opined that it was solely GOP's responsibility to inform the Dutch court on time.

Our impression from this conversation was that the Dutch attorneys respect their courts immensely and spare no effort to justify court verdicts.. They never accept any accusations blaming courts of negligence or dishonesty and also that they are quite allergic to English law.

On March 15th we had a special sitting with Dunn Driver and we discussed the Dutch Criminal law, in detail, as it was applicable in our case.

On March 16th, we met with Professor Oviller, in German city of Cologne. He was an expert on international law and International Convention on Proliferation of Nuclear Technology. We discussed various aspect of applicable laws and matters of jurisprudence, as they were applicable in that case.

On March 20th we met with Bernard Du Grannutt, in Paris, over a dinner with the ambassador Jamshed Marker. Mr. Grannut was a leading human rights lawyer in France and we discussed this case with him from the human rights perspective. He opined that the improper serving of subpoena to an accused is a human rights issue and the matter can be brought up in UN's Human Rights Commission, but first all the legal avenues in the respective country must be exhausted before bringing the case before the Commission; and if Dr. Khan does not appear before the Dutch Court first, the matter cannot be brought before the Commission.

I returned to London after that meeting and went to Euro-Center that provides access to a computerized database of European laws. We downloaded several laws and made several queries. The computer printed the answers to our queries in a bunch of papers instantly. Several of those answers were irrelevant, however, an answer to one of my queries caught my attention. It stated that if for some reason the subpoena is not served properly, it provides enough legal ground to nullify the court verdict. . We repeated our query in several different ways but computer could not associate a legal clause with that statement. It seemed that the computer database could not help us any further, however, that statement got stuck to my mind.

Later, an investigative trip to Holland also proved to be quite beneficial. I bought several books on Dutch law and their legal system there. I also visited the International Court of Justice in The Hague. My impression of Dutch people and legal community was that they hold the values of law and justice very dearly. This fact made me very optimistic about my case. I thought that despite the fact that their court had handed down a guilty verdict improperly and in haste, they would reconsider it during the appeal process. A lawyer must remain optimistic about his case; otherwise, his preparation remains flawed and incomplete.

Despite my optimism there were two core issues that worried me immensely. One of those issues was that of appearance of Dr. Khan in the court and the second issue that was more worrisome was that I did not find any enthusiasm among Dutch lawyers, which is required to win any case. One reason for this lack of enthusiasm was the persistent propaganda against Pakistan and Dr. Khan, which media was disseminating for quite sometime now. Through that propaganda Dr. Khan was being portrayed as a "lowlife thief", and a "spy" because of whom Pakistan was potentially becoming a nuclear state; he was the man who had put world peace and security in grave danger.

During cold war, propaganda proved to be one of the most effective weapons. It could turn a totally rational human being into an emotional and irrational extremist. For example, Mr. Russell told me that in social gatherings other women were continuously hammering his wife as to why her husband took up that case.

Despite those two weak points, I became even more determined to win that case and started to formulate my strategy. The first decision that I made that I was going to keep Mr. Russell and Dunn Driver in my legal team. The former was quite influential and well connected whereas later was a brilliant lawyer. I excused Mr. Moth. When I told both gentlemen on my team, that I was considering taking them to Pakistan to meet with that "mysterious spy scientist", they were so intrigued that they instantly accepted my invitation. I also told them that the core aspect of my strategy would be that we would not criticize the Dutch court and also that the matter would not be exploited in the media. Those two ideas worked like a charm and they became more dedicated to that case than ever.

It was my impression of the Dutch legal community that while on one hand they were concerned about the alleged pilferage of the nuclear technology, on the other hand, they also had a feeling that their court had acted improperly by issuing its verdict in haste. They were concerned that it might malign the good name of Holland.


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THE DUTCH LEGAL SYSTEM

I think it is appropriate, at this time, to give the reader a short introduction to the Dutch legal system. The Dutch legal system came into existence under the constitution of 1938. The Criminal Code is based on Napoleonic Code and it is quite different from the English Common Law upon which our law is based. For example, according to the Dutch law an accused can appoint an attorney during the investigation phase, can cross examine the witnesses himself, and he can produce his own witnesses. This deems to be one of the basic rights of the defendant and if this privilege is not provided to a defendant the case against him may end up in a mistrial. We noted this point in our appeal papers.

The highest court in the country is called the Supreme Court and it resides in The Hague. But Supreme Court usually examines only the constitutional or cases of jurisprudence only. There are two separate courts at the level of supreme court that hear the civil, criminal, administrative and military cases and these are the final links in the chain of legal system.

The Dutch criminal courts system is divided into two categories: one type of courts attend to low-level misdemeanor type criminal cases and other type is for high-level felony type cases. Dr. Khan's case was in a court belonging to the later category. If compared with Pakistani court system, that type of court may be taken as an equivalent of Session or District Courts. The name of that court in Dutch was "Arlondisse-Mentstrcht-Banken", which is considered one word. During this trial we had to memorize such names and terminology.

A bench of three judges examines the appeals against the verdicts of District Court. The name of appellate court was relatively easy, "Gerechtshoven". The appeal on behalf of Dr. Khan was filed in one of such appellate courts, which was situated in Amsterdam.

Another aspect of Dutch Court system is that the Advocate General or the Attorney General is considered a part of court and not a separate entity as that of a Public Prosecutor in English Common Law. The attorney general in Dutch court sits at the same table with the judges but only difference is that he can extend his opinion in a case to the judges but he cannot vote. The judges usually address each other and the court while sitting down on their seats whereas attorney general or his appointee has to stand up to address the court. That is the reason sometimes the judges are referred to as the "Sitting Court" and the attorney general as the "Standing Court".

We were still waiting for the copy of court verdict, because we could only file an appeal – with in fifteen days of its issuance of the verdict - after the copy was received.

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THE APPEAL AGAINST THE GUILTY VERDICT

After returning to Pakistan I prepared a detailed report of my actions and strategies and submitted to Dr. Khan and asked for his opinion. We exchanged several letters and met on couple of occasions. I was waiting for the copy of the verdict so that I could proceed with the appeal process.

Meanwhile, I met with Dr. Khan and his wife several times. He was working really hard to assist me in this case; probably as hard as he had worked to build the "Kahuta Workshop". The drawers in my table filled with the explanatory notes sent by him. The Dutch Laws were being translated at an accelerated pace and I was also collating the opinions of various other scientists as well.

In July 1984, I decided to take a recreation trip to Europe along with my wife. We arrived in Frankfurt on 24th. Our next destination was Prague where my niece used to live and we had promised that we would stay with her for a week. The plan was to go to England from Prague and return to Pakistan sometime in September.

It was late afternoon when we lodged in a hotel in Frankfurt. We rested for a while and then informed my niece that we had arrived in Frankfurt. But just as we hung up the phone we received a call from Dr. Khan from Islamabad. He ahd obtained the hotel's phone number through my niece. He informed that the copy of court's verdict had arrived and that I should go to Amsterdam and file the appeal right away. My wife was quite disappointed by this interruption in our vacation but I told her that how glad I was. I also told her that I was going to Amsterdam and she should go back to Pakistan.

Meanwhile, I forgot to tell you that, Ministry of Law had appointed Advocate M.B. Zaman in our group as well, and he had already left for Amsterdam along with Imtiaz Bhatti. I met them in Amsterdam and we prepared an appeal in following several days and submitted to court on time.

While preparing the appeal we had come across disagreements on various points with Dutch lawyers, but we insisted on our points and after much debate those were incorporated in the appeal. When the papers for appeal completed it gave us enormous pleasure to see our masterpiece. I returned to London along with M B Zaman and went on vacation since there was still time for the court proceedings.

This time we felt pleasantly surprised by the attitude of the Dutch lawyers. Now they wanted to win this case. I felt that the time has finally come to play the trump card and invite those lawyers to Pakistan to meet with their "mysterious" client. I had several objectives in my mind for that meeting. First of all it was necessary to establish an atmosphere of trust between the client and the lawyer. The second aspect was that M. Russell and both Dutch lawyers were ha vast societal contacts in their respective countries. We also believed that after meeting with Pakistani people in general and with Dr. Khan in particular they might be able to look back into their pre-conceived notions that they had in their mind as a result of the vicious propaganda about that case.

They accepted our offer and Mr. Russell and Dutch lawyers came to Pakistan along with their spouses. It didn't take them much time to make friends with Dr. Khan when they found him to be a scholar and a family man rather than an "Eastern Spy". These people returned to their countries with very high opinion about Dr. Khan and they also realized that Pakistan was not a country of illiterate religious nuts and extremists. They were quite impressed by the hospitality and civility of their Pakistani hosts.

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THE "THEFT" OF NUCLEAR TECHNOLOGY

At this point it is necessary that reader should get acquainted with the background of the case against Dr. Khan.

During the WWII, the United States dropped two atom bombs on Japanese cities. One bomb that was dropped on Nagasaki was built with nuclear fission material that was obtained through the "Reprocessing" method and one that was dropped on Hiroshima was built with the fission material that was obtained through the "Centrifuge" method. The Centrifuge method did not become a method of choice during the years after WWII, but in 1970 it regained its importance. In Europe a consortium of three nations – Holland, England, and Germany – restarted the research on this method at a facility situated in Almelo, Holland.

In the reprocessing method Uranium 235 is separated from U236 with a current of charged air just as wheat is separated from hay in a thresher, whereas in Centrifuge method the material to be separated is rotated in a cylinder just as sugar is rotated in the cotton candy machine producing 'lint' thus separating it from the heavier parts of sugar. The separation of two uranium isotopes is the science behind the Centrifuge method. The proportion of U235 in a sample of ore is usually 0.7%, therefore, its separation is a very delicate process. In some aspects Centrifuge method is considered the zenith of separation technology. The Centrifuge rotor normally rotates at 70,000-80,000 RPM (rotations per minute), therefore, the material that is used to build the rotor is very crucial and its components must have exact proportions.

When Pakistani scientists, were building the Centrifuge at Kahuta Lab, they were facing issues after issues at each and every step. One such issue faced by Dr. Khan was related to a component that is called "Taatsen" (Dutch word). In order to resolve that issue Dr. Khan wrote a letter to his friend in Holland. Similarly, Dr. Khan wrote another letter to his other friend to seek his advice on an issue related to a component called "under-damper". Those letters were written in 1976 and '77 respectively, but Dr. never received a reply back because the letters were intercepted by the Dutch security agencies. At that time the West suspected for the first time that something was going on and Pakistan was up to something that it was buying very expensive and sensitive machinery from different countries. The case against Dr. Khan was filed on the basis of those two letters.

It is quite interesting to note that the Western countries were very much aware of purchase and installation of the machinery at Kahuta plant. At that time, there was a common presumption that Pakistani engineers and scientists would never be able to build anything based on that experimental technology even if Pakistan had bought all the necessary equipment for its production.

The West was utterly convinced of the ignorance and "scientific illiteracy" of Pakistan and it was selling all the equipment at astronomically high prices. But by the mid 70s, as described above, when they started suspecting that Pakistan might have made substantial advancements in this field, they started their investigation. As they expanded their investigation they became aware of the fact that there was a Pakistani scientist, who was an expert metallurgist and he worked at a Dutch company named DFO and during his service there he got an opportunity to work at the Almelo research facility. They became aware that Dr. Khan was fluent in German and Dutch languages, and he was hired to translate some documents because of his knowledge of two languages. They investigated on the lines whether Dr. Khan had time and opportunity on his hand, when he observed the mechanism and technology of the whole plant and could have memorized it by heart. They couldn't find a satisfactory answer to their questions.

One of the question they pondered the most was whether Pakistani scientists had the ability to go that far by their own knowledge and experience. They rejected this option quite arrogantly. The West, which dwells in the abyss of superiority complex, could never accept that Science and Knowledge is not an inheritance and property of a particular nation or a country, but any one who can work hard can master them. The easiest answer for them was that that Dr. Khan must have stolen the technology from Almelo.

Just as those presumptions were being made about Dr. Khan, the media instantly labeled him with several derogatory names. The author of the book "Islamic Bomb" named him "Science Spy", and attributed to him having the same mysterious attributes as that of the fictional character "Dr. No". He was also called the twin brother of the Star Trek character Mr. Spock. The Dutch government was also a media target for its lax security.


In the Dutch parliament the ministers related to the issue testified that if one impartially analyses the average time spent by Dr. Khan at Almelo and the nature and extent of the work he did during that time, he can easily conclude that Dr. Khan could not possibly have any spare time to even chat with someone. In their opinion, Dr. Khan couldn’t possibly, understand the technology during the sixteen days he spent at Almelo and even then he could only go in or out of the factory at prescribed hours.

But despite that, the German TV and media kept on accusing Dutch government; so, in order to deflect pressure from itself, the Dutch Government, filed a criminal case against Dr. Khan in a hurry. The security agencies based their case partially on those two letters, which Dr. wrote to his friends as mentioned earlier. The prosecution took a stance that it was a criminal act, according to the law, to make inquiries about nuclear technology and his letters fell into that category.

The Dutch government hurriedly completed its investigation and filed a case on October 8, 1983 in a Dutch court despite the fact that according to the Dutch law an accused has the right to present his position during the investigation. Dr. Khan was denied that right and he was subpoenaed through GOP; even the date for hearing was set too early i.e. October 31.

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ARREST WARRANTS FOR DR. QADIR

Anyone can see that the Dutch government and the court were taking those steps carelessly and hastily. A subpoena issued on October 18th couldn't possibly be served on time, for an Oct. 31 court date. Even if that subpoena were served in time, Dr. Khan couldn't have possibly made any preparations to defend himself in the court of law. On top of that, on October 31, the court was not even informed whether the subpoena was served or not, and it was only made aware that subpoena was sent to Ministry of Foreign Affairs of Pakistan. The court then assumed that the subpoena was served and delivered its one sided verdict against Dr. Khan based on government accusations alone.

That was the verdict against which we had filed an appeal. Our job was made even more difficult by the fact that attorney general had requested court to issue arrest warrants for Dr. Khan since he was deemed a fugitive. It was quite clear that the prosecution wanted to blow us a technical knock out by doing so, because it is a universally accepted practice in law that if an accused wants to appeal a verdict against him then he must first surrender himself to the authorities; otherwise such an appeal is not even registered in the court.

My difficulties became manifold when people in the Pakistan's Law Ministry raised their voices that I had coerced Dr. Khan to file an appeal just because I wanted to go to Holland; and that when Dr. Khan was not going to go to Holland then why file an appeal any way. They argued that if the court doesn't register the appeal, it will affirm that the court verdict was correct. When Dr. Khan came to know about those complaints, he became much worried and started pondering to withdraw his appeal.

However, my reaction to those complaints was exactly the opposite. I considered the prosecution's request for an arrest warrant as a gift from heaven. I tried to convince Dr. Khan that if we were able to stop the prosecution's request for arrest warrants in its track we would have won half of the case. In that case we would not be required to surrender the "accused" to authorities to file the case.

We prepared a reply to the request for arrest warrant with convincing arguments and in order to do that I had to make references to various International Conventions, such as:

(1) UN Declaration on principles of International Law concerning friendly relations and cooperation amongst states dated 24-10-70
(2) European Convention on Human Rights of 3-3-53
(3) Universal Declaration of Human Rights of 11-10-68
(4) Resolution of Ministers of Council Europe in Legal Field on the Criteria
(5) Covering proceeding held in the absence of accused dated 21-5-75
(6) International Convention on Civil and Political Rights dated 11-10-68


Based on these references we contended that any country that is a signatory of these conventions is bound to respect the law of the other country. So it is incumbent upon a country that it must recognize that if a defendant has filed an appeal in one country and the law of his own country prohibits him from leaving the country then it shouldn't be necessary for the later country to issue the arrest warrants prior to the hearing of an appeal. A court should only note the absence of the defendant at the hearing but issuing an arrest warrant would only hurts the appeal process and it also contradicts the conventions listed above.

It was an irrefutable stance in itself but we also reinforced it by making a reference to a Pakistani law that was being enforced since 1959. According to that law, GOP had the authority to restrict the movement of certain of its officials on sensitive posts from moving not only outside the country but also from moving from one province to the other and in some cases even moving from one city to the other. The duties of those officials fell under the category of 'essential services', and they could not even resign if they wanted. The violation of this law could result in a 10 year jail term. We told the court that Dr. Khan was appointed on one such sensitive post. We attached a copy of 'Essential Services Act of 1959' with our appeal and posed a question to the court i.e. if Dr. Khan or any one in his capacity is given a choice to risk 10 years jail term by leaving country and coming to Holland to face a 4 year jail term, what would he do. We also added, in mischief, that if Dr. Khan's presence in Holland is so necessary then Dutch government should formally request GOP to ease restriction on him to leave country.

Some of my team member, both Pakistani and Dutch, objected to the blunt tone of the appeal, but Dunn Driver was in agreement with my strategy. We knew that as the prosecution's request for warrant was rejected, it would automatically open the door for the hearing for the appeal. That was the reason that we even went as far as threatening the Dutch court that since it had acted in haste and such carelessness, we might file a complaint in the European Commission for Human Rights.

In medical term, we had injected the whole 'doze' and then we started waiting for the objection from the prosecution. But we were pleasantly surprised when prosecution withdrew its request for a warrant stating that keeping in view all the circumstances they have no objection if warrant is not issued. In Dutch courts most of the arguments are presented in written form and judges only ask questions if an explanation on a point is required, in court. The court commented that it saw no reason to issue a warrant.

Upon our return from the court the whole team danced the Bhangra, and we immediately conveyed the good news to Dr. Khan. He expressed his gratitude and prayed for our further success. Mr. Zaman, who is an avowed five time Namazi, or should I say a six-time a day Namazi, shook my hand and congratulated me. He then confided in me that he was instructed by Law Ministry that in case warrant were issued, he should sent a telegram immediately to the Ministry stating that the case went wrong because of the S.M. Zafar. I believed that even if the court had issued the warrants M.B. Zaman wouldn't have sent a telegram of that nature. But I felt really sorry that people wouldn't stop pulling each others legs despite the case of such national importance. It reminded me of the writing behind the Pakistani buses that says "Jalne waale ka muNh kaala".

The Dutch government was now facing a double-edged sword. On one hand it was being accused of having lax security and on the other hand had any impartial international institutions could conclude by examining the date when subpoena was issued and the day that was set for hearing, that Dutch courts acted hastily, improperly, and unjustly. My colleague Mr. Russell told me later that once he met a prosecution attorney at a social gathering during the case where later told him that the Dutch Foreign Ministry advised its government not to push Dr. Khan and GOP in a corner. Court cases are mostly like a test of nerves where only that opponent wins who has a firm conviction to win the case.

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THE TRIUMPH OF A NATION

Dr. Khan was accused of obtaining information about the Centrifuge technology, whereas, the Dutch Ministry of Defense had declared the project as "Uiterst Gehiem" (Top Secret) and "Vertrowylyk" (Restricted), and it was illegal to obtain information on such projects. The two letters that were written by Dr. Khan, to his friends were falling into that category. The lower court did make a note of the fact that those letters were written in 1977-76 and the case was filed almost seven years later in 1983. The lower court had also commented that the nature of that case was so serious that the statute of limitation would not apply and that the heinous crime was in fact a conspiracy against the whole mankind and court agreed with prosecutions request for a 4 years jail term.

We had already appealed that verdict, as described earlier but now we were required to file all the documents that were required to support our case. The file, that we submitted to support our case, comprised of 11 chapters totaling up to 1000 pages. Our core argument was based on the point, which a computer at the Euro Center had generated in response to my queries, as mentioned earlier. The point was that, since, defendant was denied his basic right to present his case during the investigation phase, the verdict against him was invalid. But proving that point was not as easy. Initially, both Dunn and Russell were not willing to buy into this line of defense. We used to have lengthy arguments and both of them used to take the position that there was no precedence in Dutch legal system where a court had ever overturned its verdict because of the irregularities that had occurred during the investigation; and that if in case some irregularities did occur during the investigation phase then they can be rectified later in the court. Ultimately, the argument that convinced everyone, was that that in this particular case, the irregularities during the investigation phase did occur, but they were not addressed in the court. The court based its verdict entirely on the case presented by the prosecution and the defendant was never given a chance to cross-examine either during the investigation phase or during the court proceedings.

The points that supported our argument in the appeal papers were as follows:

(1) The court should have subpoenaed Dr. Khan through ordinary mail since there was no bilateral treaty between Holland and Pakistan that required GOP to serve a Dutch subpoena to its citizen. The Dutch Criminal Law stipulates that subpoena can be served through mail. The subpoena that court had sent to GOP's Ministry of Foreign Affairs also contained Dr. Khan's address, based on which court requested GOP to serve the subpoena on its behalf. Therefore it is clear that even though the address of Dr. Khan was known, he was not directly sent the subpoena.

(2) The court delivered its verdict in haste. (These details have been elaborated above).


(3) The court must take notice of the fact that the case presented before the lower court was irregular because during the investigation phase Dr. Khan was not given a chance to participate. Later during the court proceedings the defendant was again not given an opportunity to point to the irregularities that occurred during the investigation phase. Therefore court verdict stands annulled.

(4) The (Dutch) government's notification that declares the Nuclear Project as "Uiterst Gehiem" (Top Secret) also stipulates that that any information about it (project) is "Vertrowylyk" (Restricted), as long as the same information is not available from an alternative source. We proved to the court that the aforementioned letters that were written by Dr. Khan in '76 and '77, were on such topics that were already published in scientific journals. We met with several scientists in this regard and provided their expert opinion in this regard to the court. As a matter of fact Holland's own prominent scientists opined the same. It should be a matter of great pride and joy for Pakistani nation, that the Dutch scientists held Dr. Khan in such high regard.


(5) Dr. Khan is designated at a very sensitive post in Pakistan, and he is expected to obey Pakistani law. The local law prevents him to leave the country; therefore, he cannot appear before a court to file an appeal. Therefore, his lawyers must be allowed to present his case on his behalf in order to prevent any infringement on his basic human rights.

In November, we appeared before the court to argue our case. In our rebuttal to the prosecution we stressed on two points to elaborate our case. One point was that Dr. Khan was not given appropriate chance to defend his position during the investigation and the second point was that the letters that Dr. Khan wrote, requested for only that scientific information that was already published and was in public domain.

Upon enquiry from the judge, the prosecutor submitted that both of our points were valid. The court inquired the prosecutor whether prosecution would re-initiate its case from the investigation phase. The prosecution left the matter on court's discretion. At this the court delivered its verdict by repealing the lower court's verdict.

The court's verdict was our complete victory. It proved that the Dutch Courts uphold the law at all costs and that the Dutch lawyers are very professional and respectful to the law. But most of all it proved that Dr. Khan knew how to fight for his rights and principles.