Why Islamabad High Court rejected a petition to stall release of Abhinandan Varthaman [Read Order]

The Islamabad High Court yesterday rejected a petition challenging the decision of Pakistan government to hand over Indian Air Force Pilot, Wing Commander Abhinandan Varthaman to India..The petition was filed by Muhammad Shoaib Razzaq who argued the case in person. He invoked the jurisdiction of the High Court under Article 199 of the Constitution of Pakistan..The matter was heard and rejected by Chief Justice Athar Minallah..So what were the grounds of challenge raised by Razzaq?.The decision to release Abhinandan Varthaman was announced by the Prime Minister of Pakistan on the floor of the Parliament..It was the case of Razzaq that the Prime Minister of Pakistan was not competent to take a decision regarding the release of the Wing Commander..His ground was that the Parliament was not taken into confidence by the Prime Minister of Pakistan. This, he argued, was because the announcement was made by the Prime Minister of Pakistan on the floor of the House and that too during a joint session of the Majlis-e-Shoora. Hence, the decision was taken by ignoring the aspirations of the people of Pakistan and the will of the people..He argued that the Abhinandan Varthaman had violated the sovereignty of Pakistan by unauthorizedly entering into its territory and that it was an act of war..He, therefore, contended that the detained pilot of the Indian Air Force was liable to be proceeded against and court-martialled in Pakistan..Court’s rebuttal.Announcement was made in Parliament, no Parliament member objected.The High Court in its order admitted that the Prime Minister of Pakistan had announced the release of Wing Commander Abhinandan Varthaman on the floor of the House during the joint session of the Majlis-e-Shoora (Parliament)..However, the court pointed out that not a single Member of the National Assembly or the Senate had raised any objection when the announcement was made..“The joint session of the Majlis-e-Shoora (Parliament) was held to deliberate upon the current tense situation at the borders. It was during the said joint session of the Majlis-e-Shoora (Parliament) that the announcement was made by the Prime Minister and affirmed by other Members”, the Court stated in its order..Thus, the petitioner’s argument that the Prime Minister of Pakistan was not competent or that the Majlis-e-Shoora (Parliament) was not taken into confidence is misconceived, the Court ruled..The Majlis-e-Shoora (Parliament) represents every citizen of the Islamic Republic of Pakistan. Moreover, the patriotism of the Members of the Majlis-e-Shoora (Parliament) is beyond doubt and, therefore, apprehensions of the petitioner in this regard are misplaced and not warranted, it held..Matter of foreign policy, defence not within the domain of the judiciary.The second reason given by the Court was that the issue pertained to foreign policy, defence and security of Pakistan and such issues are not justiciable. They do not fall within the domain of a High Court for interference under Article 199 of the Constitution. Interference in such issues will go against the separation of powers envisaged by the Constitution, the Court made it clear..“The decision which was taken by the Prime Minister of Pakistan and announced on the floor of the House during the joint session of the Majlis-e-Shoora (Parliament) pertains to matters of foreign policy, defence and security of Pakistan. It is settled law that such issues are neither justiciable nor fall within the domain of a High Court for interference under Article 199 of the Constitution. It has been unambiguously held by the august Supreme Court that any such interference by the Courts would be violative of one of the foundational principles of the Constitution, which envisages trichotomy of powers between the three branches, namely, Legislature, Executive and Judiciary.” .Framing of a policy is within the exclusive domain of the Executive because the latter is in a better position in this regard because of the mandate, experience, wisdom and sagacity, the Court held..The Legislature represents the people of Pakistan and promulgates laws which are enforced in Pakistan. The Judiciary is entrusted with the task of interpreting the law and to play the role of an arbiter in case of disputes between individuals and between individuals and the State..Thus, courts exercise judicial restraint in policy matters except in cases where it can be explicitly demonstrated that because of the policy, fundamental rights are being violated..So, are fundamental rights violated?.The Court stated in its order that it asked the petitioner whether any of his fundamental rights would be violated if the decision taken by the Prime Minister and announced on the floor of the House is implemented..However, no satisfactory answer was given by the petitioner, the Court said..“The petitioner, despite his able assistance, could not satisfy the Court that his fundamental rights would be violated if the detained pilot of the Indian Air Force is handed over to the authorities of his State.”.Conclusion.The Court concluded that the decisions which are taken by the Parliament, particularly during challenging times, are required to be respected and upheld..Even otherwise, Parliament is competent to affirm policies of the Government and after such affirmation, they cannot be subjected to judicial review..“It is the Majlis-e-Shoora (Parliament) alone which represents the will of the people of Pakistan and the other organs of the State are expected to respect and bow to its decisions.”.In the instant case, the announcement made by the Prime Minister of Pakistan was affirmed by the Parliament in its joint session. Moreover, the decision pertains to policy matters in the context of foreign policy, defence and security of Pakistan and are thus outside the realm of judicial review, the Court held..Hence, the petition was dismissed in limine..Read the order below.