Islamabad High Court Rejects Plea Against Release Of Abhinandan Varthaman

 

         Can you tell me the name of one good Indian or even one good human being who is not proud of the release of Indian Air Force Wing Commander WC Abhinandan Varthaman from Pakistani custody? Each and every person who is humane whether he/she is Indian or Pakistani or anyone else is overjoyed on learning the news of the release of Abhinandan! Our whole nation drowned in joy the moment news started pouring in that Islamabad High Court rejects plea against release of Abhinandan and thus decks were cleared for his early release!

Needless to say, Abhinandan has undoubtedly emerged as a great national icon after he was successful in making sure that even with the old Mig 21 Bison fighter jet of the 1960s,  Pakistan’s advanced F-16 fighter jet which had intruded into India was hit hard! Abhinandan  shot down the plane before his own went down, forcing him to eject and he fell into Pakistani territory and captured by Pakistani Army! Abhinandan’s family has served the Indian Air Force for generations, since the Second World War. Air Marshal S Varthaman who is a recipient of several honours, including a Param Vishisht Seva Medal said in a message that, “Abhi is alive, not injured, sound in mind, just look at the way he talked so bravely… a true soldier… we are so proud of him.” India stands one in celebrating his release!

Of course, even the film industry too expressed its happiness over his release. Bollywood superstar Shah Rukh Khan too cheered the moment and took to Twitter to express his happiness. He wrote on Twitter that, “There is no better feeling than Coming back Home, for home is the place for love, hope & dreams. Ur bravery makes us stronger. Eternally grateful. #WelcomeBack Abhinandan.” It is not just film industry alone but each and every citizen of India as also all good human beings in every part of the world who celebrated his release. Ram Nath Koind who is President, Narendra Modi who is PM and Rahul Gandhi who is leader of Congress which is the main Opposition party among others all were equally delighted on seeing him getting released!

Be it noted, the Islamabad High Court in Muhammad Shoaib Razzaq Versus Federation of Pakistan through the President & 5 others in W.P. No. 786/2019 dated March 1, 2019 has clearly and convincingly dismissed a plea by Barrister Shoaib Razzaq in person seeking to stop the release of IAF pilot Wing Commander Abhinandan Varthaman. Razzaq vehemently contended that Abhinandan had committed a crime against the country and should be put on trial there. But all his arguments fell flat as Islamabad high Court refused to buy them and gave valid reasons for doing so!

First and foremost, this latest, landmark and laudable judgment delivered by Athar Minallah who is Chief Justice of High Court of Islamabad sets the ball rolling in para 1 wherein it is observed that, “The petitioner has invoked the jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the ‘Constitution’) aggrieved from the decision taken by the Government of Pakistan to release and handover Wing Commander V Abhinandan to India.”

As it turned out, it is then pointed out in para 2 that, “The petitioner has appeared in person and has been heard at length. It is his case that the Prime Minister of Pakistan was not competent to take a decision regarding release of the pilot of the Indian Air Force, namely, Wing Commander V Abhinandan who was detained after his aircraft was shot down. He has argued that the latter had violated the sovereignty of Pakistan by unauthorizedly entering into its territory and that it was an act of war; the Parliament was not taken into confidence; the decision has been taken by ignoring the aspirations of the people of Pakistan; the detained pilot of the Indian Air Force is liable to be proceeded against and court martialled in Pakistan.

To be sure, it is then stated in para 3 that, “The learned Counsel was asked as on what basis does he assert that the Parliament was not taken into confidence 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 (Parliament).”

More importantly, it is then clearly and convincingly held in para 5 that, “It is an admitted fact that the Prime Minister of Pakistan had announced the release of the detained pilot of the Indian Air Force, namely, Wing Commander V. Abhinandan on the floor of the House and that too during the joint session of the Majlis-e-Shoora (Parliament). It is also not denied 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 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, therefore, misconceived. 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.”

What’s more, it is then elegantly exemplified in para 6 stipulating that, “It is noted that 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. Reliance is placed on the cases of ‘Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan and another’ [2014 SCMR 111] and ‘Syed Yousaf Raza Gillani, Prime Minister of Pakistan v. Assistant Registrar, Supreme Court of Pakistan and another’ [PLD 2012 SC 466]. Moreover, it has been held that the Constitution is based on the principles of trichotomy of powers between 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 Legislature represents the people of Pakistan and primarily 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. It is on the basis of this rationale that 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. Reliance is placed on the cases of ‘OGRA through Secretary v. Messrs Midway II, CNG Station and others’ [2014 SCMR 720], ‘Mesrs Power Construction Corporation of China Ltd. Through Authorized Representative v. Pakistan Water and Power Development Authority through Chairman WAPDA and 2 others’ [PLD 2017 SC 83] and ‘Mehmood Khan Achakzai and others v. Federation of Pakistan and others’ [          PLD 1997 SC 426].”

Above all, the Islamabad High Court then in para 7 observes that, “The petitioner was asked 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. The petitioner, despite his able assistance, could not satisfy this 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. The decisions which are taken by the Majlis-e-Shoora (Parliament), particularly during challenging times, are inevitably required to be respected and upheld. Even otherwise Majlis-e-Shoora (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 Majlis-e-Shoora (Parliament) in its joint session. Moreover, the decision pertains to policy matters in the context of foreign policy, defence and security of Pakistan and thus outside the realm of judicial review.”

Lastly, para 8 then concludes this classic, courageous and commendable judgment by holding that, “For what has been discussed above, the instant petition is not judiciable under Article 199 of the Constitution and is, therefore, accordingly dismissed in limine.”

All said and done, we thus see that the Islamabad high Court has clearly and very rightly refused flatly to stop the IAF pilot Wing Commander Abhinandan Varthaman from being released as approved by the Pakistan’s PM Imran Khan and Parliament of Pakistan! The petitioner miserably failed in satisfying the court that his fundamental rights would be violated if the detained pilot Abhinandan is handed over to the authorities of the State! So the decks for Abhinandan’s release were cleared further and he was freed finally after 3 days of captivity! Also, Pakistan was bound by the Geneva Conventions to release him and until released treat him properly!

Sanjeev Sirohi