Pakistan faces constitutional challenge on detained judges

By IANS

Islamabad : The Pakistani government faces a constitutional challenge on keeping deposed Supreme Court chief justice Iftikhar Muhammad Chaudhry and other judges in detention beyond the Jan 31 deadline of 90 days.


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Under the constitution, no individual can be kept in preventive detention for more than 90 days unless a judicial review board certifies that he or she is a threat to public safety.

Former chief justice Iftikhar Muhammad Chaudhry and other judges were removed after an emergency was imposed last November.

“But the government has yet to refer the cases of the judges who are completing their 90-day detention on Jan 31 to any such review board,” The News reported Tuesday.

“Sources insist that the government does not intend to set them free and is also reluctant to refer these cases to the judicial review boards. Interestingly, caretaker Interior Minister Hamid Nawaz is simply denying that any of the deposed judges is under preventive or any other type of detention,” it added.

In case of former Supreme Court Bar Association chief Aitzaz Ahsan and two other lawyers who have also been detained, the interior minister said that their cases were being dealt with by the provincial governments and not by his ministry.

When it was pointed out that lawyer Tariq Mehmood was under detention in Islamabad, Nawaz said the capital’s administration would decide on his case.

“It is learnt that while the government does not recognise the fact that any of the deposed judges is under detention, as they have not been detained under any legal order, top legal aides of President Pervez Musharraf are opposing the formation of review boards for the legally detained lawyers,” The News said.

“It is being asserted that the three lawyers have not been detained for 90 days under one order. Instead they have been detained under three successive orders for 30 days each. As such, none of the orders can be reviewed by the board.

“The government has, therefore, not informed the respective chief justices as yet about the need for them to name the judges who will constitute the boards, although the time-limit is about to expire,” the newspaper added.

Attorney General Malik Qayyum confirmed to The News that the government has not yet requested the superior judiciary to constitute the review boards.

“Independent sources, however, point out that if the government can avoid the 90-day limit by passing three or more one-month orders in succession, then the limit can always be flouted and the provision of the constitution would be meaningless,” The News said.

According to the sources, even if the government sidesteps its constitutional obligation, “this would be a first real test for the post-Nov 3 judiciary to show its independence and take suo moto notice of the situation where not only the deposed judges are under illegal detention but the three lawyers are also not free and are likely to be retained under preventive custody after 90 days”.

Government sources admitted that the likes of the deposed chief justice and lawyer Ahsan were “clearly perceived” as a “threat” to the government’s concept of public safety and it was to be “expected” that the government will make “all efforts” to keep them in custody and out of the public eye.

“But now the issue will be whether the government refers these cases to the judiciary and in case it does, if it succeeds in convincing three judges in each case that the detained deposed judges and three lawyers need to be continued to be detained even if they pose no threat to public peace and only participate and lead peaceful, unarmed demonstrations”, The News maintained.

It quoted a source close to Ahsan as saying that the detained lawyers were “not very hopeful but they feel if the review boards are not constituted the lawyers’ movement and their agitation is likely to intensify particularly in the Lahore High Court as elections of the bar association approach almost at the same time as the general elections (in mid-February)”.

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