SC all set to define ‘enemy alien’

The top court is all set to examine today [Thursday] a legal term “enemy aliens” which needs to be explained in the context of the Daniel Pearl case. A three-judge bench headed by Justice Umar Ata Bandial will review the question.

A separate bench of the Supreme Court is currently hearing appeals of the PPP-led Sindh government and Daniel Pearl’s parents against the Sindh High Court (SHC) April 2020 order to release the four men accused of abducting and killing the Wall Street Journal’s former South Asia bureau chief in 2002.

A SHC division bench on April 2 commuted the death sentence of Ahmed Omar Saeed Sheikh to seven years and acquitted three others who were serving life terms.

The PPP led provincial government had swiftly challenged the April 2 order in the Supreme Court. The Sindh government had also immediately detained the four men under Section 3 (1) of West Pakistan Maintenance of Public Order (MPO) Ordinance 1960.

The same SHC division bench, however, annulled the detention order on December 24 and ordered the Sindh government to immediately release the four men. This order elicited immediate response from the US which on December 25 expressed its “deep concerns” over the SHC order.

The provincial government had, however, not released the accused as it contended that the Supreme Court’s September 28 order with regard to Daniel Pearl case accused was still in the field.

A separate bench, headed by Justice Bandial, on January 25 issued notices to the Attorney General for Pakistan (AGP) and all advocate generals for legal assistance in the matter. At Monday’s hearing, Sindh Advocate General Suleman Talibuddin claimed that the SHC’s Dec 24 order did not give detailed reasons.

“One of the findings recorded by the [SC] short order is that the respondents [accused persons] are not ‘enemy aliens’ within the meaning of Article 10 (9) of the Constitution. Meaning of this term is hitherto judicially unexplained,” Talibuddin said.

The Sindh government claimed that the accused persons fall in the category of “enemy aliens”.

It told the SC bench that they had placed material as a proof on record of the SCH as justification but the same was rejected. “Now the Sindh government has requested the bench to pronounce authoritative judgment on the law and facts,” said the order-sheet issued by the Bandial bench.

The AG told the bench that the SHC in its short order had barred the Sindh government from exercising its authority under Article 10 except with the permission of the court. He said the same constitutional provision authorizes the provincial government to pass preventive detention of an individual.

The AG contended that the jurisdiction reserved to itself by the SHC is vested by the Constitution in the appropriate review board. As a result the petitioner government has been divested of its powers conferred by the Constitution and regulated by the law, he stated.