Matters of jurisdiction: High court seeks petitioner’s assistance in case against drone strikes

Wants to determine whether it has authority to hear cases related to foreign affairs.

PESHAWAR: The Peshawar High Court (PHC) on Thursday directed a petitioner to help it determine whether the judiciary had the authority to deliberate on a case against US drone strikes. The court issued these instructions in light of a Supreme Court judgment last year which declared the apex court could not decide on matters of foreign affairs.

A division bench of Chief Justice Mazhar Alam Miankhel and Justice Waqar Ahmad Seth was hearing a contempt of court petition against the government for not complying with a PHC order.



When the bench took up the case for hearing, petitioner Barrister Akbar of the Foundation of Fundamental Rights told the court that former PHC CJ Dost Muhammad Khan delivered a judgment on May 9, 2013 declaring the strikes a war crime. The court also directed the federal government to raise the issue in the United Nations.

Akbar contented the previous order had not been complied with and the strikes continued to violate the sovereignty of the country.

Additional Attorney General of Pakistan Syed Attique Shah told the bench that the replies of Ministry of Foreign Affairs had already been submitted and showed that the issue had been raised before the UN and by the prime minister in his visits to the US.

Shah also produced a SC judgment in which the apex court declared it had no jurisdiction in cases related to foreign affairs. The PHC bench subsequently directed the petitioner to help the court determine whether it had the authority to hear such a case on the next date of hearing.

Barrister Akbar told The Express Tribune outside the courtroom that there had been 30 drone strikes since the PHC declared them a war crime. He claimed the issue had not been raised at any diplomatic forum.

“The replies of the ministry are misleading. Also, the PHC ordered compensation for the victims, but nothing has been done in this regard,” he maintained.

The petitioner also said that the Yemeni government collected [an amount equivalent to] Rs15 million for each victim killed in US drone strikes and the compensation was reportedly given by the US.”

A PHC division bench on May 9, 2013 declared, “A proper warning should be administered in this regard and if that does not work, the government of Pakistan and state institutions, particularly security forces, shall be under constitutional and legal obligations to shoot down drones attacking Pakistani territories or when they enter the airspace of Pakistan’s sovereign territory.”

It further stated that Pakistani authorities had been directed to raise the matter before the UN Security Council, adding if the matter was not resolved, an urgent meeting of the UN General Assembly be requisitioned.

Later that year on September 4, an SC division bench of Justice Mian Saqib Nisar and the then senior-most judge, Justice Tassadaq Hussain Jillani, dismissed a plea against the controversial drone programme in tribal areas, saying matters related to defence, security and foreign policy did not fall under the judiciary’s domain.

The petition, filed by the Wukala Mahaz Barae Tahaffuze Dastoor (Lawyers’ Front for the Protection of the Constitution), urged the court to direct the federal government to declare the US an ‘enemy state’ and ‘command the armed forces of Pakistan to defend the country against external aggression currently being carried out by American forces’.

Upon hearing the plea, the two-member bench of SC ruled that making any ‘executive decisions’ on such matters did not fall within the judiciary’s purview.

Published in The Express Tribune, October 31^st, 2014.