Short order: PHC dismisses petition against federal govt on drone strikes

AAG says the state has raised the issue before the UN.

PESHAWAR: The Peshawar High Court (PHC) on Wednesday dismissed a contempt petition filed against the federal government for failing to comply with a previous order to end CIA-orchestrated drone strikes on Pakistani soil.

Earlier the court stated if the strikes did not end, the government had the authority to shoot down the unmanned aircraft.

It was dismissed by the division bench of Chief Justice Mazhar Alam Miankhel and Justice Syed Afsar Shah as they heard the contempt of court petition filed by the Foundation for Fundamental Rights through its counsel Barrister Shehzad Akbar.



When the bench took up the petition for hearing, nobody was present on behalf of the petitioner. However, the bench was told by Additional Attorney General of Pakistan Syed Attique Shah that the federal government had complied with its previous order.

Shah added the Ministry of Foreign Affairs submitted its comments, showing the federal government has raised its concerns over drone strikes before the UN.

“The prime minister told the 68th meeting of the UN General Assembly in September that drone strikes in tribal areas are counterproductive,” he said.  “Also, it was told such strikes are against the sovereignty of Pakistan.”

The additional attorney general quoted an earlier order of the Supreme Court (SC), saying a petition was dismissed on the grounds that drone strikes were a foreign policy matter and the judiciary could not entertain such petitions. Shah argued this contempt of court petition was also non-maintainable.

After hearing the arguments of the additional attorney general, the court issued a short order and dismissed the petition.

On October 29, the division bench of PHC CJ and Justice Waqar Ahmad Seth directed the petitioner to assist the court in the instant case and determine whether it had the jurisdiction of proceeding in matters related to Pakistan’s foreign affairs in light of the Supreme Court judgment.

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

A PHC division bench, headed by former CJ Dost Muhammad Khan, on May 9, 2013 passed an order against the strikes.

“A proper warning should be issued 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 obligation to shoot down drones attacking Pakistani territories or when they enter the airspace of Pakistan’s sovereign territory,” read the judgment.

It further ordered the state to take up the matter before the UN Security Council. The court said if that didn’t work, Pakistani authorities needed to requisition a meeting of the UN General Assembly to resolve the matter effectively.

On September 4, 2013 the SC division bench of Justice Mian Saqib Nisar and the then senior-most judge, Justice Tassaduq Hussain Jillani, dismissed a plea against the controversial drone programme in tribal areas because matters pertaining 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.”

The petitioners also requested “if the nuclear arsenal is found to be incapable of protecting Pakistan and instead poses a threat to its survival, the federation may be directed either to sell it in the international market to the highest bidder or place it in the safe custody of Iran.”

Published in The Express Tribune, December 4^th, 2014.