Appeal: Intra-court appeal filed against man’s detention at Guantanamo Bay

High court dismissed previous petition on maintainability grounds

ISLAMABAD: A Pakistani citizen detained at Guantanamo Bay detention camp has challenged the June 18 Islamabad High Court order dismissing a previous petition on grounds of maintainability.

Petitioner Mohammad Shafi through his counsel Mirza Shahzad Akbar has challenged the order through an intra-court appeal requesting the court to set aside the past single bench order as the court failed to exercise its jurisdiction properly, acted beyond the scope of jurisdiction vested by the law, and misread the parties’ pleadings.

Shafi has approached the IHC saying his brother-in-law Mohammad Ahmed Ghulam Rabbani was one of many prisoners picked up by Pakistani intelligence officials from Karachi in Dec 2001, subjected to physical torture and handed over to US authorities in Jan 2002 without any charges or right to defend himself.

The petitioner said Rabbani had gone missing a month after he married his sister. After five years, the family was informed that he was in American custody at the Caribbean island naval base.

In Aug 2003, Rabbani was transferred to Bagram Theater Internment Facility in Afghanistan, before being shifted to Guantanamo Bay in Jan 2004, where he has been receiving terrible treatment.

The petitioner made the ministries of interior, defence, foreign affairs and former president General (retd) Pervez Musharraf respondents and requested the court to order the respondents to make immediate arrangements to repatriate Rabbani.

Rabbani was abducted during the Musharraf regime and the former dictator has admitted in his book that he handed over 369 of 689 detained Pakistanis to the US government, the petitioner writes, adding that Rabbani was one of them.

In the previous order, Justice Athar Minallah had stated that it is not disputed that the Rabbani is being held at the US naval base, but it has been strongly denied by the responds that Rabbani was picked up from Karachi and handed over to the US authorities. “It is settled law that disputed questions of fact cannot be resolve while exercising jurisdiction under Article 199 of the Constitution,” stated the order.

In its written report, the ministry of interior had submitted that Rabbani is being held at Guantanamo Bay and a two-member delegation had visited him and other Pakistani detainees in June 2012. On the issue of seeking release of the Pakistani prisoners in Guantanamo Bay, the prime minister constituted an Inter-Ministerial Committee under interior ministry in May 2014 to examine the issue and offer recommendations, it added. “The Ministry of Interior is the focal point for the matter,” it stated.

Akbar had submitted a rejoinder and referred to a report released by the US Senate Committee on Intelligence in December 2014 and concluded that Rabbani was picked up after the CIA misidentified him as high ranking Al-Qaeda member Hassan Ghul. He alleged that the ministerial committee by the prime minister is a mere smokescreen.

Akbar argued that the court had failed to properly appreciate the rejoinder to the respondents’ replies, adding that the ground reality was that the committee had no contact with any Guantanamo detainee or with their family members. The appellant wrote a letter to the committee, but has gotten no response or acknowledgement till date, he added.

Akbar also stated that the written reply and the judge had not mentioned what measures the committee had taken since its inception, what future strategy it had to accomplish the task assigned to it, and how long it might take the committee to bring detainees back to Pakistan.

In similar cases, the Lahore High Court ordered the repatriation of at least six Pakistani citizens illegally held by the US at Bagram, Akbar said, adding that ministry of foreign affairs pursued repatriation on the basis of the court order and were successful in bringing the citizens back to Pakistan.

Published in The Express Tribune, July 11^th, 2015.