ISLAMABAD: Apparently unhappy over government’s non-compliance of its Dec 10 order to produce 35 missing persons, the Supreme Court ordered Secretary to the Prime Minister Javed Aslam on Friday to bring the matter into the notice of his boss.
A two-judge bench headed by Justice Jawwad S. Khawaja issued the order during the hearing of a case about a missing man named Yasin Shah which was initiated on an application of his elder brother Muhabbat Shah.
The court also directed Khyber Pakhtunkhwa Chief Secretary Mohammad Shahzad Arbab to inform Chief Minister Pervez Khattak about non-compliance of the order.
In its Dec 10 order, the apex court said the army authorities had taken away 35 internees from the Malakand internment centre, but only seven of them were produced before the court. It ordered action against the authorities concerned in the case involving non-compliance of the verdict.
On Friday, the court directed the prime minister and the chief minister to submit by Jan 17 their replies explaining reasons why the Dec 10 judgment had not been complied with. Notice has also been issued to Law Secretary Barrister Zafarullah Khan.
Since July last year, Justice Khawaja observed, the court had been consistently told that the government was serious about addressing the issue of missing persons and that legislation in this regard was in the offing.
“Regrettably, despite different statements made by the federal government, even today there is no legislation in respect of the enforced disappearances other than the Action (In Aid of Civil Power) Regulations, 2011. But the regulations do not address the questions which have arisen in relation to missing persons and the enforcement of fundamental rights guaranteed under Articles 9 and 10 of the Constitution,” he observed.
“We have repeatedly, at least since July last year, been emphasising to the government that in view of these constitutional provisions, no person could be detained or incarcerated without the backing of a valid law,” the order said, adding that it had also been emphasised by the court from time to time that deviation from the constitution and the law by the government would constitute violation of Article 5 of the Constitution, quite apart from undermining the authority of the government. Article 5 asks for showing loyalty to the state and obedience to the constitution.
“There are people who may be called miscreants or insurgents and destabilising the country by not adhering to the constitution and the law,” the court observed. But it regretted that the same was being done by the other side, which was the government by not adhering to the constitution. There are instances when legislation was done overnight when intended.
The order cited the July 31, 2009, Sindh High Court Bar Association case in which it was observed that it would “be for the representatives of the people … to determine if the absence of the rule of law within the upper echelons and formal structures of the state has, in a significant way, generated the lawlessness which permeates our society today”.
Referring to the Dec 19 interim reply which the government claimed to have moved in compliance with the Dec 10 judgment, the court observed that compliance had not been shown in the reply.
Additional Attorney General Shah Khawar had informed the court about submission of the confidential report to the court registrar.
The court also pointed out an additional document purported to be a Dec 12 notification suggesting constitution by the prime minister of a five-member committee headed by Defence Minister Khawaja Asif to discuss the issue of missing persons in depth and submit recommendations with timelines for compliance of the Dec 10 judgment.
The court regretted that the government had also failed to comply with the directives to take action against those responsible for illegal and unconstitutional acts by not producing the missing persons.
The court adjourned the hearing to Jan 20.