ISLAMABAD: The Islam­a­bad High Court (IHC) on Friday dismissed a petition filed against the release of captured Indian Air Force (IAF) officer Wing Commander Abhinandan Varthaman and held that “the decision pertains to policy matters in the context of foreign policy, defence and security of Pakistan and thus outside the realm of judicial review”.

IHC Chief Justice Athar Minallah took up the petition filed by Barrister Shoaib Razzaq against the decision taken by the government to release and hand over the IAF officer to India.

The petitioner appeared in person before the court and argued that the prime minister was not competent enough to take a decision regarding the release of the IAF pilot who was detained after his aircraft was shot down.

He argued that the Indian pilot had violated the sovereignty of Pakistan by entering into its territory and that it was an act of war. Parliament was not taken into confidence before making announcement of his release and the decision has been taken by ignoring the aspirations of the people of Pakistan, he added.

The petitioner suggested that the IAF officer was liable to be proceeded against and court martial should be conducted against him in Pakistan.

Justice Minallah asked the petitioner “on what basis does he assert that parliament was not taken into confidence because the announcement was made by the prime minister on the floor of the house and that too during a joint session of the Majlis-i-Shoora (parliament)”.

The court observed that “it is an admitted fact that the prime minister of Pakistan had announced the release of the detained pilot of the IAF on the floor of the house…It is also not denied that not a single member of the National Assembly or the Senate had raised any objection when the announcement was made”.

The court order noted that “the joint session of the Majlis-i-Shoora (parliament) was held to deliberate upon the current tense situation at the borders. It was during the said joint session of the Majlis-i-Shoora (parliament) that the announcement was made by the prime minister affirmed by other members.”

It further stated: “The petitioner’s arguments that the prime minister of Pakistan was not competent or that the Parliament was not taken into confidence is, therefore, misconceived.

“The patriotism of the members of parliament is beyond doubt and, therefore, apprehensions of the petitioner in this regard are misplaced and not warranted.”

According to the court, the prime minister’s decision pertains to the matters of foreign policy, defence, and security of Pakistan. Such issues are neither justiciable nor fall within the domain of a high court for interference under Article 199 of the constitution.

Justice Minallah, while differentiating the powers of the state’s pillars, wrote down in the order that “the Constitution is based on the principles of trichotomy of powers between legislature, executive and judiciary. Framing of policy is within the exclusive domain of the executive because of the mandate, experience, wisdom and sagacity.

“The legislature represents the people of Pakistan and primarily promulgating the law, the judiciary is entrusted with the task of interpreting law and to play the role of an arbitrator”.

When the court asked whether the release of the IAF officer violated his fundamental rights, the petitioner could not give satisfactory reply.

The court order went on to say that “the decisions which are taken by the parliament, particularly during challenging times, are inevitably required to be respected and upheld. Even otherwise, parliament is competent to affirm policies of the government and after such affirmation, they cannot be subjected to judicial review”.

Subsequently, the court held that “the petition is not justiciable under Article 199 of the Constitution and is, therefore, accordingly dismissed in limine”.

Published in Dawn, March 2nd, 2019