Islamabad HC | Petition challenging release of IAF WC Abhinandan Varthaman rejected

“Decisions which are taken by the Majlis-e-Shoora (Parliament), particularly during challenging times, are inevitably required to be respected and upheld.”

Islamabad High Court: Hours before release of Indian Air Force pilot Wing Commander Abhinandan Varthaman, the Bench of Athar Minallah, CJ. was hearing petition filed by a Pakistani citizen under Article 199 of the Constitution of Islamic Republic of Pakistan, seeking to stop Prime Minister Imran Khan’s government from handing him over to Indian authorities.

Wg Cdr Varthaman was captured by Pakistan Army on 27-02-2019 after his MiG 21 fighter jet crash-landed in PoK following a fierce dogfight with F-16 fighter jets of Pakistan Air Force which had intruded into Indian airspace. India had categorically rejected Imran Khan’s call for a dialogue, saying there would be “no deal” on Wg Cdr Varthaman’s release. Amid mounting international pressure, PM Imran Khan, in a joint session of Majlis-e-Shoora (Parliament) on 28-02-2019, announced the release of Wg Cdr Abhinandan as a “peace gesture”.

The petitioner appeared in person and argued that PM of Pakistan was not competent to take this decision; the Parliament was not taken into confidence; and the decision had been taken ignoring aspirations of the people of Pakistan. It was argued that Wg Cdr Varthaman violated the sovereignty of Pakistan by unauthorizedly entering into its territory which was an act of war; and that he was liable to be proceeded against and court-martialed in Pakistan.

The Court noted that release of Wg Cdr Varthaman was announced on floor of the House during joint session of Parliament, deliberately keeping in mind tense situation at the border. Not a single member of the National Assembly or Senate had raised any objection to the said announcement. The decision pertained to matters of foreign policy, defence and security of Pakistan; and such issues were neither justiciable nor fell within the domain of a High Court for interference under Article 199 of Constitution. Reliance in this regard was placed on Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan, 2013 SCC OnLine Pak SC 57.

Further, Majlis-e-Shoora represents every citizen of Pakistan. Patriotism of its members is beyond doubt and, therefore, petitioner’s apprehensions in this regard were misplaced and not warranted. Majlis-e-Shoora is competent to affirm policies of the Government and after such affirmation, they cannot be subjected to judicial review. It is the Parliament alone which represents will of the people of Pakistan, and other organs of the State are expected to respect and bow to its decisions. Thus, petitioner’s arguments were misconceived.

Lastly, the Court noted that petitioner had not been able to satisfy this Court that his fundamental rights would be violated if the detained pilot of the Indian Air Force was handed over to Indian authorities.

In view of the above, the petition was dismissed in limine. [Muhammad Shoaib Razzaq v. Federation of Pakistan, WP No. 786 of 2019, Order dated 01-03-2019]

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