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Aitzaz, Kurd to be freed, re-arrested
By Ansar Abbasi
ISLAMABAD: The government is all set to free and then re-arrest immediately three detained lawyers on the expiry of their 90-day detention period on Feb 1 in a move to outmanoeuvre the constitutional bar on preventive detention.
One of the top legal minds of the government confided to The News that the government has decided to free Chaudhry Aitzaz Ahsan, Ali Ahmad Kurd and Justice (retd) Tariq Mehmud for few hours or a day and then re-arrest them by issuing a fresh executive order. About detained judges, including deposed Chief Justice Iftikhar Muhammad Chaudhry, government sources said there is nothing to bother about them because their detention was without any formal order.
"Deposed judges were not under detention," the source said, asking, "if you have any formal order to prove us wrong?" Under the Constitution, no person can be kept in preventive detention for more than 90 days unless a judicial review board certifies that the person is a threat to public safety, but the government has not referred cases of any of three leading lawyers for judicial review.
Under the Constitution their cases are required to be approved by such judicial bodies in case the government intends to retain their preventive detention beyond mandatory period. A top government legal mind, on condition of anonymity, said the government does not intend to set the three lawyers free and their cases would not be referred to the judicial review boards.
The source said the constitutional bar would easily be defeated by freeing detainees for sometime and then getting them rearrested under fresh executive orders. Two of the three lawyers -- Aitzaz Ahsan and Ali Muhammad Kurd -- though arrested on Nov 3 were not detained on one order, but under three successive orders for 30 days each, instead. However, Justice (retd) Tariq was detained for 90 days under one executive order.
Independent sources point out if the government can avoid the 90-day limit by passing three or more one-month orders in succession then the limit can always be flouted and the provision of the Constitution would be meaningless.
"The Constitution cannot be subverted in this manner," a source said. Clause 4 of Article 10 of the Constitution provides as follows: "10. Safeguards as to arrest and detention: (4) No law providing for preventive detention shall be made except to deal with persons acting in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof, or external affairs of Pakistan, or public order, or the maintenance of supplies or services, and no such law shall authorise the detention of a person for a period exceeding three months unless the appropriate Review Board has, after affording him an opportunity of being heard in person, reviewed his case and reported, before the expiration of the said period, that there is, in its opinion, sufficient cause for such detention, and, if the detention is continued after the said period of three months, unless the appropriate Review Board has reviewed his case and reported, before the expiration of each period of three months, that there is, in its opinion, sufficient cause for such detention.
Explanation I: in this Article, "the appropriate Review Board" means (i) in the case of a person detained under a Federal Law, a board appointed by the chief justice of Pakistan and consisting of a chairman and two other persons, each of whom is or has been a judge of the Supreme Court or a high court ; and (ii) in the case of a person detained under a Provincial Law, a board appointed by the chief justice of the high court concerned and consisting of a chairman and two other persons, each of whom is or has been a judge of a high court. Explanation II: the opinion of a review board shall be expressed in terms of views of the majority of its members."
By Ansar Abbasi
ISLAMABAD: The government is all set to free and then re-arrest immediately three detained lawyers on the expiry of their 90-day detention period on Feb 1 in a move to outmanoeuvre the constitutional bar on preventive detention.
One of the top legal minds of the government confided to The News that the government has decided to free Chaudhry Aitzaz Ahsan, Ali Ahmad Kurd and Justice (retd) Tariq Mehmud for few hours or a day and then re-arrest them by issuing a fresh executive order. About detained judges, including deposed Chief Justice Iftikhar Muhammad Chaudhry, government sources said there is nothing to bother about them because their detention was without any formal order.
"Deposed judges were not under detention," the source said, asking, "if you have any formal order to prove us wrong?" Under the Constitution, no person can be kept in preventive detention for more than 90 days unless a judicial review board certifies that the person is a threat to public safety, but the government has not referred cases of any of three leading lawyers for judicial review.
Under the Constitution their cases are required to be approved by such judicial bodies in case the government intends to retain their preventive detention beyond mandatory period. A top government legal mind, on condition of anonymity, said the government does not intend to set the three lawyers free and their cases would not be referred to the judicial review boards.
The source said the constitutional bar would easily be defeated by freeing detainees for sometime and then getting them rearrested under fresh executive orders. Two of the three lawyers -- Aitzaz Ahsan and Ali Muhammad Kurd -- though arrested on Nov 3 were not detained on one order, but under three successive orders for 30 days each, instead. However, Justice (retd) Tariq was detained for 90 days under one executive order.
Independent sources point out if the government can avoid the 90-day limit by passing three or more one-month orders in succession then the limit can always be flouted and the provision of the Constitution would be meaningless.
"The Constitution cannot be subverted in this manner," a source said. Clause 4 of Article 10 of the Constitution provides as follows: "10. Safeguards as to arrest and detention: (4) No law providing for preventive detention shall be made except to deal with persons acting in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof, or external affairs of Pakistan, or public order, or the maintenance of supplies or services, and no such law shall authorise the detention of a person for a period exceeding three months unless the appropriate Review Board has, after affording him an opportunity of being heard in person, reviewed his case and reported, before the expiration of the said period, that there is, in its opinion, sufficient cause for such detention, and, if the detention is continued after the said period of three months, unless the appropriate Review Board has reviewed his case and reported, before the expiration of each period of three months, that there is, in its opinion, sufficient cause for such detention.
Explanation I: in this Article, "the appropriate Review Board" means (i) in the case of a person detained under a Federal Law, a board appointed by the chief justice of Pakistan and consisting of a chairman and two other persons, each of whom is or has been a judge of the Supreme Court or a high court ; and (ii) in the case of a person detained under a Provincial Law, a board appointed by the chief justice of the high court concerned and consisting of a chairman and two other persons, each of whom is or has been a judge of a high court. Explanation II: the opinion of a review board shall be expressed in terms of views of the majority of its members."
