The Islamabad High Court (IHC) on Monday issued contempt notices to Prime Minister Shehbaz Sharif and other members of the federal cabinet for failing to submit a response in the case of Dr Aafia Siddiqui.
Dr Aafia Siddiqui, a neuroscientist and educator, was convicted by the United States District Court for the Southern District of New York on charges of attempted murder of US personnel in Afghanistan and has been serving her sentence at the Federal Medical Centre (FMC) Carswell in the US since 2010.
On July 12, the IHC expressed dissatisfaction over the federal government’s failure to submit a report in the case concerning Aafia’s release, health and repatriation, with Justice Sardar Ejaz Ishaq threatening to “summon the entire cabinet ” if the report is not presented.
Justice Ishaq presided over a hearing for the case today. The judge said in his court order that he had warned the additional attorney general while passing his previous ruling that further inaction on the part of the government would lead to the issuance of a contempt notice.
“The government filed an appeal before the Supreme Court against my earlier decision permitting amendments to the petition for continuation of this case,” the order read. “For whatever reason, the government’s case had not been taken up by the Supreme Court.”
The judge said that since the government had not responded with the reasons despite being directed to do so, it was in contempt, leaving him with no option but to issue a notice of contempt to the federal government.
“Office is directed to initiate a contempt petition accordingly, in which all the members of the federal government will be respondents. The replies of all the ministers, including the prime minister, shall be filed within two weeks from today,” the order said.
At the outset of his order, the judge said: “Ever since the demolition squad was catapulted into this high court after the 26th Constitutional Amendment, we have seen one heresy after another hurled at the edifice of justice, maiming it repeatedly and bringing it almost to its last breaths. This is yet another instance. The heresy I speak of now is besieging the dispensation of justice by a judge of the high court by the device of the ‘weekly roster’ controlled by the office of the chief justice. It is both heart-rending and amusing at the same time, a blend of paradox that this high court has become.”
Criticising the government’s actions during the current case, he said, “The machinations of the executive appeared elsewhere, in the form of controlling the proceedings of this court through its roster.”
The judge noted that he was supposed to be on leave this week, but was informed that the cause list would not be issued without the leave of the chief justice, to which he submitted an application. He added that he was informed on Saturday that the chief justice did not sign it.
“I was informed on Saturday that the application was duly moved but the file remained on the table of the chief justice, who did not find even 30 seconds to sign it. Whether that was by design or oversight, I cannot say for sure, but given the manner in which the roster of judges has been used as a tool for the desired outcome in specific cases, and given the government’s stiff opposition to do what is right and to stand by the daughter of the nation at the critical juncture of the motion before a US court, I may be forgiven for thinking that it was the former. The correct legal position is that the office cannot use the shoulder of the chief justice in the exercise of administrative powers to obstruct judicial proceedings ordered by a judge in an ongoing case.”
Justice Ishaq called it “yet another instance of the reproachable use of the administrative power to shackle the exercise of independent judicial authority”, stating that the government’s response, with reasons as to why it would not sign the [amicus brief][4] in the case, would likely be delayed until his leave ended.
“However, the imperatives of justice shall not be defeated by such petty means. To the extent I can, I will exercise my judicial authority to the end of upholding the dignity of the high court and the justice it dispenses.”
Lawyer Imran Shafiq appeared in court on behalf of the petitioner, Dr Fowzia Siddiqui. Former senator Mushtaq Ahmed was also present at the court.
Justice Ishaq echoed his discontent with how the hearing had been scheduled for today, despite his being on leave. “Even if a judge wants to, they cannot work during holidays,” he remarked.
“My holidays were supposed to start today. Once again, administrative power has been used for judicial power.”
The judge added that he still heard the case because of its nature and importance.
“The government has filed an appeal against my decision in the Supreme Court,” the judge said.
Shafiq noted that if the government had to take a stay, “they would have formed a new bench by now”.
“We know how the court functions. Your order is there, the case is being heard today,” he added, addressing the judge.
When asked why Shafiq had not filed his case with the Supreme Court, he replied, “Because Justice Mansoor Ali Shah is there.”
“The case will only be filed when the roster of judges changes,” Shafiq added.
“The court has no other option but to issue contempt notices to the federal government,” Justice Ishaq ruled.
He stated that the next hearing of the case would be held on the first working day after he returned from leave.
