ISLAMABAD: The Supreme Court on Thursday ruled that it had jurisdiction under the constitution to serve notices to intelligence agencies as no one was above the law.
“The Supreme Court has wider jurisdiction under Articles 184(3) and 185 of the constitution to issue notices to the respondents in cases of public importance,” the court ruled.
A three-member Supreme Court bench comprising Chief Justice of Pakistan Justice Iftikhar Muhammad Chaudhry, Justice Ghulam Rabbani and Justice Khalilur Rehman Ramday was hearing a case of 11 missing prisoners of Adiala Jail, allegedly handed over to intelligence agencies by the jail authorities.
Attorney General Anwarul Haq, who had said the heads of the agencies could not be made respondents in constitutional petitions, said he was withdrawing his statement when the court passed critical remarks on the reply submitted by the intelligence agencies on Wednesday.
In their reply, heads of the secret agencies said that 11 missing inmates of the Adiala Jail were not in their custody, agencies could not be made respondents in the constitutional petitions and pleas of missing prisoners’ legal heirs making the agencies respondents were not maintainable.
The court asked the attorney general to explain under which law were the intelligence agencies functioning in Pakistan and which law said they could not be made party to a case. The attorney general said there was no specific law regulating the functioning of the secret agencies, adding that under Section 29 of the Civil Procedure Code (CPC), notices could be issued to the federation.
He said by name or by designation, the heads of the agencies could not be issued notices. The chief justice said the CPC was a subordinate legislation, whereas the SC, under Articles 184(3) and 185 of the constitution, had wider powers and jurisdiction and could issue notices to anyone as ‘no one is above the law’.
He said the replies submitted by the intelligence agencies did not even carry signatures of their heads. The chief justice said various objections and important points had been raised in the reply, adding that such objections had far-reaching ramifications.
“Prima facie you know Mr Attorney General about the evidence in the case and being a chief law officer, it’s your responsibility to assist the court and resolve the matter amicably,” the chief justice said. He asked the AG to quote a single provision that barred the SC from issuing notices to the agencies’ heads, adding they are governed by the constitution and not CPC or any other law.
The AG said the court could give its judgement to which the chief justice said the court wanted to resolve the matter instead of opening a Pandora’s box. Justice Ramday observed that in certain cases of state affairs, judgements were not passed, but one had to perform wisely.
“If you want to cause clashes among the institutions which you did, you have to think about it,” Justice Ramday said to the AG, adding that it seemed that the AG was not cautious about implications of the matter.
He said it was the state’s prime responsibility to provide protection to its people, adding that the only issue before the court was to know the whereabouts of the 11 missing prisoners.
“Try to resolve the issue instead of generating it,” Justice Ramday told the AG. He, however, sought more time to go through the replies submitted by the Punjab home secretary and the Rawalpindi DCO through Punjab Additional Advocate General Khadim Hussain Qaisar.
The Punjab additional advocate general said the police report pertaining to the case was very obvious. A senior official, asking not to be named, said the Punjab home secretary in his reply had stated that the missing prisoners were handed over to the intelligence agencies by the Adiala Jail authorities.
The court, however, sought comprehensive replies from the former Punjab home secretary, the RPO and the DCO of Rawalpindi until December 13 and gave directions that the copies should also be provided to the counsel for the petitioners.
