Senior law officer believes that both the FCC and petitioner misunderstood Imran Khan’s ‘release force’
As the Pakistan Tehreek-e-Insaf (PTI) prepares to launch an agitation campaign demanding the release of former prime minister Imran Khan, the Federal Constitutional Court (FCC) has fixed for hearing two separate cases: one challenging the formation of the “release force” by the PTI founder, and the other contesting the Khyber-Pakhtunkhwa (K-P) government’s decision to withdraw cases related to the May 9 riots.
A three-judge bench led Chief Justice Aminuddin Khan will take both petitions on July 29.
First constitution petition has been filed under Article 175 E of the Constitution by Islamabad-based advocate Malik Zaheer Ahmed through Advocate Ali Nawaz Kharal.
The petition seeks a declaration that the formation or mobilisation of the so-called “Imran Khan release/rihai force” is prohibited, and that any attempt to constitute, organise, or mobilise such a private force or militia would be illegal, unconstitutional and in violation of articles 5, 17, and 256 of the Constitution, as well as the Private Military Organisations (Abolition and Prohibition) Act, 1973.
The same bench on April 1 sought a response from Khyber-Pakhtunkhwa Chief Minister Sohail Afridi within ten days regarding the formation of PTI founder Imran Khan’s “release force”. Now the matter is listed for hearing after almost three months.
According to the petition, the K-P chief minister on February 18 made a public statement widely circulated in print, electronic, and social media announcing the intention to form a force described as the “Imran Khan Release Force”, also referred to as the “Imran Khan Rehai Force”, aimed at securing the PTI founder’s release, who is incarcerated in connection with various criminal cases and has convictions upheld by competent courts.
The petitioner expressed concern that similar terminology used in the past by political parties had led to the emergence or at least the perception of militant wings linked to them, including groups such as the Al-Zulfiqar Organization historically associated with the Pakistan Peoples Party, and militant elements previously attributed to the Muttahida Qaumi Movement.
The petition contends that Article 5 of the Constitution imposes a fundamental duty on every citizen including public office holders to remain loyal to the state and abide by the Constitution and the law, and any action contrary to this is ultra vires the Constitution.
A senior law officer believes that both the FCC and petitioner misunderstood the Imran Khan’s “release force”.
Actually, it is Imran Khan’s “release force movement” and there is no intention to establish a militia force for this purpose, he adds. He clarified that it has no link with the provincial government.
Meanwhile, the same bench will also take up petition filed by the Pakistan Broadcasting Corporation (PBC), seeking the transfer of the criminal case regarding the attack on Radio Pakistan Peshawar from K-P to a competent anti-terrorism court in Federal Capital Territory Islamabad or any other province, in the interest of justice, in view of the alleged political pressure and executive interference that have undermined the prospects of a fair trial.
The FCC while hearing Radio Pakistan’s petition on March 24, passed a restraining order regarding the withdrawal of the May 9 cases.
A senior official in the K-P Law Department, speaking to The Express Tribune, expressed surprise that the FCC passed a restraining order when the K-P government has yet to move an application in the ATC, adding that there should first be a cause of action.
“It would have been better if the FCC had heard the K-P Prosecution Department before passing the restraining order,” he added.
Regarding the K-P cabinet’s decision on withdrawing all May 9 cases, he stated that the cabinet only decided to withdraw “politically motivated cases” and cases lacking clear evidence against the accused.
He also said there were a total of 29 terrorism-related cases in the K-P, of which 23 have already been decided. Likewise, 319 cases related to the May 9 incidents were filed in ordinary courts, of which 285 have already been decided.
On the transfer of ATA cases from one province to another, the official contended that it is the domain of the chief justice concerned to pass such an order under the law.
He said that the mechanism regarding the transfer of cases from province to other is already provided in the law.
Lawyers are questioning the Federal Constitutional Court’s (FCC) decision to seek replies from the respondents without first deciding the maintainability of the petitions.
In the past, the Supreme Court was criticised for exercising public-interest jurisdiction without deciding the maintainability of petitions. The SC was also being questioned over its involvement in political controversies.
Interestingly, there is no official notification regarding Imran Khan’s “release force”. Dozens of PTI-related cases have been transferred from the Supreme Court to the FCC. However, these cases have yet to be fixed for hearing.
The Supreme Court Practice and Procedure Act is still applicable in the Supreme Court to ensure transparency in the chief justice’s powers regarding case fixation and bench formation.
On the other hand, the chief justice is the master of the roster in the FCC. The chief justice’s powers to fix cases and form benches are not regulated in the FCC.
Interestingly, two-member benches are hearing cases related to the interpretation of law and the Constitution. Earlier, political parties had raised concerns over the lack of representation from every province on benches hearing constitutional matters.
Despite a case pendency of 22,746, only seven judges are currently serving in the FCC.
The FCC judges are also facing a “battle of perception” since they were appointed by the federal government, which is expected to be the primary litigant before the court.
The challenge now confronting the judges is to demonstrate that they are not “executive-minded” and will dispense justice “without fear and favour”. Superior bars which challenged the 26th Constitutional Amendment are not interested in filing petitions against the 27th Amendment.
