ISLAMABAD - The federal government on Wednesday approached the Supreme Court of Pakistan and challenged the Islamabad High Court (IHC) decision to appoint an eleven-member commission to enquire and investigate into the grievances of students belonging to the province of Balochistan regarding “racial profiling” and enforced disappearances.
In this regard, a single bench of the IHC comprising Chief Justice of IHC Justice Athar Minallah had issued the directions for constitution of a commission while hearing a petition seeking recovery of a missing person Hafeez Baloch a student of Quaid-e-Azam University (QAU).
The IHC bench also directed Secretary Ministry of Interior to set up a mechanism to receive complaints from students belonging to Balochistan and to ensure that they do not have any apprehension while visiting their home towns in the province.
In the petition, the Ministry of Interior raised different questions of law which included that whether the Single Bench has not exercised the jurisdiction vested in it and has exercised the jurisdiction not so vested, whether the High Court has not exceeded its territorial jurisdiction by appointing the commission for inquiry and investigation into the grievances of students regarding “lack of security, racial profiling and enforced disappearances” whilst visiting their home towns in Balochistan and whether the impugned order is arbitrary and based upon hypothesis hence not sustainable in the eyes of law?
It further asked that whether the question of paramount public importance does not come within the ambit of Article 199 of the Constitution of Pakistan therefore the High Court had no jurisdiction to entertain such petition and pass the impugned order hence the same is liable to be set aside and this action of the High Court amounts to the judicial over-reach?
The ministry continued that whether the 11-member commission appointed by the IHC single bench which includes the members/office bearers of political parties, constitutional bodies, government departments and other organisations politicised the issue and whether the high court has the jurisdiction over the office of the Chairman Senate to make it part of a commission to be answerable to the court?
Grievances of Baloch students regarding enforced disappearances
The petition contended, “The impugned order is against the law and facts of the case and is based on misreading and non-reading of the record and also misapplication of the law therefore not sustainable.” It added, “The impugned order is arbitrary in nature based upon hypothesis hence not sustainable in the eyes of law.”
Therefore, the ministry prayed that the petitioner be granted Leave to Appeal against the impugned order in the interest of justice. It also prayed that the impugned order be suspended during the pendency of the case.
In its written order, the IHC Chief Justice said, “It is intolerable for any citizen to have reasonable ground to believe that he or she may be subjected to racial discrimination.” This is definitely one of the worst forms of human rights violations and intolerable in a society governed under the Constitution. “It, prima facie, appears to the court on the basis of what has been observed during these proceedings that the grievances regarding racial discrimination, enforced disappearances and lack of response by state functionaries are not unfounded.”
“Keeping in view the grave nature of violation of fundamental rights and likely profound consequences of failure to urgently redress the grievances, the court hereby appoints a commission to enquire and investigate into the grievances of the students belonging to Balochistan regarding ‘racial profiling’, enforced disappearances and lack of response by state functionaries,” maintained Justice Athar.
The bench also said that Secretary, Ministry of Human Rights shall forthwith issue a notification of the Commission and fix the date for its first meeting after coordinating with the members.
In this regard, a single bench of the IHC comprising Chief Justice of IHC Justice Athar Minallah had issued the directions for constitution of a commission while hearing a petition seeking recovery of a missing person Hafeez Baloch a student of Quaid-e-Azam University (QAU).
The IHC bench also directed Secretary Ministry of Interior to set up a mechanism to receive complaints from students belonging to Balochistan and to ensure that they do not have any apprehension while visiting their home towns in the province.
In the petition, the Ministry of Interior raised different questions of law which included that whether the Single Bench has not exercised the jurisdiction vested in it and has exercised the jurisdiction not so vested, whether the High Court has not exceeded its territorial jurisdiction by appointing the commission for inquiry and investigation into the grievances of students regarding “lack of security, racial profiling and enforced disappearances” whilst visiting their home towns in Balochistan and whether the impugned order is arbitrary and based upon hypothesis hence not sustainable in the eyes of law?
It further asked that whether the question of paramount public importance does not come within the ambit of Article 199 of the Constitution of Pakistan therefore the High Court had no jurisdiction to entertain such petition and pass the impugned order hence the same is liable to be set aside and this action of the High Court amounts to the judicial over-reach?
The ministry continued that whether the 11-member commission appointed by the IHC single bench which includes the members/office bearers of political parties, constitutional bodies, government departments and other organisations politicised the issue and whether the high court has the jurisdiction over the office of the Chairman Senate to make it part of a commission to be answerable to the court?
Grievances of Baloch students regarding enforced disappearances
The petition contended, “The impugned order is against the law and facts of the case and is based on misreading and non-reading of the record and also misapplication of the law therefore not sustainable.” It added, “The impugned order is arbitrary in nature based upon hypothesis hence not sustainable in the eyes of law.”
Therefore, the ministry prayed that the petitioner be granted Leave to Appeal against the impugned order in the interest of justice. It also prayed that the impugned order be suspended during the pendency of the case.
In its written order, the IHC Chief Justice said, “It is intolerable for any citizen to have reasonable ground to believe that he or she may be subjected to racial discrimination.” This is definitely one of the worst forms of human rights violations and intolerable in a society governed under the Constitution. “It, prima facie, appears to the court on the basis of what has been observed during these proceedings that the grievances regarding racial discrimination, enforced disappearances and lack of response by state functionaries are not unfounded.”
“Keeping in view the grave nature of violation of fundamental rights and likely profound consequences of failure to urgently redress the grievances, the court hereby appoints a commission to enquire and investigate into the grievances of the students belonging to Balochistan regarding ‘racial profiling’, enforced disappearances and lack of response by state functionaries,” maintained Justice Athar.
The bench also said that Secretary, Ministry of Human Rights shall forthwith issue a notification of the Commission and fix the date for its first meeting after coordinating with the members.
