Drone attacks

Wednesday, October 28, 2009

LAHORE

A DIVISION bench of the Lahore high court on Tuesday dismissed an Intra Court Appeal (ICA) against dismissal of a petition by a single bench, which sought a reply to American drone attacks by the Pakistan Army and declare the US as an enemy state.

The division bench comprising Justice Mian Saqib Nisar and Justice Iqbal Hameedur Rehman while upholding the single bench’s judgment on the petition filed by Wukala Mahaz Barai Tahafuze Dastoor held that courts couldn’t interfere into matters of foreign policy or warfare since it was the sole domain of the federal government, which was the competent authority to take an appropriate action.

The head of the bench, Justice Mian Saqib Nisar observed that a court could never declare America an enemy state. He said the court could not declare war against USA by ordering Pakistan Army for a counter attack against US drones because it was the responsibility of the government and parliament.

The counsel for the petitioners, Dr A Basit, submitted that drone attacks began in Pakistan in 2005 and since then, over 3000 innocent citizen had been martyred. He said America was attacking our territories and killing our people, hence the country should be declared an enemy state and our army should be directed to make counter attacks.

The counsel further requested that a judicial notice might be taken about American forces, which under the cover of NATO were daily conducting armed aggression against Pakistan.

The judge asked it could be seen whether Pakistan had the capability to hit and stop drone attacks and whether our army possessed such missiles which could hit the US accurately.

Dr Basit cited a statement by head of Pakistani armed forces stating that Pakistan possessed the capability of striking down US drones but it was not the policy of the federal government and army could not take such an action on its own.

The counsel pointed out that under article 245 of the Constitution, the government could direct armed forces to protect Pakistan against foreign aggression but it had failed to discharge its constitutional obligation; therefore, it was the responsibility of the court to issue orders to Pakistani armed forces to protect the country against US attacks.

The counsel said that Pakistan Army spokesman claimed to have the capability to shoot down “Drones” but the government has taken a policy decision to permit them to operate for killing Pakistani citizens with impunity. He said the Pakistani armed forces should be directed to defend the country with all means at their disposal including its nuclear arsenal.

He had also sought directions for the government to declare America as an enemy state and stop aiding the state by protecting its supply lines through surface transit over the territory of Pakistan.

The judge observed it was not a matter where judicial activism was needed rather the courts should prefer judicial constraints in such issues.

He said Pakistani and Indian army almost daily exchange fire at the Line of Control and sometimes casualties also took place but on the basis of such incidents the courts could not declare war against India.

Justice Asif Saeed Khosa had dismissed this petition on October 9 last observing that petitioner’s prayers were either outside the scope of jurisdiction of the court or they pertained to matters of public policy which the court had consistently refrained from entering into.