A two-judges bench of Supreme Court of Pakistan on Tuesday remanded the matter of detention of the leader of proscribed Tehreek-i-Labbaik Pakistan TLP chief Hafiz Saad Rizvi to the Lahore High Court (LHC) for a decision afresh by a division bench.
The apex court framed questions of the maintainability of the petition against the detention of TLP chief Hafiz Saad Rizvi and the jurisdiction of the LHC to entertain that petition to be decided by the division bench expeditiously.
A single bench of LHC on October 1 had allowed a petition of Hafiz Saad’s uncle Ameer Hussain and declared the detention of the TLP leader as unlawful and ordered his release.
Apex court bench comprising Justice Ijazul Ahsan and Justice Sayyed Mazahar Ali Akbar Naqvi passed this order on an appeal on behalf of the Punjab government challenging a decision by a single bench of the LHC which had declared the detention of Rizvi unlawful.
As the Supreme Court bench in its verbal direction did not mention the suspension of the impugned order of the LHC single bench, legal experts had the view that the decision of the single bench would be deemed to be nonexistent since the matter has been remanded for a fresh decision by a division bench.
An additional chief secretary home moved this appeal before Supreme Court. Appellate counsel said that the LHC impugned verdict was a case of misdirection in law since the court ruled in a conjectural manner that there was no new material for detention under section 11EEE of the Anti-terrorism Act, 1997.
He pointed out that the impugned decision was a classic case of excess of jurisdiction as the court usurped the authority vested in and meant for the executive. He submitted that the LHC judge failed to appreciate the basis for judicial review that was to interpret and further the intent of parliament as obtained in the statute.
He asserted that the government had fulfilled all the requirements of the law as envisaged in section 11EEE but the LHC allowed judicial review, which amounted to questioning and adding to express intent of the parliament. He further submitted that the chief minister was required to bring every matter to the cabinet.
He pleaded that the `ex post facto’ (affecting something that’s already happened) approval of the detention notification issued by the deputy commissioner did not require approval by the cabinet. Appellate counsel pointed out that the reports of the law enforcement agencies suggested that in the prevailing security environment release of the TLP leader would encourage intolerant and radicalized elements.
He said that the agency’s reports further said the death anniversary of Maulana Khadim Hussain Rizvi, was falling on November 19 and presence of Hafiz Saad on the event would aggravate the law and order situation. Counsel requested to allow this appeal and set aside the decision passed by the LHC.
In reply, Ameer Hussain counsel submitted that the government’s appeal had become infructuous since the period of the 90-day detention lapsed. He also said that there was no order in the field, judicial or administrative with regard to the detention of Hafiz Saad.
He requested SC to dismiss the appeal of the government being infractuous.
The Supreme Court bench after hearing counsels remanded the case of the LHC.