ISLAMABAD: The Federal Constitutional Court (FCC) on Tuesday disposed of a suo motu case initiated on the killing of prominent journalist Arshad Sharif in Kenya, ruling that judicial oversight of the ongoing investigation was impermissible under Pakistani law.
The court emphasised that the matter was being handled through diplomatic channels and a mutual legal assistance (MLA) agreement between Pakistan and Kenya had also already been reached.
The 14-page judgment was authored by Justice Aamer Farooq and disposed of all pending applications.
“We acknowledge and share the grief felt by our nation and the journalist community over the death of our citizen,” the judgment said.
“Needless to observe that in case the legal heirs of Sharif have any specific grievance in the matter, they can approach the court(s) of competent jurisdiction,” it added.
The judgment said that in the present case, the MLA had been signed between Pakistan and Kenya, adding that both countries were coordinating at a diplomatic level to implement it.
“We were of the view that the authorities of both countries are taking appropriate action under their respective laws,” the judgment said, adding that there was no need for any judicial interference in this regard when the law and investigation were taking their due course.
The judgment said that if the FCC issued any judicial order directing the state, including the federal government, to represent the matter internationally, it would not only amount to interference in the ongoing investigation, which was already proceeding under MLA agreement, but would also encroach upon the domain of foreign policy.
“Undoubtedly, matters of foreign relations are best handled by the Ministry of Foreign Affairs (MoFA) and the federal government, who are better equipped to determine what serves the purposes of Article 40 and what is appropriate in the international context,” the judgment said.
It said that Article 40 provided that the state shall “foster goodwill and friendly relations among all nations”.
The judgment said that the court had also perused the Feb 13, 2023 order by the Supreme Court, in which it had concurred with the submission of Additional Attorney General (AAG) Chaudhry Aamir Rehman that steps under the MLA were underway and that diplomatic channels were being actively pursued.
It said that the SC had also observed that, in such circumstances, directly approaching international forums would not be the appropriate course of action.
“The Supreme Court accepted this submission, while clarifying that, should the need subsequently arise, recourse to such forums could be considered. Similarly, at this stage, we would leave this issue to the good sense of the federal government,” the judgment said.
The judgment also noted that several “pertinent and significant” steps had been taken by the federal government in the case.
“These include the signing of the MLA, telephonic conversation between the prime minister of Pakistan and the president of Kenya, the formation of the special joint investigation team and the investigation carried out by it, diplomatic contacts with the Kenyan authorities by the MoFA, and issuance of black warrants,” it said.
It further noted that remedies were also being pursued at the individual level by Sharif’s family, which were pending before the Kenyan Supreme Court.
The judgment noted that the attorney general had submitted that a formal request to visit Kenya had been made to the concerned Kenyan authorities and that Pakistan was presently awaiting their response.
Sharif was shot in the head when Kenyan police opened fire on his car on the outskirts of Nairobi on Oct 23, 2022. He had left Pakistan in August 2022 after multiple cases of sedition were registered against him in different cities.
On Jan 14, the FCC had dropped hints about closing the suo motu proceedings, observing that the court’s facilitation had already borne fruit with the signing of a MLA agreement between the governments of Pakistan and Kenya in September last year.
Last week, one of the widows of the slain journalist had pleaded before the FCC through a letter not to close the suo motu proceedings.
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