The Federal Constitutional Court (FCC) of Pakistan officially terminated the suo motu proceedings on the ruthless murder of senior journalist, Arshad Sharif, in Kenya. The judgment, which was written by Justice Aamer Farooq, is a major twist in the high profile case.
Although the court shared the grief of the country regarding the tragedy, the court identified certain legal and constitutional causes as to why the further judicial supervision was no longer tenable. The following is an elaborate explanation as to why the court had ruled to close the proceedings.
1. Limits of Judicial Oversight
The primary legal ground for the decision was the limitation of the court’s power regarding ongoing investigations. The FCC ruled that judicial oversight of an ongoing investigation is impermissible under Pakistani law.
The judgment noted that when state authorities are already taking action under their respective laws, judicial interference can hinder rather than help the process. The court stated:
“We were of the view that the authorities of both countries are taking appropriate action under their respective laws… there was no need for any judicial interference.”
2. Domain of Foreign Policy (Article 40)
Another significant cause of the decision was the international relations that were involved. The court pointed out that the investigation is one against a foreign sovereign state (Kenya), and foreign policy is the prerogative of the Executive, which in this case, is the Ministry of Foreign Affairs (MoFA).
The ruling emphasized Article 40 of the Constitution that states that it should promote goodwill and cordial relations with other countries. The FCC argued that:
- Directing the federal government on how to handle the matter internationally would encroach upon the executive’s domain.
- The federal government is better equipped to determine what actions serve Pakistan’s interests in an international context.
3. The Mutual Legal Assistance (MLA) Agreement
The court observed that considerable efforts had already been done in the diplomatic lines. In the investigation, a formal legal framework to be used is a Mutual Legal Assistance (MLA) agreement between Kenya and Pakistan.
The court has noticed that a MLA exists, and the two nations are organizing, thus the legal process has already begun. The order cited a prior Supreme Court ruling (Feb 13, 2023) which had concurred that direct address to international forums was not suitable where bilateral institutions such as MLA were in existence.
4. Government Steps Acknowledged
The judgment listed several “pertinent and significant” steps taken by the federal government, which satisfied the court that the state was not idle. These steps included:
- Telephone contact between the Prime Minister of Pakistan and the President of Kenya.
- The formation of a Special Joint Investigation Team (SJIT).
- Issuance of Black Warrants (Red Notices).
- Continuous diplomatic engagement by the Foreign Office.
5. Recourse for the Family
The court left the family of Arshad Sharif without any alternatives despite closing the suo motu notice. The judgment clarified that:
In case any particular complaint is voiced by the family or the legal heirs, they can always address the courts of relevant jurisdiction.
The family has already gone out in its own to seek court redress in the Kenyan Supreme Court which is the right place to seek redress when crimes are committed on the Kenyan soil.
