Aafia case: MoFA is directed to liaise with Smith & Janjua to extend all such support as it can within confines of diplomatic norms

ISLAMABAD, June 28 (SABAH):  Islamabad High Court (IHC) adjourned the constitutional petition of Dr Fowzia Siddiqui about the detention of her sister Dr Aafia Siddiqui.

The honorable single bench comprising Justice Sardar Ejaz Ishaque Khan in its order said:  This CM seeks to place a further declaration by Smith. The declaration dated 10.06.2024 is brought on record.

The declaration records encouraging developments in terms of Mr. Smith’s and Dr. Fowzia Siddiqui’s trip to Qatar and to the US, the details of which are given in the declaration and are incorporated here by reference. The declaration acknowledges MoFA’s increased support with the trip and the courtesies extended by the Pakistani Ambassador in the US. Although there were some hiccups that appear to be juvenile attempts by the prison authorities at making Dr. Fowzia’s meeting with Dr. Aafia rather inconvenient, the declaration states overall that the meetings did take place though not entirely as smoothly as expected.

The declaration also records developments in the support from the lawyers in US in relation to the litigation that Smith, per his last declaration, stated that he was almost ready to file before the Southern and the Northern Districts of New York, aimed primarily to persuade the Courts to drop the terrorism charges that should result in substantial reduction of Dr. Aafia Siddiqui’s sentence.

In terms of the support expressed as necessitated from MoFA, para 4 of the declaration is addressed serially below: a. MoFA has raised its hands and expressed its inability to identify any Pakistani American lawyers. The stance is official but, given the courtesies extended, I see no reason why MoFA going forward would not share informally any further leads it may come across for the support by the Pakistani American lawyers, b. This assistance is for the time being suspended due to the order that is about to be made on the CM no.1978/2024 filed by MoFA today; c. MoFA claims to have met a dead end after the Bureau of Prisons’ refusal to allow doctor visits.

Smith is hopeful that the litigation he intends to file in July will address this point, but he needs MoFA’s support as amicus in the case. For that MoFA has to start preparing now. MoFA is directed to liaise with Mr. Smith and Ms. Janjua to extend all such support as it can within the confines of diplomatic norms. Insofar as I am aware, MoFA fielding one of its knowledgeable officers as amicus should not violate the diplomatic norms; and

Four Para 5 of the declaration refers to the Prisoner Transfer Agreement.  Janjua has placed on record additional documents comprising notings and correspondence between the various Divisions in relation to Pakistan’s accession to international conventions for exchange of prisoners.

After hearing submissions of the learned amicus and learned AAG, it transpires that a meeting was recently held amongst MoFA and the Ministries of Law and Interior to consider Pakistan’s accession to the Organization of American States Inter-American Convention on Serving Criminal Sentences Abroad 1993 (the ‘1993 Convention’).

Janjua contends, and this has not been controverted by the learned AAG, and which further seems to be unequivocally endorsed by the Secretary Interior’s letter to the Prime Minister dated 06.03.2015, that no consent of any foreign body is required for

Regarding Pakistan’s accession to the 1993 Convention, she adds that the Government’s apprehensions on having to surrender Dr. Shakeel Afridi and others if the 1993 Convention was signed were uncalled for because Afridi was not a US citizen and the Convention applied only for such citizens of the acceding States who have been tried and convicted under the laws of another acceding State and Dr. Afridi did not fit that description. Duggal states that another meeting is scheduled in a week or so.

The Court expects that this meeting will return some firm steps and would not be adjourned for another meeting alone. The reasons for the Government not acceding to the 1993 Convention, despite an obvious and compelling need to do so for being the only option identified so far by the Government for Pakistan to pursue Dr. Aafia’s repatriation, do not appear convincing so far.

The learned amicus rightly points out to the apparent error in the letter by the Special Assistant to Prime Minister (SAPM) on law, which is almost couched in paranoid terms referring to Dr. Shakeel Afridi, when the 1993 Convention was not apparently applicable in his case nor in case of the cited American national who killed two Pakistanis in Lahore because that American was never arrested nor tried but was rather meekly sent to his home country. Accordingly, the said SAPM’s letter threw a spanner in the progress of Pakistan’s accession to the 1993 Convention that at the time was supported by MoFA but the process was brought to a sudden halt by what seems to be erroneous advice by the SAPM.

With the foregoing background, the Court expects a solid answer from the learned AAG on this point on the next date. The declaration concludes with further notation of further time spent by Mr. Smith on this case. The Court expects the current momentum of cooperation between MoFA and Dr. Aafia’s team to continue.

Regarding CM no.1978/ 2024, the order said the tenor of this application is that the directions contained in para 7 of the last order dated 24.05.2024 will in all likelihood adversely affect the diplomatic relations between Pakistan and the United States. In particular, the deliberations referred to in para 13 of the applications between MoFA and the Pakistan Embassy return the likelihood of adverse political and foreign policy.The case was adjourned to July 5, 2024.