Three prominent Pakistani lawyers, who were arrested last November after an emergency was declared, are to be freed and then re-arrested on the expiry of their 90-day detention period on Friday in a move to overcome a constitutional bar on the issue.
Quoting "one of the top legal minds of the government", The News said on Thursday that the government had "decided to free" Aitzaz Ahsan, Ali Ahmad Kurd and retired judge Tariq Mehmud "for few hours or a day and then re-arrest them by issuing a fresh executive order".
As for deposed chief justice Iftikhar Muhammad Chaudhry and other Supreme Court judges who have also been detained since the Nov 3 emergency was declared, the newspaper quoted government sources as saying "there is nothing to bother about them because their detention was without any formal order".
Under the constitution, no individual can be kept in preventive detention for more than 90 days unless a judicial review board certifies that he or she is a threat to public safety. However, the government has not referred the cases of the three leading lawyers for judicial review.
"A top government legal mind, on condition of anonymity, said the government does not intend to set the three lawyers free and their cases would not be referred to the judicial review boards," The News said.
According to the source, freeing the lawyers "for some time and then getting them rearrested under fresh executive orders" would "easily" defeat the constitutional bar.
Lawyers across Pakistan, joined by rights activists and the common public, had been on the warpath since last March after Pakistani President Pervez Musharraf sacked Chaudhry on charges of wrongdoing. The Supreme Court later reinstated Chaudhry.
The Supreme Court thereafter began hearing a batch of petitions challenging Musharraf's eligibility to run for a second term in the October 2007 presidential election. The court permitted the election to go ahead but barred the announcement of the result till it decided on the petitions. Musharraf had won the poll hands down.
Two of the three lawyers, Ahsan and Kurd, were not detained on one order but under three successive orders for 30 days each. Mehmud was detained for 90 days under one executive order.
Independent sources pointed out that if the government could avoid the 90-day limit by passing three or more one-month orders in succession, then the limit could always be flouted and the provision of the constitution would be meaningless.
Clause 4 of Article 10 of the constitution reads: Safeguards as to arrest and detention - No law providing for preventive detention shall be made except to deal with persons acting in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof, or external affairs of Pakistan, or public order, or the maintenance of supplies or services, and no such law shall authorise the detention of a person for a period exceeding three months unless the appropriate Review Board has, after affording him an opportunity of being heard in person, reviewed his case and reported, before the expiration of the said period, that there is, in its opinion, sufficient cause for such detention, and, if the detention is continued after the said period of three months, unless the appropriate Review Board has reviewed his case and reported, before the expiration of each period of three months, that there is, in its opinion, sufficient cause for such detention.
The 'appropriate Review Board' means, in the case of a person detained under a federal law, a board appointed by the chief justice of Pakistan and consisting of a chairman and two other persons, each of whom is or has been a judge of the Supreme Court or a high court.
In the case of a person detained under a provincial law, the board has to be appointed by the chief justice of the concerned high court and consisting of a chairman and two other persons, each of whom is or has been a judge of a high court.
The opinion of a review board has to be expressed in terms of the views of the majority of its members.