PESHAWAR: The Peshawar High Court directed the federal and Khyber Pakhtunkhwa governments on Tuesday to make laws before withdrawal of troops from Malakand division so that different issues, including the future of hundreds of suspects detained in the region’s internment centres, could be given legal cover.
“No decision shall be made in a haphazard manner as withdrawal of troops without proper legislation will result in legal and constitutional crises,” said a two-judge bench comprising Chief Justice Dost Mohammad Khan and Justice Nisar Hussain.
The court issued the directive during the hearing of about 250 habeas corpus petitions of “enforced disappearances”. The KP government had announced phased withdrawal of troops from the Malakand division, including Swat, last week.
The bench said if the troops were withdrawn without any legal cover, the court would be flooded with hundreds of petitions by internees who would be seeking their release because apparently they would be in illegal detention then. These internees could not be transferred to other prisons because they had been held under a special law and, therefore, legislation was needed to provide a mechanism for their shifting to regular prisons, it added.
The court asked KP Advocate General Abdul Lateef Yousafzai and Deputy Attorney General Muzamil Khan to consult the government, the attorney general, Judge Advocate General Branch of the Army, the federal law ministry and the provincial law department to find a way out of the impasse.
The advocate general and the DAG informed the court that the withdrawal would take place in three phases.
The bench told the two law officers representing the centre and the province to consult the authorities concerned about the legal consequences of withdrawal since the notification issued by the prime minister calling troops in aid of civil power was still in the field. Other questions that need to be addressed are maintenance of internment centres, transfer of detainees to regular prisons and their future course of trial and the pattern and mode of trial requiring legislative cover. The provincial and federal government, as well as the military’s legal branch, should sort out these issues, it said.
“Legislation shall be made with extreme care, but with reasonable speed, before withdrawal of troops as desired by the provincial government so as to avoid constitutional and legal crises,” the bench said.
The advocate general and the DAG said they had held a brief meeting with the officials concerned but sought more time to take up the matter with the federal and provincial governments, the attorney general and JAG branch of the army.
Chief Justice Dost Mohammad said it appeared that the federal and provincial governments were not on the same page on the issue. A comprehensive framework should be made keeping in view all aspects of the matter.
He said the Action (in aid of civil power) Regulation 2011 was under challenge in the high court, but keeping in view the ground realities it delayed the matter to provide a breathing space to the authorities.