After amending the Constitution of Pakistan and Pakistan Army Act 1952, the federal government reportedly intends to set up nine special military courts for trying suspected militants across the country. These courts include three each in Khyber Pakhtunkhwa and Punjab; two in Sindh; and, one in Balochistan.
With the setting up of these courts it is expected that the cases of hundreds of suspected militants interned in different internment centres in Khyber Pakhtunkhwa and Fata (Federally Administered Tribal Areas) without trial will also be referred to these courts.
Till now the federal and provincial governments failed in referring cases of these internees to the courts concerned and they have been kept in detention for the last many years. Following continuous pressure exerted by the Peshawar High Court last year the authorities submitted five lists of internees detained in different internment centres in Fata and KP. Those lists included names of around 1900 internees. Several of these internees have been detained without trial for over five years.
During military operations in different regions including Malakand Division, the security forces had arrested scores of suspects, but they were not produced before court of law. While it remained an open secret that hundreds of suspects had been detained at different places in illegal manner, the authorities remained in a fix about which legal course to be adopted to tackle them.
These detained suspects remained in legal limbo for many years and ultimately the government came up with the idea of promulgating two regulations so as to provide legal cover to their detentions. The president had promulgated two almost identical regulations – Action (in aid of civil power) Regulation 2011 for Fata and Pata - on June 23, 2011. These regulations were given effect from Feb 1, 2008, so as to legalise the illegal detentions of hundreds of persons taken into custody during military operations.
Despite the fact that these regulations provided vast powers to authorised officers and armed forces and empowered an interning authority to intern a suspect till the continuation of action in aid of the civil power by the armed forces, but still the authorities remained confused whether to refer the cases of internees to special anti terrorism courts or not. Experts believe that the authorities were shy of sending the cases to anti terrorism courts as it was expected that due to lack of proper evidence they would be ultimately acquitted.
These regulations were also challenged before the Supreme Court of Pakistan by the provincial chief of Jamaat-i-Islami, Professor Ibrahim, and several others on the grounds that several provisions of these laws were in conflict with the Constitution. These petitions have still been pending before the court.
The regulations empowered the armed forces to occupy any property with the approval of the federal or the provincial government. These laws also authorise the government to set up notified internment centres. So far the federal and provincial governments have notified around 43 internment centres in Fata and Khyber Pakhtunkhwa including nine centres in the province and around 34 in tribal areas.
The regulations defines “action in aid of civil power” as series of measures that involve the mobilisation of armed forces, in aid of civil power or their requisition by the federal government, including measures such as armed action, mobilisation, stationing etc. till such time they are withdrawn by the written order of the government.
The laws empower an interning authority to withdraw the order of an internment either on its own or on the written request of the person interned or his relative. The authority is also empowered to turn down any such request. Furthermore, the interning authority is empowered to depute a suitable officer or officers to inquire into the offence attempted or committed, previous and present conduct, etc of the person interned and accordingly submit its report.
Based on the said report the authority may pass a suitable order in writing whereby it may turn down the request for the time being; or direct that the person is an offender and after the conclusion of the actions in aid of civil power he shall be handed over to the law enforcing agencies for formal prosecution: or accept the request unconditionally or with certain conditions as it may deem expedient and may also take an undertaking or guarantee from the family or a jirga of the community.
These regulations provide for setting up of oversight board for each of the notified internment centre. The Khyber Pakhtunkhwa governor has to notify oversight boards for internment centres in Fata whereas the provincial government has to notify it for the centres in the province. The board comprises two civilians and two military officers to review cases of each person interned within a period of time not exceeding 120 days, from the issuance of the order of internment, and prepare a report for the consideration of the governor or the provincial government, which ever the case may be.
The authorities have so far categorised several of the suspects. They have been placed in three categories of black, grey and white. The hardened militants have been placed in category “black” whereas the others with less evidence have been declared “grey”. Similarly, those with no evidence against them were placed in category “white.”
Legal experts dealing with cases of “missing persons” believe that with only three special courts in KP it would be much difficult to decide the cases of these internees at the earliest. They added that if the government was interested in deciding the cases of internees it had to increase the number of special courts for KP and Fata.
Published in Dawn January 12th , 2014