The promulgation of Khyber Pakhtunkhwa Action (in Aid of Civil Power) Regulation, 2019, by the provincial government has opened a Pandora’s box as almost identical two regulations introduced in 2011 have already been under challenge before the Peshawar High Court.

The controversial ordinance was promulgated on Aug 5 through which the powers earlier assigned to the armed forces in a ‘defined area’ in erstwhile Federally Administered Tribal Areas (Fata) and Provincially Administered Tribal Areas (Pata) have now been extended to the entire province.

Apart from several other powers, the ordinance empowers an interning authority to intern a suspect till the continuation of the action in aid of the civil power by the armed forces.

So far, the ordinance has not been laid before the KP Assembly, which is a legal requirement under Article 128 (2) (a) of the Constitution. The constitutional life of a provincial ordinance is 90 days and the assembly is empowered to pass a resolution to disapprove it or to extend the ordinance for a further 90 days.

This move of the provincial government took legal circles by surprise and they only came to know about it when KP Advocate General Shumail Ahmad Butt informed a bench of the Peshawar High Court about its promulgation during hearing of a petition on Sept 17.

During the coalition government headed by Pakistan Peoples Party in the centre, the two earlier regulations were promulgated by then president Asif Ali Zardari on June 23, 2011, for former Fata and Pata. The two regulations – Action (in Aid of Civil Power) Regulation, 2011, for Fata and Pata – were given retrospective effect from Feb 1, 2008, and wide-ranging powers were assigned to the armed forces while acting in aid of civil power in the conflict areas.

In these regulations a ‘defined area’ means the area notified by the provincial government, in which action in aid of civil power is being conducted to secure the territory or ensure peace in any place where armed forces have been requisitioned.

The regulations authorised the provincial government or any person authorised by it to act as interning authority having the powers to intern a person.

With the promulgation of these two regulations several detention facilities were given legal status.

The Khyber Pakhtunkhwa home secretary had issued a notification on July 20, 2011, through which nine detention facilities, where hundreds of suspects had been detained, were notified as internment centres in the province.

Similarly, another notification was issued by additional chief secretary, Fata, on Aug 12, 2011, under which around 34 internment centres were notified. Through that notification all the forts of Frontier Corps and political lockups in the seven tribal agencies (now tribal districts) were declared internment centres.

These regulations were introduced while exercising powers under Article 247 of the Constitution through which different status was assigned to former Fata and Pata. However, through the Constitution (Twenty-fifth Amendment) Act, 2018, the said constitutional provision had been omitted.

One important aspect of the Constitution (Twenty-fifth Amendment) Act is that no ‘saving clause’ was included in it for giving protection to the laws in vogue in former Fata and Pata.

Soon issues started cropping up about legal status of different laws which were in practice in former tribal areas, but not in rest of KP province specially the two regulations, Shariah Nizam-i-Adl Regulation and Fata Interim Governance Regulation (FIGR), 2018.

To overcome that problem, the KP government enacted two laws – KP Continuation of Laws in Erstwhile Pata Act, 2018, and KP Continuation of Laws in Erstwhile Fata Act, 2019.

However, an advocate of high court Shabbir Hussain Gigyani challenged these two enactments, terming them in conflict with the Constitution and in violation of different judgments of the superior courts. The petitioner has also requested the high court to declare the internment centres established under the 2011 regulations as unconstitutional.

An important judgment in this regard was delivered by the Supreme Court on Jan 16. While dismissing a civil petition filed by KP government it had declared Fata Interim Governance Regulation, 2018, in conflict with several provisions of the Constitution.

The petition was filed by the provincial government against a judgment of PHC delivered on Oct 30. The high court bench while allowing a petition filed by Advocate Ali Azim Afridi had declared some of the provisions of FIGR in conflict with the Constitution and had given a month time to the government to set up regular courts in the erstwhile Fata.

The apex court addressed an important question about similar applicability of laws in former tribal areas and settled areas in the province. The court ruled: “Whether they be residents of Fata on one hand or of Peshawar or Mardan, etc on the other, they cannot be discriminated against and any classification between them despite being residents of the same province, with no obvious or reasonably deducible distinction between them, will be arbitrary.”

The bench in its conclusion pronounced: “After the 25th Amendment, all the residents of KP are similarly placed, there is no rational basis on which the people of Fata can be distinguished from the people of the rest of the province and thus the application of the Fata Interim Regulation to one part of KP while the rest of the province enjoys the protection of the provincial laws is absolutely unjustified.”

In light of that judgment, it was evident that it would be an uphill task for legal team of the provincial government to defend the earlier two regulations and the two enactments for giving protection to laws in former Fata and Pata.

Through the KP Action (in Aid of Civil Power) Ordinance, the government has tried to overcome the issue of equal applicability of laws in the province so as to show there was no discrimination with people of erstwhile Fata and Pata and the same provisions are now applicable to the entire province.

The high court has fixed Sept 24 for hearing of the petition of Shabbir Gigyani. The court will decide about the legal status of the earlier two regulations as well as the present ordinance.

Published in Dawn, September 23rd, 2019