Petition filed in SC against KP special powers ordinance

Updated October 18, 2019

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The Supreme Court was asked on Thursday to order the scrapping of an ordinance promulgated in August by the Khyber Pakhtunkhwa governor since it impinges upon fundamental rights. — AFP/File
The Supreme Court was asked on Thursday to order the scrapping of an ordinance promulgated in August by the Khyber Pakhtunkhwa governor since it impinges upon fundamental rights. — AFP/File

ISLAMABAD: The Supreme Court was asked on Thursday to order the scrapping of an ordinance promulgated in August by the Khyber Pakhtunkhwa governor since it impinges upon fundamental rights.

The Action in Aid of Civil Power Ordinance authorises the armed forces to detain an individual at anytime and anywhere in the province without assigning any reason and without producing the accused before a court of law.

Farhatullah Babar, a leader of the Pakistan Peoples Party, is the driving force behind the petition. The other signatories are rights activists Afrasiab Khattak, Bushra Gohar and Rubina Saigol, all from KP. Advocate Khwaja Ahmad Hosain drafted the petition.

Before the 25th Amendment to the constitution, the petition recalled, the tribal areas were administered under Article 247, which authorised the president to make regulations for peace and good governance in the Federally Administered Tribal Areas (Fata) and the Provincially Administered Tribal Areas (Pata).

In 2011, the president promulgated the Actions (in Aid of Civil Power) Regulations, which were made applicable to Fata and Pata. The regulations made it clear that the need for the law arose because there was a threat to the country’s territorial integrity.

It was never the government’s intent to retain the 2011 regulations, which stipulated internment without charge, for an indefinite period. And once the threat had been addressed, the intention was that the directive to the armed forces to act in aid of civil power would be withdrawn and interned individuals would be handed over to civilian law enforcement agencies.

But the 25th Amendment removed Article 247 (7) from the constitution with effect from May 31 last year and merged both Fata and Pata with KP.

The petition stated that the ordinance was surreptitiously promulgated in early August and none of the petitioners who closely follow laws in KP were aware of its promulgation before the provincial government made it public in mid-September.

In a society governed by law, law-making bodies have an obligation to make citizens aware of all laws and there should be no secrecy in this regard, the petitioners argued.

The petition pleaded with the Supreme Court to order the federal and provincial governments to review the cases of all individuals interned or held under the ordinance and they be released or transferred to civilian law enforcement agencies.

The petition also requested the court to direct the two governments to ensure that all laws passed by them, whether primary or delegated legislation, were posted on official websites.

The apex court should also declare as illegal and unlawful any directive issued by the federal government under Article 245(1) of the constitution, which authorises the armed forces to act in any manner which is beyond the powers conferred on civilian law enforcement agencies, the petition said.

The court should also declare that the federal government must make publicly available forthwith any directive issued to the armed forces to act in aid of civil power under Article 245(1) of the constitution, together with the reasons for issuance of the same.

The petition sought urgent relief as everyone in the province had been subjected to a “parallel and draconian legal system” which authorises the use of force against them and to detain anyone without charge for an undefined duration and without any judicial remedy.

The petitioners are aggrieved as citizens of Pakistan because the ordinance provides for detention of anyone even on a visit to the province and even the petitioners who do not belong to KP were concerned at its impact on their fellow citizens in KP.

The petition also cites the 2014 Islamabad sit-in case for invoking suo motu jurisdiction, in which it was held that the jurisdiction under Article 184(3) may be invoked if it is of public importance and concerns the enforcement of any of the fundamental rights.

Published in Dawn, October 18th, 2019