Apex court suspends PHC order of holding KP’s ordinance illegal

Updated October 25, 2019

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The Supreme Court on Thursday suspended the Peshawar High Court’s (PHC) order of holding Khyber Pakhtunkhwa ‘Action (in Aid of Civil Power) Ordinance, 2019, as illegal and notifying all internment centres as sub-jails. — AFP/File
The Supreme Court on Thursday suspended the Peshawar High Court’s (PHC) order of holding Khyber Pakhtunkhwa ‘Action (in Aid of Civil Power) Ordinance, 2019, as illegal and notifying all internment centres as sub-jails. — AFP/File

ISLAMABAD: The Supreme Court on Thursday suspended the Peshawar High Court’s (PHC) order of holding Khyber Pakhtunkhwa ‘Action (in Aid of Civil Power) Ordinance, 2019, as illegal and notifying all internment centres as sub-jails.

Headed by Chief Justice of Pakistan (CJP) Asif Saeed Khosa, a three-judge SC bench, which comprised Justice Qazi Muhammad Amin Ahmed and Justice Amin-ud-Din, ordered constitution of a larger bench to take up the matter.

The CJP while hearing the appeals moved by the federal government as well as the KP government through the KP governor observed that the matter was of a great national importance.

According to the additional advocate general for KP, the CJP said that the apex court would ensure that fundamental rights as guaranteed in the constitution were not infringed at any cost.

CJP terms Action (in Aid of Civil Power) Ordinance a matter of great national importance, orders constitution of larger bench

During the hearing, Attorney General Anwar Mansoor and KP Advocate General Shumail Butt presented their arguments through a video link.

The SC observed that the high court’s order will remain suspended till the final decision on the appeal was not announced.

The court postponed further hearing in the case and it will now be taken up by the larger bench on Nov 15.

The Action in Aid of Civil Power Ordinance, 2019 was promulgated by the KP governor in August, authorising 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.

On Oct 17, a PHC’s division bench consisting of Chief Justice Waqar Ahmad Seth and Justice Musarrat Hilali had held as ultra vires of the constitution the Action (in Aid of Civil Powers) Ordinance 2019, KP continuation of laws in erstwhile PATA Act 2018, KP continuation of laws in erstwhile FATA Act 2019 and Actions (In Aid of Civil Powers) regulation, 2011.

The petitions before the PHC were filed by different people, particularly those who are detained at different internment centres in KP.

Two of the petitions were filed by Advocate Shabbir Hussain Gigyani.

In its judgement, the PHC had declared that the ordinance V of 2019 was of no lawful authority in view of which the KP’s home secretary was directed to notify all the internment centres as sub-jails in accordance with law within 24 hours, from the receipt of the judgement. Similarly, the KP’s inspector general (prison) was directed to take control of all such jails so declared, within next three days.

The PHC had also ordered to release all those internees who were not charged in any case and a period of 90 days prevention detention has lapsed from the date of the arrest and all those who have been charged will be produced before the competent court of law duly established in the area, failing which the KP’s home secretary and the IG (prison) would be responsible for life and liberty of people interned in the said centres.

It further directed the home secretary as well as the IG (prison) to prepare a list of interned persons to be produced in the high court in the hearing of missing person cases. All such exercise will be completed within seven days from the receipt of the judgement.

Challenging the PHC judgement through the law minister, the federal government had raised 46 questions. It highlighted that Article 245 (3) of the constitution which says that the high court will not exercise any jurisdiction under Article 199 of the constitution in relation to any area in which the armed forces, for the time being, acting in aid of the civil power in pursuance of Article 245.

The appeal also questions, can the high court had any justification to rely upon “internet and social media” reports that were nothing but a source of gossip and gibbering done at the behest of anti-state elements in order to weaken the state of Pakistan.

In addition to these appeals, the Supreme Court is also seized with a separate challenged by Pakistan Peoples Party stalwart Farhatullah Babar who has pleaded to scrap the 2019 ordinance since it impinges upon the fundamental rights of the people.

Prior to 25th Amendment in the constitution, the tribal areas of Pakistan were administered under Article 247 of the constitution, authorising the president to make regulations for the peace and good governance of the erstwhile 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, 2011, which were made applicable to Fata and Pata. The recitals to the 2011 regulations make it clear that the need arose to the grave and unprecedented threat to the territorial integrity of Pakistan and, therefore, extraordinary measures were needed.

Published in Dawn, October 25th, 2019