LAST month, I wrote here on the need for the Actions in Aid of Civil Power Ordinance, 2019 (AACPO) to be struck down or repealed because it was violative of the fundamental rights of the citizens of Pakistan residing in Khyber Pakhtunkhwa.
That very evening, on Oct 17, a division bench of the Peshawar High Court (PHC), which was hearing a petition challenging the AACPO, struck it down, holding it to be ultra vires the Constitution, declared all internment centres established under the ordinance to be sub-jails and directed the KP police to take them over, review the cases against the internees, liberate the ones who have no case against them and produce the ones who did before the ordinary criminal courts for prosecution.
Many hailed this judgement as one of the most important decisions relating to the rule of law and the protection and enforcement of the human rights of Pakistani citizens to have come from our constitutional courts in the past year.
However, on Oct 24, the celebrations of rights activists were cut short when, in appeals moved by the federal and KP government, the Supreme Court suspended the order of the Peshawar High Court and allowed the AACPO to be held in force until a final decision was made. The Supreme Court also announced the formation of a larger bench to hear the case and set the next hearing date in November.
Under Article 8, no law is valid if it violates fundamental rights.
While the news of the judgement’s suspension may have been surprising, the SC was bound to pass a stay order since the balance of convenience arguably lay with maintaining the status quo until the final decision of the appeal. Also, the federal government took arguably unique constitutional grounds.
Firstly, under Article 245(1) the federal government argued that the armed forces can act in aid of civil power, subject to the law. Secondly, arguing that the AACPO is such a law and that it falls within the vires of the protection offered by Article 245(3) of the Constitution (which ousts the jurisdiction of the high courts under Article 199 from any area where the armed forces are called to aid civil power), the federal government has argued that the judgement of the high court is liable to be set aside due to a jurisdictional defect.
This is a unique argument because, under Article 8 of the Constitution, no law/order is valid or can be made that violates the fundamental rights of the citizens of Pakistan — which the AACPO certainly does — thus making it void law. One may ask how then can the jurisdiction of the high courts be ousted under Article 245(3) while Article 199(1)(c) provides the high court the power to make orders to enforce the fundamental rights of citizens?
A harmonious interpretation of the two divergent constitutional articles will necessarily lead one to consider the emergency provisions of the Constitution (enshrined in Articles 232 to 237), which are the only constitutional route for the suspension of fundamental rights. Under these provisions, the federal government can suspend citizens’ fundamental rights if the president makes a proclamation of emergency.
For proclamations of emergency relating to internal security, however, the assembly of that province must pass a resolution asking the president to declare an emergency — or, if the president acts on his own, the proclamation must be put before parliament within 10 days of being issued.
No such proclamation of emergency has ever been issued by the president and nor has any resolution been placed by the KP Assembly for promulgating the AACPO. And even if it has or will be, the proclamation would need to be put before parliament for confirmation within 10 days. Therefore, while the government’s argument is certainly unique, it is legally quite weak, as the fundamental rights of Pakistani citizens have not been suspended and, thus, the AACPO is constitutionally unviable.
As far as the exclusion of the high court’s jurisdiction under Article 245(3) goes, there are two separate judgements of five-member benches of the Lahore High Court and the Sindh High Court that have held, among other things, that the ouster clause of the high court’s jurisdiction under Article 245(3) is not an absolute bar, and that the armed forces can be called to aid civil powers but cannot replace the civil authorities and take over their total function.
These are all compelling points that one hopes the apex court shall consider seriously when deciding the fate of the fundamental rights of citizens. All eyes now fall upon the SC, which is constitutionally mandated to safeguard, protect and enforce the fundamental rights of all citizens of Pakistan guaranteed by our Constitution.
The writer is a human rights lawyer working in Islamabad.
Published in Dawn, November 6th, 2019