PESHAWAR: The controversial Khyber Pakhtunkhwa Actions (in Aid of Civil Power) Ordinance, 2019, which gave sweeping powers to armed forces in certain security-related areas across the province, has expired after completing its constitutional life of 90 days.

The ordinance, which was promulgated by the provincial governor on Aug 5, was declared unconstitutional by a Peshawar High Court bench on Oct 17. However, it resurrected after the Supreme Court issued a stay order on Oct 24 suspending the high court’s judgment.

Official sources told Dawn that although the ordinance expired on Nov 3, no legal complication would arise regarding the functioning of internments centres as two identical regulations introduced in 2011 continue to be effective.

Centres to continue functioning due to SC stay order

However, the fate of those regulations also depends on the Supreme Court’s verdict on the petitions of the federal and provincial governments.

Article 128(2) of Constitution provides that an ordinance promulgated by the governor shall be laid before the provincial assembly and shall stand repealed at the expiration of 90 days from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by the assembly.

The article empowers the provincial assembly to extend the ordinance for a further period of 90 days by a resolution and it shall stand repealed at the expiration of that period. Further extension of an ordinance could only be made once.

An official privy to the issue said the ordinance had not been laid in the assembly, while the government had yet not decided to further extend the ordinance through a resolution of the assembly.

By accepting two petitions filed by advocate Shabbir Hussain Gigyani, the high court had declared unconstitutional on Oct 17 the ordinance and four other laws, including the KP Continuation of Laws in erstwhile Pata Act, 2018, the KP Continuation of Laws in Erstwhile Fata Act, 2019, and the two regulations of 2011 called Action (in Aid of Civil Power) Regulation for Fata and Pata.

A bench headed by Chief Justice Waqar Ahmad Seth had declared the functioning of internment centres in Khyber Pakhtunkhwa as illegal and ordered provincial home secretary to notify the centres as sub-jails within 24 hours.

The bench had ruled that the said Ordinance violated all the fundamental rights enshrined in the Constitution of Pakistan.

Lawyer Shabbir Gigyani told Dawn that though the ordinance had lapsed, the two regulations of 2011 about internment centres would continue to be effective due to a stay order of the Supreme Court.

He said the apex court would hear the appeals of the government on the matter on Nov 13.

“Keeping in view the blatant violation of fundamental rights in the garb of these regulations, I hope that the court will look into that aspect apart from other constitutional violation by the government,” he said.

The two regulations promulgated in 2011, had been given effect from Feb 1, 2008, to provide legal framework to the military operations conducted in erstwhile Fata and Pata. However, through the controversial Ordinance the scope of those regulations were extended to entire province.

Under the Ordinance, which stands expired now, the provincial government can notify any area in the province as ‘defined area’ in which action in aid of civil power is being conducted in any place where the Armed Forces have been requisitioned.

Furthermore, multiple powers were assigned to member of Armed Forces or any civilian officer duly authorised in the defined area.

They were empowered to enter and search any property or place where there is an apprehension that miscreants may be hiding; establish security posts sin defined area; possess or occupy any property with the approval of the provincial government, etc.

The ordinance had drawn massive criticism from human rights bodies, both national and international, on multiple counts.

The International Commission of Jurists had denounced the ordinance and said the implementation of the Ordinance will lead to serious human rights violation and miscarriage of justice.

Published in Dawn, November 8th, 2019