ISLAMABAD: The Supreme Court of Pakistan on Wednesday sought details of scores of internment centres functioning in Khyber Pakhtunkhwa as well as the list of the internees detained therein with the ruling that it is a matter of fundamental rights of people that cannot be ignored. A five member bench of the apex court headed by Chief Justice Asif Saeed Khan Khosa resumed the hearing on petitions filed by the government of Khyber Pakhtunkhwa as well as the federal government, challenging the order of the Peshawar High Court (PHC) on October 17, striking down the Khyber Pakhtunkhwa government’s Action in Aid of Civil Power Regulation Ordinance 2019 as well as Vires of FATA Act 2019 and PATA Act 2018.
Other members of the bench were Justice Gulzar Ahmed, Justice Mushir Alam, Justice Umar Ata Bandial and Justice Qazi Faez Isa.
On October 24, the apex court had suspended until November 15 the order of the Peshawar High Court, declaring the Khyber Pakhtunkhwa government’s Action in Aid of Civil Power Regulation Ordinance 2019 as unconstitutional and issued notices to the AG as well as the KP government.
On Thursday, the court directed Additional Advocate General Khyber Pakhtunkhwa (KP) Qasim Wadood to submit today (Thursday) complete details of the number of interment centres functioning in the province and providing list of detainees there along with complete addresses of their families. The chief justice observed that it’s a serious issue relating to fundamental rights of people. “This is a serious issue which has affected thousands of people and millions of families as well,” the CJP remarked, adding that if these interment centres were established lawfully, there is no issue but if they were established unlawfully, the court cannot ignore them.
The court also rejected the plea of Attorney General Anwar Mansoor Khan seeking recusal of Justice Qazi Faez Isa from the bench, saying that the judge had levelled allegations against him, the president, the prime minister as well as the army. “The judge who had levelled allegations against me, the federation for being biased and the army for using the powers beyond its jurisdiction cannot sit on the bench with open mind,” Anwar Mansoor contended.
The court rejected the plea of the attorney general while the chief justice told the AG that the matter he was referring to relates to another case, adding that the approach of a judge cannot remain the same in every case. The AG contended that the judge had levelled allegations against him and had raised questions on the jurisdiction of the army.
Justice Gulzar Ahmed told the AG he would be comfortable as it was not his personal case, adding that representing the federal government, he was to assist the court.
“But I will not be comfortable as well and it is my right to raise objections,” the AG submitted.
The chief justice said it is the prerogative of the judge to refuse or to recuse himself from the bench. The CJP recalled that after assuming the charge, he had vowed to maintain transparency and constitute benches for adjudicating upon important constitutional matters as well as ensuring protection of the fundamental rights of the people, guaranteed by the constitution.
"We have taken the oath to perform our duties without any fear and without being influenced by anyone, so forget about that”, the CJP told the AGP. The CJP then asked the AGP that the court has heard his objections, now he should commence his arguments, saying that the matter relates to fundamental rights of people who have been detained in interment centres.
The AG said he will not argue and sought adjournment but the court rejected both the pleas of the AG and asked the counsel of former senator Farhatullah Babar to commence his arguments.
The court had clubbed the joint petitions filed by Farhatullah Babar, senior leader of the Pakistan Peoples Party, along with those of Afrasiab Khattak, Bushra Gohar and Rubina Saigol under Article 184(3) of the constitution, challenging the Khyber Pakhtunkhwa government’s ‘Action in Aid of Civil Power Regulation Ordinance 2019.
The counsel for Farhatullah Babar submitted before the court that they have challenged the impugned Khyber Pakhtunkhwa government ordinance extending certain powers of the armed forces, which were available in the erstwhile Fata and Pata while acting in aid of civil power to the entire province. He said the ordinance assigns wide-ranging powers to the authorized officers and armed forces besides giving an interning authority to detain a suspect until the continuation of action in aid of civil power by the armed forces. The armed forces have also been empowered to occupy any property with the approval of the provincial government.
The counsel submitted that they had prayed to the court to declare that any direction issued by the federal government to the armed forces under Article 245(1) of the constitution to act in aid of civil power is liable to be struck down by the courts on the grounds of mala fide, being without jurisdiction or coram non judice. He submitted that they had sought to declare that any direction 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 is unlawful since any such authorization would be ultra vires of the scope of Article 245(1) which only contemplates actions in aid of civil power and to hold that any such directions issued authorising action under the impugned ordinance are therefore unlawful and of no legal effect.
He prayed to the court to declare that the federal government must make public any directions 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 and to direct any such subsisting directions and reasons to be disclosed. The counsel informed that they had also sought to direct the federal and provincial governments to ensure that the cases of all individuals interned or held under the terms of the impugned ordinance are reviewed and they are, within a reasonable period of time as this court deems fit, either released or transferred to the relevant civilian law enforcement agencies which may detain them only to the extent permitted and in accordance with the applicable law.
The chief justice asked the counsel that the ordinance has lapsed, adding that if the court upholds the decision of the Peshawar High Court, this petition will come to an end and the interment centres established in the province will also go. “We have raised objections that the ordinance 2019 has violated fundamental rights of citizens that’s why they approached the apex court while invoking Article 184(3) of the constitution,” the counsel submitted
The chief Justice asked the counsel to assist the court regarding the date on which the interment centres were established in the province. “Give us the history so that we have a complete picture”, the CJP asked the counsel to which the counsel referred to page 46 of his petition, saying that in 2008, when the PPP was in power, there arose the law and the order whereby the army was called in aid of civil power under Article 245 of the constitution but they don’t know under what authority or constitution they are working.
The chief justice observed that the Home and Tribal Affairs Departments of the government of Khyber Pakhtunkhwa and the Provincially Administered Tribal Areas (PATA) requested the Ministry of Interior to deploy army in 2008.
The counsel said that in 2015, the provincial govt sought permission. “Which permission whether a fresh request was made to the federal government”, the CJP asked the lawyer. The lawyer replied in affirmative.
“Don’t you think that right now Khyber Pakhtunkhwa should be represented by someone who could give us a detailed background,” the CJP asked the lawyer to which he said yes.
Meanwhile, Additional Advocate General Khyber Pakhtunkhwa Qasim Wadood submitted before the court that Article 245 of the constitution does not contemplate any requirement of requisition by the provincial government. He submitted that it is the federal government that can deploy armed forces where it invokes Article 245. He contended that prior to Action in Aid of Civil Power 20019, the federal legislation namely Action in Aid of Civil Power Regulations 2011 was already promulgated and in case of lapse of the 2019 Ordinance, the regulations 2011 are still in place. He submitted that the omission of Article 247 from the constitution of Pakistan by the 25th constitutional amendment does not automatically repeal the laws that were formulated therein.
The court adjourned the hearing until 11.30am today.
On October 17, the Peshawar High Court had declared as unconstitutional the functioning of scores of internment centres in Khyber Pakhtunkhwa after the merger of the erstwhile Federally Administered Tribal Areas (Fata) and the Provincially Administered Tribal Areas (Pata) into the province. The court had directed the province’s inspector general of police (IGP) to take control of the centres within three days. The court had also asked the IGP to constitute a committee for scrutinising the case of each internee. The court had directed that internees against whom there was no case should be set free whereas the cases that had already been registered should be referred to normal courts. The federal government as well as the government of Khyber Pakhtunkhwa had challenged before the Supreme Court of Pakistan the order of the high court. On October 24, the SC suspended the order of the Peshawar High Court until November 15 and issued notices to all the respondents. Chief Justice Asif Saeed Khan Khosa had ruled that a larger bench would be constituted for examining the constitutionality of the instant matter.