Petition against Action (in Aid of Civil Power) Ordinance: PHC gives more time to AG for submitting comments

PESHAWAR: The Peshawar High Court (PHC) Chief Justice Waqar Ahmad Seth observed on Tuesday that it seems the Khyber Pakhtunkhwa government has suspended the Constitution by promulgating the Khyber Pakhtunkhwa Action (in Aid of Civil Power) Ordinance in the province.

"The purpose of the ordinance is to give legal cover to those pending cases in which suspects are still languishing at the internment centres for many years," he observed, while hearing a writ petition challenging the ordinance and legal cover by the provincial government to the internment centres through laws, which the petitioner claimed was ultra vires of the Constitution. However, the two-member bench gave more time to the Khyber Pakhtunkhwa Advocate General for submission of comments before the next hearing.

The writ petition was filed against the promulgation of the ordinance through which the powers earlier assigned to the armed forces in erstwhile Federally Administered Tribal Areas (Fata) and Provincially Administered Tribal Areas (Pata) have now been extended to the entire province.

A division bench comprising Chief Justice Waqar Ahmad Seth and Justice Muhammad Naeem Anwar issued a notice to the provincial government for the submission of comments on the request of the Advocate General Shumail Ahmad Butt seeking more time for submission of comments.

During the hearing, the advocate general submitted that the writ petition had become infructuous after promulgation of the Khyber Pakhtunkhwa Action (in Aid of Civil Power) Ordinance, 2019 on August 5 and withdrawal of two laws - KP Continuation of Laws in Erstwhile Pata Act, 2018, and KP Continuation of Laws in Erstwhile Fata Act, 2019, which were challenged in the high court.

However, the petitioner Shabir Hussain Gigyani advocate argued that he has also challenged the recently promulgated ordinance, which was promulgated to defeat the writ petition in the court.

Chief Justice Waqar Ahmad Seth told the advocate general that the provincial government through this ordinance has imposed a state of "Emergency" in the province by curtailing the constitutional rights of the citizens of this province.

The bench fixed October 8 for the next hearing into the writ petition that has challenged the Khyber Pakhtunkhwa Action (in Aid of Civil Power) Ordinance, 2019. The petitioner submitted that the Khyber Pakhtunkhwa government has promulgated an 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.

The petitioner stated that the KP Actions (in aid of civil power) Ordinance, 2019, which was issued by the governor on August 5, is almost a reproduction of two regulations promulgated by the President in 2011 for Fata and Pata through which legal cover was given to several detention centres set up during the military operations in different regions.

The petitioner stated that through the recent laws the KP government enacted two laws - KP Continuation of Laws in Erstwhile Pata Act, 2018, and KP Continuation of Laws in Erstwhile Fata Act, 2019 were only to empower the armed forces to take actions only in the former Fata and Pata and legal cover to internment centers, but now the KP government through this ordinance has empowered the armed forces to take actions against the citizens in the whole of Khyber Pakhtunkhwa province.

He said that the ordinance assigns wide-ranging powers to the authorised 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. As per the ordinance, the armed forces have also been empowered to occupy any property with the approval of the provincial government.