PHC declares extending police-like authority ordinance void

PESHAWAR: The Peshawar High Court (PHC) on Thursday declared the Khyber Pakhtunkhwa Action (in Aid of Civil Power) Ordinance, 2019 illegal and unconstitutional and directed the Khyber Pakhtunkhwa police chief to take control of internment centres in which hundreds of terror suspects have been languishing since years. A division bench comprising Chief Justice Waqar Ahmad Seth and Justice Musarrat Hilali also directed the Inspector General of Police to form a scrutiny committee within three days and review the charges against the internees charged in terrorism cases and languishing there since years without trials. The court ordered that if the internees are found involved in the terrorist activities, then they be tried by the proper courts and those found innocent by the scrutiny committee should be released. The court declared the Khyber Pakhtunkhwa Action (in Aid of Civil Power) Ordinance, 2019 as void. The writ petition was filed against the promulgation of the ordinance through which the powers earlier assigned to the armed forces in erstwhile Fata and Pata have now been extended to the entire province. The court declared as illegal and unconstitutional the two Acts of the KP Assembly, passed for Continuation of Laws in Erstwhile Pata Act, 2018, and KP Continuation of Laws in Erstwhile Fata Act, 2019, which had been challenged in the high court.

During the hearing, Shabir Hussain Gigyani submitted before the court that first, the KP government was not competent to pass an act for the continuation of the law, which is already repealed as Article 247 of Constitution and was omitted.

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.

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.

Gigyani 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.

He argued 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 – which 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 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.

Advocate General KP, Shumail Ahmad Butt and Additional Attorney General Qazi Babar Arshad submitted that promulgation of the Khyber Pakhtunkhwa Action (in Aid of Civil Power) Ordinance, 2019 on August 5 was needed and had the proper procedure and the high court has no jurisdiction to hear the petition challenging the ordinance.