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October 23, 2019

PHC shoots down newly promulgated


October 23, 2019

ISLAMABAD: The Peshawar High Court (PHC) has handed down a damning verdict, striking down the internment centres, which were established on the force of newly promulgated Action (in Aid of Civil Power) Ordinance, 2019 after the merger of the tribal areas with Khyber Pakhtunkhwa (KP).

The short order was announced by the court on Thursday and the detailed judgment, which was sketchily reported in a small section of the press, was released on Monday. It shot down the ordinance.

Among other directions and observations, the two-judge bench comprising Chief Justice Waqar Ahmad Seth and Justice Ms Musarat Hilali, said that the ordinance was not even available on the website nor made public, knowingly, for the reason that it is hurting the fundamental rights as enshrined in the Constitution.

The panel further said that not only this ordinance is under discussion of the jurists and public at large rather the international organisations have also termed it unconstitutional and “lead to human rights violation”.

It quoted the denunciation of the ordinance by the International Commission of Jurists and wrote that these feelings and concerns of other forums also on the internet and social media, damaging the face of Pakistan.

The ruling authored by the PHC chief justice said that in missing persons’ case, the PHC court gets the reply from the KP home secretary, who submits the report under his signatures but he himself is not aware of the whereabouts and particulars of the detainees. The secretary gets information/report from a number of agencies i.e. six/seven and then file the report meaning thereby these internment centres are not with the civil administration as claimed, it said, adding that even in the presence of Action (in Aid of Civil Power) Regulation 2011 and the impugned ordinance, no clear picture regarding the operation, functioning, management etc. has been disclosed to the courts, which are very clear mala fide, ill-will and unconstitutional acts.

The judgment said it has come into the knowledge of the PHC during different proceedings that under the camouflage activities and protection of the regulation and law, the inhabitants of entire erstwhile tribal area are treated inhumanely and unconstitutionally as if they are not the citizens of Pakistan.

It said that since the inhabitants of KP, erstwhile tribal areas and rest of Pakistan are equal after the 25th Amendment and as such they are enjoying protection of law whereas the ordinance in question for depression, suppression and deprivation of the public is utter violation of the Constitution. It said each organ of the state is to function/operate within the specified constitutional bounds and as such no law, rules, regulations can be framed according to the will of an organ.

The judgment said that admittedly, in the ordinance and 2011 regulation, there is no concept of trial etc., rather it’s ‘preventive detention’ only and the duration of internment is given in section 11, which reads “the power of intern shall be valid from the date when this ordinance is to have come into force, or on the day the order of internment is issued, whichever is earlier, till the continuation of action in aid of civil power.”

Except this provision, the judges said, they have not come across any other law, which provides for preventive detention for a period of 90 days or more. Looking on this touchstone of violation of fundamental rights as enshrined in the Constitution along with the law of land, Section 61 of the Criminal Procedure Code prescribes that persons arrested are not to be detained for more than 24 hours. No law enforcing agency shall detain in custody a person arrested without warrant for period longer than 24 hours.

The judges said they have witnessed in a number of missing persons cases that they were detained for years and years without even providing the record to this effect. In about 15-20 percent such cases the detainees suddenly appear before the court and inform that they have been released by agencies and on the assurance of not disclosing anything.

The ruling said that these proceedings are not recorded [by court] in any of the order sheet for the last so many years for the reasons, not to expose the conduct of the agencies to the world. Article 10 of the Constitution provides safeguards as to arrest and detention to the effect, “every person who is arrested and detained in custody shall be produced before a magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the nearest magistrate and no such person shall be detained in custody beyond such period without the authority of the magistrate.”

The judgment said that according to the Pakistan Army Act, 1952, an amendment has also been brought in Section-2 (d) to the effect, “the accused so arrested shall be provided grounds of arrest within 24 hours of arrest as provided for in this act”. Section 2 is further amended by introducing clause c that “the accused shall have the right to engage a counsel of his choice and in case he is unable to engage a counsel due to any reason, the convening authority at its discretion may provide a counsel, at state expense, whereas in the so-called internment centres, the detainees are kept for years and years with no access to the lawyers etc., even they are denied meeting with their families/close blood relatives nor any charge is communicated to them. Neither there is any time given for prosecuting them. Any law or any custom or usage having the force of law insofar as it is inconsistent with constitutional fundamental rights, shall to the extent of such inconsistency be void, it said.

The verdict said that the state can’t make any law which takes away or abridge the rights so conferred and any law made in contravention of them shall to the extent of such contravention be void. Article 10-A provides for a fair trial and due process for the determination of civil rights and obligations or in any criminal charge against him. Likewise Article 4 provides for protection of law and to be treated in accordance with law which is inalienable right of every citizen and no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.

The judges said that they have witnessed in missing persons’ cases that for years and years the whereabouts of an individual are not known nor provided to his family.