Action in Aid of Civil Power: KP ordinance giving police powers restored

ISLAMABAD: The Supreme Court (SC) on Thursday suspended until November 15, the order of Peshawar High Court (PHC), declaring the Khyber Pakhtunkhwa government’s ‘Action in Aid of Civil Power Regulation Ordinance 2019 as unconstitutional.

A three-member bench of the apex court headed by Chief Justice Asif Saeed Khan Khosa and comprising Justice Qazi Muhammad Amin Ahmed and Justice Amin-ud-Din Khan heard the petitions filed by the government of Khyber Pakhtunkhwa as well as the federal government challenging the order of 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.

The court suspended the order of the Peshawar High Court until November 15 and issued notices to all the respondents.

Chief Justice Asif Saeed Khan Khosa ruled that a larger bench will be constituted for examining the constitutionality of the instant matter. Additional Advocate General KP Qasim Khan Wadood appeared before the court while on his request Advocate General Khyber Pukhtunkhwa presented his arguments through video link form Peshawar Registry.

Similarly, Attorney General for Pakistan Anwar Mansoor Khan also gave arguments, stating that under section 3 of Article 245 of the constitution a high court cannot exercise any jurisdiction under Article 199 in relation to any area in which the Armed Forces of Pakistan are, for the time being, acting in aid of civil power.

Chief Justice Asif Saeed Khan Khosa observed that the United States had established Guantanamo Bay outside its jurisdiction but here we are detaining people in our own jurisdiction. The court however, observed that a person cannot be detained for more than three months and without producing him/her in a court of law.

Attorney General said that the incidents of terrorism have decreased after the establishment of interment centers. Chief Justice said that in order to examine the instant matter a larger bench will be constituted. The court suspended the order of Peshawar High Court until November 15, issued notices to the respondents and other parties and adjourned further hearing.

On October 17, a two-member bench of the Peshawar High Court comprising Chief Justice Waqar Ahmed Seth and Justice Musarrat Hilali, while hearing the petition, filed by Shabbir Hussain Gigyani, challenging the Khyber Pakhtunkhwa government had promulgated the impugned ordinance extending certain powers, which were available in the erstwhile Fata and Pata while acting in aid of civil power, to the entire province.

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.

The court after hearing to the petitioner struck down the ordinance, declaring illegal, unlawful and contrary to the constitution. Later on, in a detailed judgment, Chief Justice Waqar Ahmad Seth and Justice Ms Musarat Hilali, had observed 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 court had further ruled 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 court recalled 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.

It is pertinent to mention here that Farhat Ullah Babar senior leader of Pakistan People's Party along with Afrasiab Khattak, Bushra Gohar of Awami National Party (ANP) and Rubina Saigol had also challenged the Khyber Pukhtunkhwa Actions (in aid of civil power) Ordinance, 2019 in the Supreme Court praying for declaring it as unconstitutional for being violation of fundamental rights guaranteed under the constitution.

They had further prayed 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 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.

Similarly, they had also prayed to the court to declare that the federal government must make publicly available forthwith 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 leaders of political parties had further prayed to direct the federal and provincial government to ensure that the cases of all individuals interned or held under the terms of the impugned ordinance are reviewed and they are, within such reasonable period of time as this court deems fit, either released or transferred to the relevant civilian law enforcement agencies who may detain them only to the extent permitted and in accordance with applicable law.