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November 15, 2019

CJP Asif Saeed Khosa says will stand with helpless person

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November 15, 2019

ISLAMABAD: A sealed envelop, carrying details of Khyber-Pakhtunkhwa internment centres, was submitted in the Supreme Court (SC) by the government authorities on Thursday.

The SC ruled that it would examine the constitutionality of the Actions in Aid of Civil Powers Regulations 2011, observing that it’s not an ordinary matter but involves fundamental rights of thousands of people, detained in interment centres.

A five-member larger bench of the apex court, headed by Chief Justice Asif Saeed Khan Khosa, resumed hearing of the petitions, filed by the government of Khyber-Pakhtunkhwa as well as the federal government, challenging the Peshawar High Court (PHC) order on Oct 17, striking down the KP government’s Action in Aid of Civil Powers Regulations Ordinance 2019 as well as Vires of FATA Act 2019 and PATA Act 2018.

Other members of the bench included Justice Gulzar Ahmed, Justice Mushir Alam, Justice Umar Ata Bandial and Justice Qazi Faez Isa. On Oct 17, the PHC had declared as unconstitutional the functioning of scores of internment centres in KP after merger of the erstwhile Federally Administered Tribal Areas (Fata) and Provincially Administered Tribal Areas (Pata) into the 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 by the armed forces.

The court had directed the province’s inspector general of police (IGP) to take control of the centres within three days. On Thursday, the chief justice observed that the US had established Guantanamo Bay outside its jurisdiction for detaining foreign prisoners, but we have established interment centres in our country, detaining therein our own citizens, denying them their fundamental rights.

“These are the people who are helpless and have no remedy to defend their fundamental rights, but only the courts which can ensure their right to liberty and life,” the CJ remarked.

The chief justice wondered as to why the 2011 Regulations had not yet been taken into consideration, adding that the high court recently struck down the KP Action in Aid of Civil Powers Regulations Ordinance 2019, a continuation of the 2011 Regulations and now they have also entertained a petition invoking Article 184(3) of the Constitution.

“This is not an ordinary case, but a serious issue as thousands of people and their families have been affected; therefore, the court will examine the constitutionality of the Regulations,” the CJ said.

“Once we have a complete picture, then we will analyse the legality and constitutionality of the said ordinance,” the CJ said. The chief justice, while referring to Section 19(1) of the Actions (in Aid of Civil Power) Regulations 2011 termed it very interesting and diverted the attention of the Attorney General Anwar Mansoor Ali Khan to the sections of the said Regulations.

Section 19 (1) of the said Regulations relates to Admissibility of evidence and its handing, which states, “Notwithstanding anything contained in the Qanun-e-Shahadat, 1984 (PO 10 of 1984) or any other law for the time being in force, any member of the Armed Forces, or any authorised official deposing on his behalf in or any official statement or before the court to prove any event, offence or happening, shall be deemed to have proved the event, offence or happening by his statement or deposition and no other statements, deposition or evidence shall be required. “Such statement or deposition shall be sufficient for convicting the accused as well. “How come if there is no trial then award punishment straight away,” the CJ remarked, adding thanks God we did not receive such a case so far.

The chief justice asked is there was any law anywhere in the world where a person was detained and condemned unheard.

Attorney General read out sections of Actions in Aid of Civil Powers, Regulations 2011, submitting that the army was called in 2008 to aid in civil powers. He contended that the governor of the province was empowered to appoint in-charge for the interment centres. He said that in order to protect the lives of one million people, one thousand people could be taken into custody.

At this, the chief justice said that if one person was subjected to torture in the name of protecting one million people, he would prefer to stand with single person as a poor and helpless person has no remedy to defend and it is only the court that can ensure protection of his right to life and dignity.

During the hearing, the learned Attorney looked comfortable while arguing before the court and answering questions of Justice Qazi Faez Isa.

The other day, he had raised objections over Justice Isa seeking his recusal from the bench saying he would be uncomfortable as the judge had allegations against him, the federation as well as the army. The court however, had rejected his plea.

The AG submitted that the interment centres were not meant for punishment, but rehabilitation of the internees. At this, Justice Qazi Faez Isa termed the argument of AG surprising, saying “you are confining someone in incarceration but saying this is not punishment”.

Justice Isa asked the AG as to whether the in-charge of the interment centre is a civilian or military officer, to which the AG replied that the provincial jail authority was responsible for the appointment. The AG said that once the process was started, the whole provincial machinery will be responsible for the interment centre.

The CJ said that the governor had a specific role for describing the procedure, asking that if he was the representative of the federation in the province.

“Yes,” the AG replied.

Justice Umar Ata Bandial asked the AG as to whether he had written material regarding the internees, to which the AG replied in affirmative. Justice Umar Ata Bandial said “if you detained an enemy, even he has a right of defence under Geneva Convention”.

The AG said the internees are not subjected to torture but rehabilitated psychologically and mentally, to which Justice Isa asked as to whether these claims are only limited to paper work or something being done practically.

The AG replied that the court could constitute a commission that could visit and inspect these interment centres, to which Justice Isa asked the AG to establish it through documentary evidence, adding that they did not find news in media about these internment centres.

At this, the CJ said that media don’t have an access to these interment centres.

Earlier, in pursuance of the court order, Additional Advocate General Khyber-Pakhtunkhwa, through the attorney general, submitted a sealed envelope having details regarding interment centres, functioning in KP as well as the list of the internees detained therein.

The court had directed KP Additional Advocate General Qasim Wadood to submit complete details of number of interment centres, functioning in the province and providing list of detainees there along with complete addresses of their families.

Meanwhile, the court, while writing the order, directed its registrar office to keep the sealed envelope in its safe custody and present before the court if directed, and adjourned the hearing until Friday (today) at 10:30am. On Oct 24, the apex court had suspended until Nov 15, the order of Peshawar High Court, declaring the KP government’s ‘Action in Aid of Civil Powers Regulations Ordinance 2019 as unconstitutional, and had issued notices to AG as well as to the KP government.