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November 21, 2019

Constitutionality of KP internment centres must be established: SC


November 21, 2019

ISLAMABAD: The Supreme Court (SC) on Wednesday ruled for looking into legality and constitutionality of the establishment of scores of interment centres across Khyber Pakhtunkhwa. A five-member larger bench of the apex court headed by Chief Justice Asif Saeed Khan Khosa resumed hearing in the petitions filed by the government of KP as well as the federal government challenging the order of Peshawar High Court (PHC) on October 17, striking down the KP government’s ‘Action in Aid of Civil Power Regulation Ordinance 2019 as well as Vires of Fata Act 2019 and Pata Act 2018.

“We must satisfy ourselves about the constitutionality of the law pertaining to the KP government’s Action in Aid of Civil Power Regulation Ordinance 2019,” the chief justice remarked. The chief justice said that if they were not satisfied by the constitutionality of the said law under which the interment centres were established, then the whole may go.

Attorney General Anwar Mansoor Khan sought adjournment in the matter saying he was not well. Justice Qazi Faez Isa asked the AG that for what purpose they were sitting here when he was not going to argue. Justice Faez Isa asked the AG whether he wants to say that the court should ignore the federal legislative list pertaining to legislation enshrined in the Constitution.

“An aggressive attitude is being meted out to me,” the AG told the chief justice. The chief justice then asked the AG to sit down and said that they may hear other parties as the matter relates to scrutiny of the laws of provinces.

Justice Khosa while referring to the first part of Article 245 of the Constitution said that in time of foreign aggression, Army could be called in while the second part relates to action in aid of civil power. The CJP said that as per the Federal Legislative List provided in the Constitution, it is the Federation that makes legislation, but after the 25th Constitutional Amendment neither the previous laws enacted were given protection, nor it was held that the old laws will go in Continuation.

“Here the province made legislation which was not entitled to do so,” the CJP said, but the attorney general said that he will argue on this point. “Apparently there is a vacuum,” the CJP added.

Counsel for the petitioner Shabbir Hussian Gigyani, who had challenged the KP government’s Action in Aid of Civil Power Regulation Ordinance 2019, when asked, supported the verdict of the PHC. “Is it your stance that if the province started legislation than it will be a usurpation of Federation,” the CJP asked counsel Adnan.

“Yes”, the counsel replied. “But you did not say this,” the chief justice told the counsel with smile.

The chief justice said that apart from the legal aspect of the matter, the case is of much importance as it relates to the liberty of thousands of the people and millions of their families.

The chief justice asked Qasim Wadood, Additional Advocate General KP, to assist the court in details on the next date of hearing and adjourned the matter until next Wednesday.

At the end of the proceedings, the chief justice said that usually it is often asked as to how those people would be proceeded against who had played football with the heads of the people belonging to law enforcement agencies. “Our humble answer to them is whether we then play football with the Constitution,” the CJP remarked.

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