By Khalid Hussain-
A three-member bench of the Supreme Court (SC) of Pakistan ordered regular hearing by a larger bench while considering an appeal by the federation against Peshawar High Court (PHC) orders striking down the Khyber-Pakhtunkhwa Actions (in aid of civil power) Ordinance, 2019 on October 17. The court also stayed the PHC orders till the next hearing on 13 November 2019.
Heading the bench, Chief Justice of Pakistan (CJP) Asif Saeed Khosa observed dictating the order, “When America created the Guantanamo Bay it set it up outside its territory but we seem to be interning our people inside our own territory.” Justices Qazi Mohammad Amin and Amin-ud-Din Khan joined the CJ on the bench.
The PHC struck down the KPAO (Khyber-Pakhtunkhwa Actions (in aid of civil power) Ordinance, 2019) deeming it illegal, unlawful and contrary to the constitution. It also directed the Khyber-Pakhtunkhwa (KP) inspector general of police to take over all illegal internment centres and share a list of inmates with the court.
Attorney General of Pakistan (AGP) Anwer Mansoor argued citing Article 245(3) of the Constitution that the High Court lacked jurisdiction to hear the case. His long winded arguments had no legs to stand which led the CJP to point out that the Constitution provides no one shall be detained for more than three months without first being produced before a review board and the total length of detention cannot exceed eight months in a calendar year. The CJP inquired, “Are you running a Guantanamo Bay in Pakistan?”
AGP Mansoor insisted it was meant only to intern miscreants. This includes those who intended to commit or has commit an offence under the KPAO 2019 which has the same offences as the Pakistan Penal Code (PPC). The CJP patiently noted that slapping someone or threatening to hit were offences under listed under the PPC. “Does that mean you can book someone for these offences and detain them for 11, 12 or 15 years?” Reciting the long list of offences and referencing the PPC, the CJP asked, “Is there any crime that has been left out?”
“This is a very serious matter. You will arrest anyone based on their intentions?”, the CJP inquired. Upon this the AGP once again launched into provisions of Article 245 insisting it was only in aid of civil power that the Ordinance came into force. “We are concerned only about the liberty of people”, the CJP stated firmly. The AGP submitted the authority to intern was only during this period.
The CJP read out the relevant provision of the KPAO noting it did not say “nothing contained in the Constitution”. He reminded the AGP that Article 10 of the Constitution guarantees fundamental rights of the people. We need to examine the thrust of the PHC judgement. “FATA used to have a special status and the President had the power to promulgate laws for it. Now FATA has merged . It is now a normal part of Pakistan. All normal laws of the country apply to it”, the CJP said.
You cannot detain people indefinitely. The Constitution says you cannot detain anyone for more than three months. Extension of detention can be granted by a Review Board in two segments of three months and two months each for a total of eight months in a year. Then there must be a break in detention.
“You cannot detain people without due process. And the Review Board does not mean you nominate two officers to extend detention indefinitely. The Review Board must consist of two judges of the High Court and two judges of the Supreme Court, the CJP noted.
“This is an issue warranting due consideration. Let us formulate a larger bench”, the CJP ordered instructing the issuance of notices to all parties. “Let us thrash this”, he said.
“This requires an interpretation of the Constitution. There must be proof of crime. If you say some one is a terrorist that person cannot become one simply because you say he is a terrorist”, he noted.
The AGP submitted that terrorism has been under control since these detention centres were created. Terrorism has been brought under control, he said.
The CJP said this is an issue that warrants thorough thrashing. It is an important issue. It is a Constitutional issue, he stressed.
Granting leave to appeal to all parties, the CJP ordered AG KP to send two relevant petitions to the SC for further hearing in a larger bench to be formulated by the CJP.
The KPAO was issued by governor KP on 05 Aug 201 in a clandestine manner and only came to public knowledge on Sept 17 during a PHC hearing into a petition against two pieces of legislation by the KP Provincial Assembly. The “KP Continuation of Laws in erstwhile PATA Act, 2018”, and the “KP Continuation of Laws in erstwhile FATA Act, 2019” protect the laws enforced in the erstwhile FATA and PATA before their merger with KP.
The KPAO is almost a reproduction of two regulations promulgated by the President of Pakistan in 2011 for the Federally Administered Tribal Areas (FATA) and the Provincially Administrered Trible Areas (PATA) that gave legal cover to the detention centres set up during army operations in the tribal areas of KP. The ordinance bestows sweeping powers to the government and the armed forces including the authority to detain suspects till the continuation of action in aid of civil power. The armed forces are also empowered to occupy any property with the approval of the provincial government.
Contrary to the provisions of Qanun-i-Shahadat (Evidence Act), the ordinance held a statement or deposition by any member of the armed forces, or any officer authorised on his behalf, shall be sufficient for convicting an accused. Similarly, all evidence, information, material collected, received and prepared by the interning authority, or its officials, shall be admissible in evidence and shall be deemed sufficient to prove the facts in issue. The Ordinance mentions a set of offences, which are punishable with death penalty or imprisonment for life or up to 10 years along with fine and forfeiture of property. The ordinance also provides for the setting up of oversight board comprising two civilians and two military officers to review cases of each person interned within a period of time not exceeding 120 days, from the issuance of the order of internment.
The interning authority is empowered to intern any person, even if he is not in the defined area, who may obstruct actions in aid of civil power in any manner whatsoever; or if not restrained or incapacitated through interment shall strengthen the miscreants ability to resist the armed forces or any law enforcement agency; or by any action or attempt may cause a threat to the solidarity, integrity or security of Pakistan; or has committed or likely to commit any offence under the regulation so that the said person shall not be able to commit or plan to commit any offence during the actions in aid of civil power.”
While different petitions were filed by people kept in internment centres, two petitions are filed by advocate Shabbir Hussain Gigyani against the controversial KP Action (in Aid of Civil Power) Ordinance, 2019, KP Continuation of Laws in Erstwhile Pata Act, 2018, KP Continuation of Laws in Erstwhile Fata Act, 2019 and other laws.
The court adjourned till 13 November 2019.
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