Ordinance promulgated by KP governor challenged in SC

• The impugned Ordinance authorizes the armed forces to detain anyone at anytime anywhere in the province.
• Petitioners seek that the Ordinance be declared as unconstitutional and violating the fundamental rights of the people.
• Three of the petitioners namely Afrasiab Khattak, Bushra Gohar and Farhatullah Babar belong to the Khyber Pakhtunkhwa province.

ISLAMABAD: A petition challenging the 'Action in aid of Civil Power' Ordinance promulgated by the Governor Khyber Pakhtunkhwa in August last was filed in the Supreme Court on Thursday.

The impugned Ordinance authorizes the armed forces to detain anyone at anytime anywhere in the province without assigning any reason and without producing the accused before a court of law.

The petition filed by former senators Farhatullah Babar and Afrasiab Khattak, former MNA Bushra Gohar and education expert Rubina Saigol through Advocate Supreme Court Barrister Khwaja Ahmad Hosain seeks that the Ordinance be declared as unconstitutional and violating the fundamental rights of the people.

The petition also pleads that the cases of those interned in military's internment centres be transferred to the civilian law enforcing agencies and to declare any direction issued by the federal government to the armed forces under Article 245 (1) as justiciable and liable to be struck down on the grounds of malafide and being without jurisdiction.

The federal government should make available to the public any directions issued to the armed forces to act in aid of civil power and the reasons why such directions were issued.

The petition seeks 'urgent' relief as everyone in the province had been subjected to a "parallel and draconian legal system" which authorizes use of force against them and to detain anyone without charge for an undefined duration while denying him/her any judicial remedy.

The petitioners are aggrieved as citizens of Pakistan because the Ordinance provides for detention of anyone even on a visit to the province and "even the petitioners who do not belong to KP are concerned at its impact on their fellow citizens in KP".

Three of the petitioners namely Afrasiab Khattak, Bushra Gohar and Farhatullah Babar belong to the Khyber Pakhtunkhwa province.

The petition cites the Islamabad Dharna case for invoking the suo moto jurisdiction. In the Islamabad Dharna case the SC held "jurisdiction under Article 184(3) may be invoked by the Supreme Court if two preconditions are met. Firstly, the matter must one of public importance and, secondly, it must pertain to the enforcement of any of the fundamental rights".

The petition recalled that during hearing before Peshawar High Court recently in a case challenging different sets of laws applicable in the settled and the newly merged tribal districts it was disclosed that the ordinance was promulgated on August 5, 2019. It was promulgated to so as to argue that the law on internment centres and detention without cause was applicable to the whole of province and not just tribal areas and hence there was no discrimination.

In 2011, two identical Regulations Actions (in Aid of Civil Powers) contemplating detention without charge and other draconian provisions were promulgated applicable to FATA and PATA of Pakhtunkhw province. These Regulations were not supposed to continue indefinitely and once the threat had abated these would be withdrawn and the interned would be handed over to the civilian law enforcement agencies to be proceeded against in accordance with law.

Article 247(7) of the Constitution stipulated that neither the Supreme Court nor a High Court shall exercise jurisdiction under the Constitution in relation to the Tribal Areas unless Parliament by law otherwise provides. However under the 25th Amendment in May 2018 FATA and PATA were merged in the province. The Amendment also removed Article 247 and the ouster clause contained in it, it said.

Any direction to armed forces that grants them absolute civil power or replaces civil power with the power of the Armed Forces, is ultra vires of the relevant Article of the Constitution and unlawful.

The Article only contemplates that the Armed Forces will “aid” civil power. The primacy of civil power must at all times remain. There can be no absolute delegation of civil power pursuant to Article 245(1), the petition maintained.