Internment centres; SC forms 5-member bench to take up appeals against PHC verdict

The Supreme Court on Saturday constituted a five-member larger bench to take up appeals against the Peshawar High Court (PHC) judgment regarding 'Action (in Aid of Civil Power) Ordinance 2019 and to notify all the interment centers as sub-jails.

The federation and the Khyber Pakhtunkhwa government have challenged the PHC judgment before the top court, which on the last hearing (October 23), had suspended the High Court judgment till final decision of the appeals.

The federation filed the appeal through secretary Ministry of Law and Justice and raised 46 questions challenging the PHC judgment. It asked whether the High Court had any justification to rely upon "internet and social media" reports that are nothing but a source of gossip and gibbering done at the behest of anti-state elements in order to weaken the state of Pakistan.

The larger bench headed by Chief Justice Asif Saeed Khan Khosa and comprising Justice Gulzar Ahmed, Justice Mushir Alam, Justice Umar Ata Bandial and Justice Qazi Faez Isa will resume the hearing from November 13 at 2:00pm.

A division bench of the PHC comprising Chief Justice Waqar Ahmad Seth and Justice Musarrat Hilali on October 17 decided the writ petition along with a number of other petitions and the applications for contempt of court through a consolidated judgment. The High Court declared the Action (in Aid of Civil Powers) Ordinance 2019, KP continuation of laws in erstwhile Pata Act 2018, KP continuation of laws in erstwhile Fata Act 2019 and Actions (In Aid of Civil Powers) regulation, 2011 are ultra vires of the Constitution.

The High Court also held that Ordinance V of 2019 is of no lawful authority in view of which secretary home KPK Civil Secretariat Peshawar is directed to notify all the interment centers as sub-jails in accordance with law within 24 hours, from the receipt of the judgment and IG prisons KPK is directed to take control of all such jails so declared, within next 3 days.

The PHC further directed to release all the internees who are not charged in any case and a period of 90 days prevention detention has lapsed from the date of the arrest, and all those who have been charged shall be produced before competent court of law duly established in the area, failing which the secretary home KPK and the IG prisons KPK would be responsible for life and liberty of people interned in the said centers.

It further directed the secretary home KPK as well as IG prisons KPK to prepare a list of the internees and shall produce the same in the court/proceedings of missing person cases. All the exercise be completed within 7 days from the receipt of the judgment.

Different petitions were filed by detainees held at the internment centers, two of the petitions were filed by Advocate Shabbir Hussain Gigyani.

The lawyer Gigyani (Respondent No. 1) has filed a writ petition No 3035-P of 2019 as public interest litigation in which he has challenged the KP continuation of laws in erstwhile Pata Act 2018, KP continuation of laws in erstwhile Fata Act 2019 and Actions (In Aid of Civil Powers) Regulation, 2011. The KP Action (in Aid of Civil Powers) Ordinance 2019 was promulgated by the governor KPK on 5th August 2019. Gigyani also filed another petition No. 5056-P/2019 which challenged the Ordinance V of 2019, which was also clubbed with the earlier writ petition.

Gigyani said that after the passage of the Constitution (Twenty-Fifth Amendment) Act, 2018 the people of former tribal areas could not be treated differently than those in the rest of the province and the country.

Copyright Business Recorder, 2019