The Supreme Court on Friday questioned why KP Actions (in aid of civil power) Ordinance, 2019, was promulgated when the regulations were in place for continuation of laws in erstwhile FATA and PATA regarding internment centers.
Chief Justice Asif Saeed Khan Khosa asked why the validation of previous laws was needed through the Parliament. The Attorney General of Pakistan (AGP) was asked to enumerate the reasons for promulgation of the Ordinance 2019; otherwise, there will be 'great problem'.
AGP Anwar Mansoor argued that there was a need of continuity of the previous law. The Chief Justice observed that then it is implied acceptance that there was no continuation of laws. The previous laws or authorization were not in accordance with law.
A five-member bench heard the federation's and KPK's appeals against the Peshawar High Court verdict and the constitutional petition of the civil society against the Action in Aid (Civil Power) Ordinance, 2019.
The ordinance, issued by the KPK governor on August 5, extended certain powers of the armed forces, which were available in the erstwhile Federal Administrative Tribal Areas (FATA) and Provincially Administrative Tribal Areas (PATA) while acting in aid of civil power to the entire province.
The Ordinance, 2019 is said to be almost a reproduction of two regulations promulgated by the President of Pakistan in 2011 for FATA and PATA through which a legal cover was given to several detention centers set up during the military operations in different regions.
Justice Mushir Alam noted that in the preamble of the Ordinance it is written that 'miscreants are no longer loyal to the State.' He questioned 'if the miscreants were loyal earlier.'
Anwar Mansoor spoke about the rules and procedures of the internment centers. He said; "Inmates of internment centers are treated in a manner, which is humane." Medical facilities, clothing, food and religious teachings are imparted to the interned persons, adding that the KPK prisons rules are applicable to the internment centers. Family members can visit their intimates on the condition that they would not disclose information to others.
Justice Khosa remarked, "What you are telling seems to be that it is not secret confinement and the rights are available to the inmates." On papers it is all right but whether the centers are set up in accordance with constitution, he questioned.
Justice Gulzar Ahmed observed that since 9/11 the international scenario has changed. A new name is crafted for the terrorists i.e. non-state actors. When they are non-state actors then whether their allegiance is with any country or the organization whose member they are. In that context, internment centers were set up in the US and European countries. The US established jail for them in Guantanamo Bay. He asked the AGP, "You are trying to say you have evidence and the facts that interned persons are non-state actors."
The AGP contended that internees are rehabilitated and imparted Islamic teachings. Justice Khosa stated the main issue before this court is whether the people are kept in the internment centers legally in accordance with the Constitution. He said the Peshawar High Court (PHC) had struck down the Ordinance and other laws as those are contrary to the Constitution.
The Chief Justice said, "If these are unconstitutional then we will not go with the arguments you are advancing under the 'doctrine of necessity'." The AGP argued that extraordinary situations require extra measures to protect the state and lives of people from the miscreants. Justice Bandial said people who are disobedience to the state can be detained, but the question is whether the inmates can be deprived of their fundamental rights.
The AGP contended that the internment centers are not unconstitutional. The court observed then how they were set up. Justice Khosa inquired if the procedure was done constitutionally and validly.
The AGP instead of directly replying to the court's query said that those people were interned who had fought with Pakistan Army. The army secured the area and protected the people of those areas. Justice Gulzar remarked, "You mean to say they (inmates) are not entitled to any constitutional guarantee."
Justice Khosa asked the AGP, "You are acceding that it (continuation of erstwhile laws for internment centers) was not unconstitutionally transferred. I want to satisfy myself how the legal position developed." Noone is saying that the terrorists are good people or courtesy be shown to them. "On the contrary we want that they be treated sternly," he added.
Anwar Mansoor said that armed forces were called in Action in Aid of Civil Power in 2008. Justice Mushir Alam said they have to be subservient to the authority and not to undermine the authority.
A division bench of PHC comprising Chief Justice Waqar Ahmad Seth and Justice Musarrat Hilali on October 17 decided a writ petition along with a number of other petitions and the applications for contempt of court through a consolidated judgment.
The High Court declared that 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.
Copyright Business Recorder, 2019
Comments
Comments are closed.