SC asks if KP government can make laws in derogation of Article 10A

The Supreme Court has questioned whether the Khyber Pakhtunkhwa government can make laws in derogation of Article 10A of the Constitution.

A five-judge bench, headed by Chief Justice Asif Saeed Khan Khosa, heard the federation's and KP'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 Chief Justice said: "The people question what treatment should be made with people [detainees] who had played football with the heads of law enforcement agencies' officials. With this argument they want the apex court to play football with the Constitution."

The KPK government in January and April this year made laws for FATA & PATA, and on August 5 the governor promulgated ordinance which was almost a reproduction of two regulations promulgated by the President of Pakistan in 2011 for FATA and PATA through which legal cover was given to several detention centers set up during the military operations in different regions.

The court observed whether it could be done under the constitution scheme. The Chief Justice said if the federation and the KP would not be able to satisfy the court that the laws were made in accordance with the Constitution scheme 'then they will go'.

Justice Gulzar inquired whether the laws made by KP can be in derogation of Article 10A of the Constitution. The provincial law has to be in consistent with Article 10A, he added.

The Chief Justice remarked that the issue [of detention] is about liberty of thousands of people and matter of sustenance of millions of people. However, the government is not taking this issue seriously.

Justice Khosa noticed that a person can be kept in detention for three months. After that the prison authorities have to present him before the review board. If the board is satisfied with their explanation then extension for detention for another three months could be given. The Chief Justice said, however, no one could be detained more than eight months without prosecution and trial, but the people in internment centers have been detained over the years.

The Chief Justice said the first hurdle is whether the law was made under constitution scheme. Second is whether anyone could be detained for an indefinite period. He asked the Additional Advocated General KPK Qasim Wadood, "If you cross the second hurdle then there will be nitty-gritty." He said the government will have the minutes and the orders of the review boards. "We can ask the government to produce the details of the review boards' proceedings. Why the detainees were not allowed to have certain rights under the laws?"

He said that in 1994, the Supreme Court in a criminal case, where a person was sentenced to be hanged, declared that the human dignity can't be denied even to a criminal person. He said in 1973 Constitution and in one another constitution of the country, there is mention of human dignity. He said in 1973 Constitution there is no discrimination and laborers and serfs are also treated as the equal citizens.

Referring to Article 245 of Constitution, the Chief Justice said there are two parts of the Article. One is external aggression and the threats of war, while the second portion of the Article deals with the Acting in Aid of Civil Power. The power is used by the civil authorities to call in the army at the time of war and/or peace. However, the army's help to civil authorities will be in accordance with law.

The Chief Justice noted as the Concurrent List has been abolished after the 18th Amendment and if any issue is not in the Federal Legislative List then it will be the provinces jurisdiction to legislate on that.

Justice Khosa said in the 25th Constitutional Amendment there is no saving clause to protect the erstwhile laws or for their continuity. The KP province decided that once for all the territories (PATA & FATA) be streamlined and it made laws on subjects which were under its jurisdiction. "If the matter is not in its jurisdiction then can the province legislate on it?" the CJP questioned. If the provinces making laws on subject which are not in their jurisdiction then would it not be usurpation of the federation power? he asked.

Qasim Wadood argued that it [detention] is preventive detention and there is criminal law for its regulation. The Chief Justice noted that the province can regulate the preventive detention, but no one could be detained for an indefinite period. The detention for umpteenth time without trial and prosecution is not permissible.

At the onset of the hearing, Attorney General for Pakistan Anwar Mansoor Khan and Justice Qazi Faez Isa had interesting discussion. Justice Qazi addressing the AGP asked, "You mean to say that the apex court ignores the Federal Legislative List." Anwar Mansoor said he is not feeling well therefore would not argue the case that day.

Justice Qazi remarked, "Why five judges are sitting here if you do not argue?"

The Chief Justice intervened and asked the attorney general to take a seat as they will hear other counsels. The case was adjourned until 25th November.