–Plea filed in SC against ordinance seeks ‘urgent’ relief for people subjected to ‘parallel and draconian legal system’
ISLAMABAD: The Peshawar High Court on Thursday struck down the Actions in (Aid of Civil Power) Ordinance promulgated by Khyber Pakhtunkhawa Governor Shah Farman on August 5, 2019, and declared it a violation of “fundamental rights enshrined in the constitution”.
The development was shared by North Waziristan MNA Mohsin Dawar in a tweet.
Peshawar High Court strikes down the Actions in (Aid of Civil Power) ordinance issued by Governor KP on 5th August 2019, by declaring it against the Fundamental rights ensured by constitution and has instructed to hand over the military controlled interment centres to IG Police.
— Mohsin Dawar (@mjdawar) October 17, 2019
According to the lawmaker, the court “instructed for handing over of the military-controlled internment centres to the KP Police”.
Meanwhile, a petition was filed in the Supreme Court on Thursday, challenging the legality of the ordinance.
The ordinance authorises the armed forces to detain anyone at any time 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 educationist Rubina Saigol through Supreme Court Advocate Barrister Khwaja Ahmad Hosain pleaded that the ordinance should be declared “unconstitutional and violating the fundamental rights of the people”.
The petition also 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 justifiable and liable to be struck down on the grounds of mala fide 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”.
The petition cites the Islamabad Dharna case for invoking the suo moto jurisdiction.
In the Islamabad sit-in 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 the 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 entire province, not just tribal areas; 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 Pakhtunkhwa 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.