PESHAWAR: Peshawar High Court Chief Justice Waqar Ahmad Seth on Tuesday observed that the Khyber Pakhtunkhwa government seemed to have suspended the Constitution by promulgating an ordinance to apply actions in aid of civil power law to the entire province.

He made the observation while heading a two-member bench hearing a petition against the KP Actions (in Aid of Civil Power) Ordinance, 2019, which was promulgated on Aug 5 to extend several powers exercised by the armed forces in erstwhile Fata and Pata to the entire province.

The bench consisting of the CJ and Justice Mohammad Naeem Anwar issued notices to the federal and KP governments asking them to respond to the petition on Oct 8 and adjourned the hearing until then.

PHC issues notices to federal, KP govts over petition against actions in aid ordinance

The impugned ordinance is almost a reproduction of the two regulations – Actions (in Aid of Civil Power) Regulation, 2011, for Fata and Pata - which were promulgated by the then president of Pakistan in 2011.

The ordinance had come to light on Sept 17 during a Peshawar High Court hearing into a petition against two legislations by the KP Assembly to protect the laws enforced in the erstwhile Fata and Pata before their merger with KP, including one governing internment centres.

When petitioner Shabbir Hussain Gigyani advocate learned about the issuance of the ordinance by the governor, he filed a fresh petition against it contending that all citizens of Pakistan were equal and there was no rational basis on which people of the province could be distinguished from the residents of rest of the country.

On Tuesday, both the petitions were fixed before the bench.

Provincial advocate general Shumail Ahmad Butt said he hadn’t got a notice about the fresh petition, so he should be given time to prepare for it.

The bench observed that as important issues were involved, Sept 26 would be fixed for hearing.

However, the AG said as vires of laws were challenged, those cases should be fixed for a later date so that they could be properly argued.

During proceedings, the chief justice wondered what inference could be drawn from abrupt promulgation of the ordinance when related cases were pending with the court.

He observed that apparently, the Constitution had been suspended by the provincial government by promulgating that ordinance.

The earlier petition has sought the court’s orders to strike down the KP Continuation of Laws in Erstwhile Pata Act, 2018, and KP Continuation of Laws in Erstwhile Fata Act, 2019, insisting the two laws violated the Constitution and the judgments of superior courts.

He also requested the court to declare the internment centres established under the Actions (in aid of civil power) Regulation, 2011, for Fata and Pata as unconstitutional.

The two regulations promulgated in 2011, had been given effect from Feb 1, 2008, to provide legal framework to the military operations conducted in Fata and Pata and to the detention facilities set up for different conflict areas.

In the fresh petition, Shabbir Hussain Gigyani said under the Constitution, there was no distinction between the inhabitants of Khyber Pakhtunkhwa and rest of the country, so the impugned ordinance was a violation to Article 25 of the Constitution.

On the touchstone of Article 25 and same principle discrimination, the Peshawar High Court and the Supreme Court had declared the Fata Interim Governance Regulation, 2018, in conflict with the Constitution.

He said under Article 8 of the Constitution, laws in violation of fundamental rights should be void.

Gigyani claimed that in the garb of the impugned ordinance, internees had been kept in secret detentions for last many years, which fell in the definition of ‘illegal detention’.

The petitioner claimed that there was no need or emergency for promulgation of the impugned ordinance and the same had been printed with backdate that was evident from its non-production in the provincial assembly.

Published in Dawn, September 25th, 2019