ISLAMABAD: The Supreme Court questioned the government of Khyber Pakhtunkhwa about the functioning of internment centres without authorisation for three months last year during the hearing of a petition on Friday against the KP-Action in Aid of Civil Power Ordinance.

Chief Justice Asif Saeed Khosa, who heads a five-judge Supreme Court bench, cautioned Attorney General Anwar Mansoor a number of times that he must satisfy the court about the legality of the matter. Otherwise, he warned, it would cause problems to the government.

And in a lighter vein the chief justice told the AG that he needed to “do more”.

The AG retorted that “in Pakistan we always have to do more”.

The joint challenge to the KP ordinance, brought by PPP stalwart Farhatullah Babar, rights activists Afrasiab Khattak, Bushra Gohar and Rubina Saigol, seeks scrapping of the ordinance since it “impinges upon fundamental rights”.

In addition to the petition, the larger bench is also seized with the federal government’s appeal against the Oct 17, 2018, Peshawar High Court (PHC) decision holding the ordinance as ultra vires. The verdict also held as illegal the provincial government’s decisions to continue with laws in the erstwhile Pata and Fata.

The issue cropped up when it came to the notice of the court that the 25th Constitution Amendment came into effect on May 31 last year after removal of Article 247 (7) from the Constitution and merger of both the Federally Administered Tribal Areas (Fata) and the Provincially Administered Tribal Areas (Pata) with KP.

Prior to the 25th Amendment, the tribal areas were administered under Article 247 of the Constitution, authorising the president to make regulations for peace and good governance in Fata and Pata.

Later the KP Assembly adopted the Action in Aid of Civil Powers Regu­lations giving protection to internment centres and other actions taken by the armed forces to deal with terrorism.

The law had also mentioned Fata even though the 25th Amendment had merged both Pata and Fata in KP.

Realising the mistake, the governor of Khyber Pakhtunkhwa promulgated the KP-Action In Aid of Civil Power Ordinance on Jan 4 this year by giving a retrospective effect to the law from Sept 2018 and by removing other deficiencies like mentioning of Fata in the earlier regulations.

But the Supreme Court was concerned why the ordinance ignored the period from May 31, 2018, when the 25th Amendment came into effect and provided protection only from September.

During the hearing, Justice Gulzar Ahmed regretted that the federal government granted some rights to the people of Fata and Pata through the 25th Amendment, but the provincial government took away those rights.

Justice Qazi Faez Isa observed that the amendment had done much more than merging Fata and Pata with KP since it had introduced democracy in the erstwhile tribal areas by giving them representation in the assemblies.

The chief justice asked whether the constitution makers provided any transition clause in subsequent laws because after the 25th Amendment the legislature knew well about the mechanism and arrangements under which the internment centres function and that all these systems have to be taken care of by the provinces. Otherwise, the arrangement will be rendered unconstitutional.

The attorney general read out the regulation to establish facilities afforded to interned persons, e.g. visits by family members, letters after 15 days, clothing, imparting skills and rehabilitation.

Anwar Mansoor said he would produce a video at the next hearing to show how internment centres functioned and how international organisations like Unicef were working with them.

Justice Gulzar Ahmed asked whether the government had evidence that the people being interned were non-state actors.

“No country in the world accepts them any longer since they have no allegiance to any country, except the organisation for which they are working,” Justice Ahmed observed.

The AG said that there were certain things which he cannot disclose.

But the chief justice wondered whether the list of missing persons had been shared with the commission on enforced disappearances. He explained to the AG that the court was not seized with the performance of internment centres, but with the legal status of the arrangement.

Attorney General Mansoor replied that the state had to be protected by taking extraordinary steps and “we have saved the country from miscreants”.

“I will try to convince the court that internment centres are not unconstitutional,” the AG said.

Published in Dawn, November 16th, 2019