PESHAWAR: The Peshawar High Court on Wednesday expressed displeasure at the absence of the attorney general during a hearing into petitions against the Khyber Pakhtunkhwa Action (in Aid of Civil Power) Ordinance and some other relevant laws and warned that it would ask the deputy attorney general to plead the case on the next hearing if the attorney general didn’t show up.

Chief Justice Waqar Ahmad Seth and Justice Mohammad Naeem Anwar observed that the federal government’s requests for adjournments in different cases had led to long delay in the disposal of cases and thus, increasing backlog.

The bench later adjourned the hearing into around 25 petitions until Oct 17.

While different petitions were filed by people kept in internment centres, two petitions are filed by advocate Shabbir Hussain Gigyani against the controversial KP Action (in Aid of Civil Power) Ordinance, 2019, KP Continuation of Laws in Erstwhile Pata Act, 2018, KP Continuation of Laws in Erstwhile Fata Act, 2019 and other laws.

Warns will ask his deputy to plead case on next hearing

Provincial advocate general Shumail Ahmad Butt informed the bench that the ordinance was promulgated on Aug 5 and would lapse on Nov 4 after the completion of its constitutional life of three months.

The bench observed that other related issues were also raised in the petitions.

Mr Butt said the federal government was an important party to those cases and as vires of laws were challenged, it would be appropriate to hear its viewpoint about them.

When the bench asked about the attorney general, deputy attorney general Asghar Khan Kundi said his boss was busy with some important cases pending with the Supreme Court. He added that an application had already been filed on behalf of the attorney general regarding his absence.

The DAG said the attorney general had planned to go abroad in connection with official work.

The bench observed that it was not a reasonable ground to seek adjournment. The hearing was later adjourned until Oct 17.

The KP government had promulgated the impugned ordinance silently extending certain powers available to armed forces in erstwhile Fata and Pata while acting in aid of civil power to the entire province.

The KP governor has promulgated on Aug 5 the KP Actions (in aid of civil power) Ordinance, 2019, which is almost replica of two regulations promulgated by President of Pakistan in 2011 for Fata and Pata and through which legal cover was given to several detention centres set up during military operations in different regions.

The ordinance had come to light on Sep 17 when a two-member bench of the Peshawar High Court was hearing a writ petition challenging the two legislations of KP Assembly meant to protect the laws, which were enforced in the erstwhile Fata and Pata before merger with KP, including one governing the internment centres.

When the petitioner Shabbir Hussain Gigyani advocate came to know about the issuance of the impugned ordinance by the governor he filed a fresh writ petition challenging the ordinance contending that all citizens of Pakistan were equally placed and there was no rational basis on which people of this province could be distinguished from that of rest of the country.

In the earlier petition the petitioner had requested the court 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 has also requested the court to declare the internment centres established under the Action (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 contended that under the Constitution of Pakistan, there was no distinction between the inhabitants of Khyber Pakhtunkhwa and rest of the country, hence the impugned ordinance was in violation to Article 25 of the Constitution.

Published in Dawn, October 10th, 2019