PESHAWAR: While ruling that the recently-promulgated Action (in Aid of Civil Power) Ordinance, 2019, violates all fundamental rights of the people enshrined in the Constitution, the Peshawar High Court has directed the Khyber Pakhtunkhwa home secretary to notify all internment centres in the province as sub-jails within 24 hours.

A bench of Chief Justice Waqar Ahmad Seth and Justice Mussarat Hilali, which had declared that ordinance and two identical regulations of 2011 unconstitutional on Oct 17, also ordered the production of the lists of the people kept in internment centres within seven days.

In the 28-page detailed judgment of the case released on Monday, the court referred to Serial No 1 of the Fourth Schedule of the Constitution regarding federal legislative list and ruled that the plain reading of Serial No 1 and preamble of the 2019 Ordinance by the Governor would show that it was the job of Federation and the Governor had no authority whatsoever to pass such an Ordinance in the given circumstances.

By accepting two petitions filed by advocate Shabbir Hussain Gigyani, the court declared unconstitutional five laws, including the KP Continuation of Laws in erstwhile Pata Act, 2018, the KP Continuation of Laws in Erstwhile Fata Act, 2019, the two regulations of 2011 called Action (in aid of Civil Power) Regulation for Fata and Pata, and the KP Action (in Aid of Civil Power) Ordinance, 2019.

Production of internee lists in seven days also ordered

It directed the home secretary to declare all internment centres of the province sub-jails under the law within 24 hours of receiving a copy of the judgment and asked the inspector general (prisons) to take their control in the next three days.

The IG (prisons) was also told to release all internees, who were not charged in any case and a period of 90 days preventive detention for them has lapsed from the date of their arrest, and all those charged would be produced before the court of law duly established in the area.

The court warned that if the home secretary and IG (prisons) failed to comply with the orders, they would be responsible for the life and liberty of the people kept in those centres.

“Secretary Home as well as IG Prison prepare a list of internees and shall produce the same in the court/ proceedings of missing person cases,” the bench ruled, adding that all exercise should be completed by the two officials within seven days of receiving a copy of the judgment.

In some other petitions wherein family members of some internees had sought visitation rights, the bench ordered petitioners to contact the home secretary and IG (prisons) to claim the right to see detainees.

“It has come to the knowledge of this court during different proceedings that under the camouflage activities and protection of above mentioned regulations and law, the entire erstwhile tribal area citizens are treated inhumanly and unconstitutional, as if they are not the citizens of this country,” it ruled.

“Since the inhabitants of KP, the erstwhile tribal areas and rest of the country are equal after the Twenty-fifth Amendment and as such, they are enjoying the protection of law whereas the impugned Ordinance for depression, suppression and deprivation of the public is in utter violation of the Constitution, as well.

“We have witnessed in a number of missing persons cases that they detained detainees for years and years without even providing the record to this effect. During the missing persons cases about 15-20 % cases suddenly detainee appears before court and inform that he has been released by the agencies and on the assurance of not disclosing anything. These proceedings are not recorded in any of the order sheet for the last so many years for the reason not to expose the conduct of the agencies to the world,” it declared.

The bench observed that in the internment centres, the detainees were kept for years with no access to lawyers, etc. even they were denied meetings with families and no charge was communicated to them.

“The Regulation, 2011, and the Ordinance No V of 2019 clearly shows violation of entire human rights enshrined in the Constitution and the citizens of Pakistan under no circumstances be put to the mercy of Armed Forces for an indefinite period, or for investigation, prosecution or trial, the way they have been given,” it ruled, observing that nowhere in the world, what to say of Pakistan, the preventive detention is for an indefinite period and without providing the reasons for preventive detention.

The court also ruled that the state couldn’t make any law, which took away or abridged the rights so conferred and any law in contravention of Part-II Chapter-I of the Constitution, should be void to the extent of that contravention.

Published in Dawn, October 22nd, 2019