[Dawn 26 November 2019] ISLAMABAD: Attorney General Anwar Mansoor admitted on Monday before the Supreme Court that the Action in Aid of Civil Powers Regulations 2011, the only law in the field that governs the functioning of internment centres, does not specify any detention period.
The explanation came when Chief Justice Asif Saeed Khosa observed that even if the detention of an individual was legal, how the court can allow it to go beyond three months in the absence of any legislation.
The AG informed the court that he had prepared the draft of a law to address deficiencies in the existing laws.
“Are you suggesting that the Supreme Court allow suspension of the Constitution for four months till such time as the new law comes into effect,” the chief justice wondered.
The chief justice headed a five-judge larger bench that had taken up a joint petition moved by PPP leader Farhatullah Babar, right activists Afrasiab Khattak, Bushra Gohar and Rubina Saigol challenging the Khyber Pakhtunkhwa Action In Aid of Civil Powers Ordinance 2019.
The court had also taken up the federal government’s appeal against a decision by the Peshawar High Court on Oct 17 last year to declare the ordinance as ultra vires.
Justice Qazi Faez Isa, a member of the bench, wanted to know “what was the joy for making a fictitious new law” to keep it out of the Federal Review Board in order to grant a three-month extension in detention under Article 10(4) of the Constitution.
The AG conceded that since Article 10 (4) was of a substantial provision, he was in the process of making the new law.
The government cannot determine the period of detention of individuals, but the review board can, Justice Isa observed.
The language of the provincial law, which already stands repealed, was the same as that of the federal law, Justice Isa observed. “How I can talk about a law which is not even before the court.”
At the outset of the hearing, the attorney general told the court that he intended to show a video to explain why it had become necessary to set up seven internment centres in Khyber Pakhtunkhwa.
The chief justice observed that the only issue before the court was the constitutionality of the law under which an internment centre functions.
The AG stated that the video would show what was happening in these centres and how the interned persons were being rehabilitated.
Although the court staff was directed to make arrangements for showing the video on Tuesday, the chief justice wondered whether the clip was being shown to prejudice the minds of judges.
He recalled that a video shown during the hearing of challenges to the 21st Amendment had affected the judges.
The AG contended that the 25th Amendment, through which Article 247 was removed from the Constitution by merging Fata and Fata with the laws of KP, was approved on the last date of the previous parliament in a hurry, but was enforced immediately.
“Since there was a law and order situation in view of terrorists’ activities, there was a need to call in the armed forces to deal with the serious issue,” the attorney general argued.
“You want to say that since terrorists continued operating in the area as they were doing before the 25th Amendment, there was a need for the internment centres,” observed Justice Gulzar Ahmed.
The chief justice asked whether it was correct that the 25th Amendment, which was adopted on May 31 last year, did not have any provision for continuity or monitoring of internment centres.