[Dawn 15 November 2019] ISLAMABAD: The Supreme Court expressed its bewilderment during a hearing on Thursday over certain provisions of the Khyber Pakhtunkhwa Action In Aid of Civil Powers Ordinance which treat a statement by a member of the armed forces as sufficient evidence for convicting an individual detained at internment centres.
“When people get acquitted of charges, this is an easy way to pick them under the ordinance and then convict them on the basis of a statement by an army officer which will be treated as a final proof,” regretted Chief Justice Asif Saeed Khosa.
The chief justice, who heads a five-judge Supreme Court bench that has taken up a joint challenge to the ordinance by PPP stalwart Farhatullah Babar, right activists Afrasiab Khattak, Bushra Gohar and Rubina Saigol seeking scrapping of the KP Action in Aid of Civil Power Ordinance 2019 since it impinges upon citizens’ fundamental rights.
In addition to the petition, the larger bench is also seized with the federal government’s appeal against the Peshawar High Court’s verdict given in October last year declaring the ordinance as ultra vires and also terming illegal the continuation of laws in erstwhile PATA Act 2018 and KP continuation of laws in erstwhile FATA Act 2019.
As the larger bench discovered holes in the law under which the armed forces were requisitioned and internment centres were set up in KP, Attorney General Anwar Mansoor disclosed before the Supreme Court that he was in the process of drafting a new law to bring all regulations in conformity with the Constitution.
The AG also furnished a sealed envelope before the court detailing the list of people interned in the internment centres along with their parentage. But the AG conceded that information regarding the date when they were interned was not available at present, but would be provided soon.
Although the envelope was not opened, the chief justice directed the court registrar to keep the document in safe custody and present it whenever needed.
During the hearing, the chief justice cited the example of Guantanamo Bay, created by the US administration to try terrorists outside its territory. “But we created internment centres inside the country to try our own people on bald allegations by denying their fundamental rights.”
When the attorney general tried to defend the KP ordinance on the grounds that it was aimed at protection of millions of people whose rights were breached by acts of terrorism, the chief justice retorted that even if one person was victimised to secure the rights of eight million, he would stand for his rights because the courts were the only avenue available to that individual.
Justice Khosa said the case at hand was the most important matter since it involved the freedom and rights of thousands of people and a large number of families. But it was regrettable that the issue was brushed under the carpet for 11 long years, the chief justice observed.
Citing the Geneva Convention, Justice Umar Ata Bandial recalled that it required even an enemy soldier to be treated with respect, but the AG replied that the convention was not applicable to unlawful combatants.
While going through Article 245 of the Constitution, the chief justice noted that a blanket invitation had been extended to the armed forces. He recalled that the government had asked the security forces to come in aid of the civil authorities in 2008, but it was only in 2011 that a law was enacted to allow setting up of internment centres.
The chief justice wondered whether the law had specified any length of time for an individual’s detention or whether captivity could be indefinite.
On a query by the court whether a civilian or an army officer supervises an internment centre, the AG replied that jail authorities were responsible for its affairs.
“Part of the issue is nobody knows what is happening,” Justice Qazi Faez Isa, a member of the bench, regretted.
The attorney general said that whenever an operation against terrorists was launched, the governor of the province concerned was answerable for all actions.
According to the law, the regulation will remain in force for an indefinite period, the chief justice observed.
When the AG contended that interned people were being rehabilitated, Justice Isa asked him whether he could produce any evidence to substantiate his claim. The AG stated he would produce evidence about rehabilitation soon.
When Justice Isa retorted that he had never heard about such centres in the media, the AG said the media never highlighted good things. But the chief justice reminded him that the media had no access to internment centres.
The chief justice recalled that when he attended a conference on terrorism in New York in 2016, judge Stephen Roy had cited Marcus Tullius Cicero, a Roman statesman, as saying over 2000 years ago that laws go silent in times of war.
“But I told the judge that in the 21st century, it was not possible to silence all laws,” Justice Khosa observed. Perhaps the AG was a firm believer in the popular maxim that “everything is fair in love and war”, the CJ quipped.
“We should also talk about the golden principles laid down by Islam and the Holy Prophet (peace be upon him),” Justice Isa stressed.
The chief justice cited an example that in a Central Asian country, an occupation force had to vacate a conquered territory after a Qazi adjudged that the force had violated the canons of Islam.