PESHAWAR: A bank of the Peshawar High Court (PHC) on Thursday declared the operation of dozens of detention centers in Khyber Pakhtunkhwa unconstitutional after the merger of former tribal areas administered by the federal government (Fata) and tribal areas managed Provincially (Pata) in the province.
The bank of the president of the Supreme Court Waqar Ahmad Seth and Judge Mussarat Hilali also ordered the inspector general of police (IGP) of the province to take control of the centers in three days.
The court requested the IGP to set up a committee to examine each inmate's case. Inmates against whom there was no case should be released, while cases that have already been registered should be referred to normal courts, the bank said.
After lengthy arguments by lawyers representing several petitioners and the Attorney General of Shumail Ahmad Butt Province and Additional Prosecutor General Qazi Babar Irshad, the bank declared the controversial Action Ordinance (in Help of Civil Power) 2019, which was unconstitutional promulgated by the governor of the province on August 5, and the two similar regulations of 2011.
Ask IGP to take control of the centers in three days
The bank also considered the Law Continuation Law of KP in the Pata Antigua Law, 2018 and the Law Continuation Law of KP in the Fata Antigua Law, 2019, through which the provincial government had granted legal protection to the laws in force in ancient tribal areas at the time of their merger in the province.
The bank issued a short order and said a detailed trial will be issued later.
While detainees detained in detention centers filed different petitions, lawyer Shabbir Hussain Gigyani filed two of the petitions that challenged multiple laws, including the KP Action Ordinance (in Civil Aid), 2019, Continuation of Laws of KP in Erstwhile Pata Act, 2018 and KP Continuation of Laws in Erstwhile Fata Act, 2019.
In May, Mr. Gigyani initially filed a petition asking the court to declare null and void the Continuation of KP laws in the previous Pata Act, 2018 and the Continuation of KP laws in the old Fata Law, 2019, in the that all the laws, regulations and norms, notifications, including the Regulation of Action (in Civil Aid), 2011, that were applicable in the former tribal areas were found.
He had asked the court to declare the detention centers established under the 2011 regulations unconstitutional and to order the government to hand over all the inmates to the respective courts of competent jurisdiction for their trial under the law.
Subsequently, Mr. Gigyani questioned the contested ordinance, claiming that all citizens of Pakistan were on equal terms and that there was no rational basis on which people in the province could distinguish themselves from those living in other parts of the country.
On July 20, 2011, the secretary of the interior of the province issued a notification, through which nine detention centers, where hundreds of alleged militants had been arrested, were notified as detention centers in the province.
Similarly, on August 12, 2011, the additional chief secretary, Fata, issued another notification, under which about 34 detention centers were notified in the former Fata. Through this notification, all the forts of the Frontier Corps and the political blockades in the seven tribal agencies (now districts) were declared detention centers.
Advocate General Butt opposed the petitions and argued that no inmate could be subjected to torture.
Gigyani said that after the passage of the Constitution Act (twenty-fifth amendment) of 2018, people from the former tribal areas could not be treated differently from those in the rest of the province and the country.
Posted on Dawn, October 18, 2019