ISLAMABAD: The Supreme Court on Thursday expressed serious concern over “human rights violations” at the internment centres set up in Khyber-Pakhtunkhwa.
“The US has set up a detention facility in Guantánamo Bay outside its territorial limits to detain and interrogate foreign prisoners. In contrast we have detained our own citizens at internment centres where they have been deprived of their fundamental rights,” observed Chief Justice Asif Saeed Khosa while hearing the federal and K-P governments’ appeal against the Peshawar High Court’s order to annul the Action (in Aid of Civil Power) Ordinance, 2019.
The ordinance issued by the K-P governor on August 5 gave a legal cover to several detention centres set up during the military operations in the erstwhile Federally Administered Tribal Areas.
The ordinance also assigned wide-ranging powers to authorised officers and armed forces, besides giving an interning authority to detain a suspect until the continuation of action in aid of civil power by the armed forces.
However, the PHC on Oct 18 declared it unconstitutional and in violation of all fundamental rights as enshrined in the Constitution. It directed the K-P government to share the list of inmates with the police department, while directing the provincial police chief to take over all ‘illegal’ internment centres.
The federal and K-P governments later challenged the PHC order and their petitions were taken up by a larger Supreme Court bench that also comprised Justice Gulzar Ahmad, Justice Mushir Alam, Justice Umar Ata Bandial and Justice Qazi Faez Isa.
During the hearing, Attorney General for Pakistan Anwar Mansoor Khan submitted a classified report about the number of people detained in seven internment centres.
The chief justice, while commenting on the significance of the case, remarked that “this is the most significant constitutional matter in the present judicial history that has been swept under the carpet for 11 long years”.
He asked the AGP that they had not yet opened the classified report, but the lives of thousands of people might have been affected through the law. Upon this, the AGP stated that the detainees were in hundreds. He also said that a few people could have been detained to protect the lives of millions of people.
However, the chief justice noted that if one individual had been victimised to secure 10 million people, then he would stand with that person because “no one is the custodian of poor people except the court and the Constitution”.
The chief justice also expressed concern over the procedure adopted to try people detained at the internment centres. “When Qanoon-e-Shahadat is not applicable, then there is no need of trial and convict the person directly,” wondered the chief justice.
Justice Khosa also referred to the particular prevision of law, which stated that the statement of an army official will be considered as final and it will be enough to award conviction.
“Nowhere in the world does it happen that an individual will be proven guilty on the basis of mere allegations and courts uphold his trial,” said the chief justice. “The court is examining the legal status of the ordinance only.”
During the course of hearing, other members of the bench also gave important observations.
“It seems that a detainee has no right of defence and cross-examination during his trial,” noted Justice Umar Ata Bandial. “The Geneva Conventions apply on prisoners of war [enemies].”
Justice Gulzar Ahmad also referred to Article 4 of the Constitution. He asked the AGP whether it is not double jeopardy that a person would be detained for an indefinite period and later his trial would be initiated.
Justice Qazi Faez Isa remarked that Islam also gives protection to the prisoners of war. He noted that no protection has been given to these laws in the 25th constitutional amendment, passed by parliament last year.
Justice Isa also asked whether the army comes in aid of civil administration for an indefinite period. Likewise, he questioned whether a person would be detained at an internment centre until the existence of army.
The AGP told the bench that he was working on a new law that would be in accordance with the Constitution. Upon this, Justice Isa asked whether the new law would also be enforced through the Constitution.
“When the assemblies are functioning, then why these institutions are being bypassed,” asked Justice Isa. To which the AGP replied that after the promulgation of an ordinance, the same was tabled in parliament for approval.
However, Justice Isa noted that the option could not applicable in the case of the ordinance (the Action (in Aid of Civil Power) Ordinance, 2019) and thus it stood lapsed.
The hearing will resume today.