Federal Constitutional Court bars Peshawar High Court from hearing MPO detention cases

Justice Aminuddin says notices being issued, other parties may file applications after reviewing court order

ISLAMABAD:

The Federal Constitutional Court (FCC) on Thursday barred the Peshawar High Court (PHC) from hearing cases concerning arrests under the Maintenance of Public Order (MPO) Ordinance until further orders in Khyber-Pakhtunkhwa (K-P).

The move came after PHC granted interim relief to Pakistan Tehreek-e-Insaf (PTI) workers arrested under Section 3 of the MPO Ordinance, ordering their release on bail. The court had also sought replies from the governor and the speaker against the governor’s rule in the province. Later, the K-P government challenged PHC's decision in the FCC.

During today's proceedings, a two-member bench headed by Chief Justice Aminuddin Khan heard a petition filed by the K-P government. During the hearing, Justice Aminuddin said the court was issuing notices to the parties concerned, saying that other parties could file their applications after reviewing the court's order.

The K-P advocate general argued that the high court could not interfere in areas where the military was conducting operations under Article 245 of the Constitution. He maintained that the high court could not exercise its jurisdiction under Article 199 in such circumstances.

Responding to the argument, Justice Aamer Farooq observed that several petitions under Article 199 were filed before the high court every day. “Will the high court not hear cases that come before it on a daily basis?” Justice Aamer questioned.

Meanwhile, former additional advocate general Shah Faisal Ilyas appeared on behalf of the respondents and objected to the court's order. “The court should hear us before issuing a stay order,” Ilyas argued.

He maintained that the provincial government's three objections could not be sustained.

Justice Aminuddin directed the counsel to review the court's order and submit his objections accordingly. “Read our order and then file your objections,” the chief justice remarked.

Read: K-P challenges PTI worker releases

On Sunday, the K-P government has challenged in the FCC the PHC's decisions that set aside preventive detentions of PTI leaders and workers under Section 3 of the MPO Ordinance and directed that they not be arrested.

The provincial government, acting through the chief secretary, has filed petitions against the PHC orders that declared the detentions under the MPO illegal and restrained authorities from making further arrests.

It has also decided to approach the FCC against the high court's directions for the release of those already detained under the ordinance. A bench headed by Chief Justice Aminuddin Khan will hear the petitions.

Another petition, filed by Sohail Afridi’s brother seeking the immediate release of the non-functional chief minister, is pending before the Peshawar High Court (PHC). On October 13, Afridi's brother moved the PHC, arguing that his brother's alleged abduction and continued detention violated his fundamental rights and demanding an independent judicial inquiry into his disappearance. The petition was filed amid uncertainty over Afridi’s whereabouts following the imposition of emergency and governor’s rule in K-P on October 11, which brought the PTI-led provincial government to an end and transferred its powers to Governor Faisal Karim Kundi.

Read: FCC lists challenge to PHC's PTI order

On Tuesday, the PHC said a larger bench should be constituted to hear the petitions regarding the whereabouts of Afridi, non-functional K-P chief minister, Provincial Assembly Speaker Babar Saleem Swati, and MNA Junaid Akbar, among others, saying that the case was being sent to the chief justice.

Justice Syed Arshad Ali and Justice Muhammad Faheem Wali heard the cases and said they were being sent to the CJ, who should constitute a larger bench. Advocate General Sanaullah also stated, "It is our request too that a larger bench be constituted."

During hearing, the petitioners' counsel Advocate Bashir Khan Wazir said during the hearing that Afridi and Swati had been "missing for several days," adding that the K-P governor and advisers had "confirmed that the chief minister, the speaker, and Junaid Akbar are in protective custody."

Wazir stated that the provincial assembly had "passed an immunity bill regarding the speaker and members of the assembly," adding that "the chief minister, speaker, and other members cannot be arrested."