Peshawar High Court. PHOTO: PPI
Days after the Khyber-Pakhtunkhwa government decided to withdraw troops from Malakand division, the Peshawar High Court (PHC) on Tuesday directed the provincial and federal authorities as well as the army to initiate legislation to avoid legal crisis regarding detainees in internment centres there.
The two-member bench comprising Chief Justice Dost Muhammad Khan and Justice Nisar Hussain Khan, hearing the missing persons’ cases, said that media reports had highlighted the provincial government’s decision on a phased withdrawal of troops from Malakand. However, a critical issue will be the law under which detainees are to be tried. Raising concerns that militants could take advantage of the legal lacunae by approaching civil courts, which would have no option but to acquit even hardcore militants, the court said that the transfer of detainees to regular prisons and their mode of trial requires legislative cover before a withdrawal begins.
“Troops entered Malakand division to assist civil administration after orders of the prime minister through a gazette notification. A hasty withdrawal could create a number of legal and constitutional complications.
The most important of them will be the legal status of detainees in internment centres and the law under which they will be shifted to prisons run by the civilian government,” observed the two-member PHC bench.
The court directed the advocate general Khyber-Pakhtunkhwa, attorney general of Pakistan, Pakistan Army advocate legal branch, federal law division and provincial law department to sit together to find a solution to the legislative gap so that any future situation arising out of a withdrawal of troops could be handled by the civilian government.
Confirming the provincial government’s decision to initiate a three phase withdrawal of troops, Advocate General K-P Abdul Latif Yousafzai informed the court that currently three detention centres were operational in the province in Swat, Kohat and Malakand.
Talking to media outside the courtroom, Yousafzai said that the court had not raised any objection to the withdrawal but had instead drawn attention towards the need for proper legislation, particularly with regards to detainees in internment centres.
The court said that it had directed the government on numerous occasions to notify the trials for all detainees in detention centres and if any detainee requires a court martial then a sentence should be made in each case.
Published in The Express Tribune, September 18th, 2013.
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