Petitioners challenging KP’s ‘Action in aid of’ Ordinance that allowed military to set up internment centres throughout the province filed an appeal against the order of the assistant registrar that held the petition as ‘not entertainable’.
The appeal filed by Barrister Ahmad Hosain also urged that the main constitutional petition be heard together with the appeals of the Federation and Pakhtunkhwa province against the decision of the Peshawar High Court striking down the Impugned Ordinance. Petitioners ex Senators Farhatullah Babar and Afrasiab Khattak, ex MNA Bushra Gohar and educationist Rubina Saigol had on Oct 17 challenged through Barrister Ahmad Hosain the August 5 Ordinance ‘Action in Aid of Civil Power’ by the KP government urging that it be declared against the Constitution and the law. The federal and all provincial governments were made respondents in the petition.
The Assistant Registrar however had on October 28 declared the petition non maintainable citing reasons that “(a.) That the petitioners have not pointed out that as to which of the Fundamental Rights involving the question of public importance has been violated in the instant case (.b). That Governor KPK has been made party as Respondent No.2, however he cannot be made party under Article 248 of the Constitution of the Islamic Republic of Pakistan and( c). That the petitioners may approach the proper forum for redress of their grievance”
The appeal against the Assistant Registrar’s order filed today said that it was “passed without properly appreciating and considering the contents of the petition, the facts of the instant case and without examining the relief prayed for therein, is wrong and liable to be set aside”.
It said the case clearly involves a matter of public importance and fundamental rights”, as the “The Impugned Ordinance provides, inter alia, for detention through internment in KP. It directly impacts any person in, or who may visit KP.”
Further, “The Impugned Ordinance is a matter of public importance since it impacts all persons in KP. It extends to the whole Province of KP. Any person in KP (whether belonging to KP or resident in KP or not) is subject to its provisions.
It is therefore a matter of public importance because of the scope of its applicability. It is also of public importance because of its subject matter. It is a law which authorises detention for an undefined duration without charge through internment and authorises the Armed Forces to take action in the Province by use of force including air power.
Quoting from the main petition the appeal contended that the Impugned Ordinance violates multiple fundamental rights including fundamental rights enshrined in Article 9, Article 10, Article 10-A, Article 13, Article 14, Article 15, Article 19, Article 23, Article 24 and Article 25 of the Constitution. It does so in several ways including by providing for internment of suspects without charge for an undefined duration and by authorising the Armed Forces to use force (including air power) within a part of Pakistan.
The petition is clearly entertainable and the decision of the Assistant Registrar is wrong, it said. The internment centres in the Province of KP which are given legal protection under the Impugned Ordinance exist and there are individuals detained in the centres. This is therefore not merely a case of apprehension of violation of fundamental rights but is a question of actual violation of fundamental rights.
It said that the Assistant Registrar has failed to consider the additional relief sought in the petition including regarding immediate publication on official websites of all laws by the Federation and the Provinces and regarding the justiciability of a direction under Article 245 of the Constitution. Both of these reliefs also raise questions of public importance relating to enforcement of fundamental rights. If the public is not immediately made aware of laws which apply, it constitutes a denial of the fundamental right to information contained in Article 19-A and renders all fundamental rights meaningless. It is also a violation of Article 4 and Article 10-A. In addition, where the Federal Government has issued a direction to the armed forces under Article 245(1) of the Constitution to act in aid of civil power, the public is entitled to be made aware of the direction and the reasons thereof. This is also a matter agitated in the petition which relates to enforcement of fundamental rights and is of public importance, the appeal maintains.
It is unclear whether the Assistant Registrar is proceeding on the basis that the rights of Pakistani citizens belonging to KP do not constitute a matter of public importance. If so, this assumption is wrong. The establishment of a detention system in an entire Province which enables detention without charge and without judicial recourse clearly violates fundamental rights and is a matter of public importance, it said.
The Petitioners throughout their Petition have pointed out in detail how the various provisions of the Impugned Ordinance violate fundamental rights and thus involve a question of public importance which can be adjudicated upon by the Honourable Supreme Court under Article 184 (3) of the Constitution, the appeal said..
It has been held in the case of Benazir Bhutto v Federation of Pakistan (PLD 1988 SC 416) that: “The plain language of Article 184(3) shows that it is open ended. The Article does not say as to who shall have the right to move the Supreme Court nor does it say by what proceedings the Supreme Court may be so moved or whether it is confined to the enforcement of fundamental rights of an individual which are infracted or extends to the enforcement of the rights of a group of a class of persons whose rights are violated.”.
Adjudication upon whether or not any fundamental rights have been violated or whether there is a question of public importance involved is a legal question which is to be adjudicated upon by the Honourable Judges in their judicial capacity through a judicial order and they should be allowed to do so.
That the Assistant Registrar has erroneously decided that the instant petition is non-maintainable. No relief is being sought against the Respondent No. 2 and the Governor has been impleaded as a pro forma Respondent as the Impugned Ordinance has been promulgated by him under the Constitution. The Governor has been impleaded not to make him answerable to the Supreme Court for promulgating the Impugned Ordinance but to give him an opportunity to be heard on the matter if he so desires.
About the objection that petitioners may seek recourse to other forums for redress it said that there is no other appropriate forum available for impugning or challenging the Impugned Ordinance on the touchstone of fundamental rights except for the Honourable Supreme Court.
According to media reports, the SC has suspended the order of the Peshawar High Court and has directed that the matter be referred to a larger bench given its significance. It appears therefore that this Honourable Court has prima facie determined that this is a matter of public importance which impacts fundamental rights.
The Order of the Assistant Registrar may kindly be set aside and the Constitutional Petition titled “Farhatullah Babar & Others” be placed before the Honourable Supreme Court for hearing together with the appeals of the Federation and KP Province against the decision of the Peshawar High Court striking down the Impugned Ordinance, the appeal further said.
