On August 5 last year, just as India annexed Kashmir and unleashed on the people its army, the provincial government of Khyber Pakhtunkhwa issued an ordinance that empowered the military to do exactly the same to the people of the province. In the hype created against India at the time, few noticed what had been done to the long suffering Pakhtuns in Pakistan. Fewer still raised their voices against it.
The ordinance called Action in Aid of Civil Power Regulation 2019 gave sweeping powers to the armed forces to set up Guantanamo Bay-like prisons in the province under the name of ‘internment centres’ where suspects could be held indefinitely without any charge.
It empowered the armed forces to detain anyone in the province without charge or production before court for trial on a number of vaguely defined grounds. A resident of the province living anywhere else in the country or traveling out of it could also be arrested. As if an imperial conquering army, its officers were empowered to do so if it appeared that it was ‘expedient for peace’ to ‘interned’ anyone in these prisons. It does not matter if the resident was living in any other part of the country or abroad, the ordinance said.
Worse still, the ordinance provides that statements by members of the armed forces shall on their own be sufficient for convicting the detainees if at all they were tried in a distant future.
If a member of the armed forces overstepped his authority and resorted to extra judicial killing - like the recent incident of Hayat Baloch - it did not matter. Immunity has been given to the armed forces for “any action done, taken, ordered to be taken, or conferred, assumed or exercised by, before or after the promulgation of the ordinance.”
Never before the inhabitants of a federating unit were singled out for such degradation and humiliation.
The focus on Kashmir at the time was employed to divert public attention from the draconian law and what had been done to the people of the province. The environment of suffocation precluded organized protests. Concerns raised by international bodies were dismissed lightly.
The International Court of Justice (ICJ) said that the ordinance is “yet another example of Pakistan’s resort to ‘exceptional’ measures.” Warning that its implementation “will lead to serious human rights violations and miscarriages of justice” it asked the government to “reject this dangerous, oppressive, and counterproductive strategy and instead strengthen its judicial process and law enforcement in line with its domestic law and international human rights law obligations.” But who listened?
Meanwhile, the ordinance was challenged in the Peshawar High Court. On October 17 last year, a two-member bench of PHC, comprising illustrious Chief Justice Waqar Ahmad Seth and Justice Musarrat Hilali, struck it down as unconstitutional. More importantly it declared illegal the Guantanamo Bay-like prisons and directed the provincial inspector general of police to take them over and furnish a list of all inmates.
However, within a week, just as the provincial police was preparing to take over the illegal internment centres, an SC bench headed by CJ Asif Saeed Khosa on October 24 suspended the PHC order for three weeks. It decided to constitute a larger bench comprising the CJP, Justice Gulzar Ahmed, Justice Mushir Alam, Justice Umar Ata Bandial and Justice Qazi Faez Isa to examine the constitutionality of the ordinance. The court also allowed the present writer along with Afrasiab Khattak, Bushra Gohar and Rubina Siagol represented by Barrister Khwaja Ahmad Hosain as petitioners in the matter.
During hearings CJP Khosa observed that the United States had set up prisons outside its jurisdiction but we had set up the same in our own jurisdiction. It was also observed that a person cannot be detained for more than three months without producing him before a court of law.
At the last hearing in the case on December 4 last year, CJP Asif Saeed Khosa observed that under the law there had to be a periodic review of every detainee and asked whether the inmates were produced before the inquiry commission. “We are worried about each and every person, detained in the internment centres,” he said and directed the attorney general to collect the data on every inmate and produce it before the court.
Justice Gulzar Ahmed, then on the bench, perceptively inquired who is ‘enemy alien’ and whether a Pakistani citizen can also be declared ‘enemy alien.’ Justice Qazi Faez Isa asked if the federation really considered the inmates of internment centres as ‘enemy alien’ and not Pakistani nationals. Tricky, but important questions indeed.
Justice Gulzar Ahmed has since donned the robes of CJP. His question about the ‘enemy aliens’ and many other questions still remain unanswered. No hearing has taken place since the retirement of the former CJP on December 20.
Meanwhile, the illegal prisons continue to operate beyond the ambit of law, beyond any oversight and beyond any accountability of the officers of armed forces manning them. There is no information about who is inside these ghettos and in what condition. The inmates of these prisons have no access to legal aid and are not allowed to meet family members. They do not even know for what crime they have been held and for how long.
Sometime back, the PHC set aside the death penalty and other punishments awarded by military courts to scores of the inmates but the order too has since been suspended by the Supreme Court.
Meanwhile the officers empowered by the ordinance strut around confident that they are not answerable to anyone. After all, it is a matter of ‘national security,’ they believe.
The writer is a former senator
The ordinance called Action in Aid of Civil Power Regulation 2019 gave sweeping powers to the armed forces to set up Guantanamo Bay-like prisons in the province under the name of ‘internment centres’ where suspects could be held indefinitely without any charge.
It empowered the armed forces to detain anyone in the province without charge or production before court for trial on a number of vaguely defined grounds. A resident of the province living anywhere else in the country or traveling out of it could also be arrested. As if an imperial conquering army, its officers were empowered to do so if it appeared that it was ‘expedient for peace’ to ‘interned’ anyone in these prisons. It does not matter if the resident was living in any other part of the country or abroad, the ordinance said.
Worse still, the ordinance provides that statements by members of the armed forces shall on their own be sufficient for convicting the detainees if at all they were tried in a distant future.
If a member of the armed forces overstepped his authority and resorted to extra judicial killing - like the recent incident of Hayat Baloch - it did not matter. Immunity has been given to the armed forces for “any action done, taken, ordered to be taken, or conferred, assumed or exercised by, before or after the promulgation of the ordinance.”
At the last hearing of the case on December 4 last year, CJP Asif Saeed Khosa observed that under the law there had to be a periodic review of every detainee and asked whether the inmates were produced before the inquiry commission
Never before the inhabitants of a federating unit were singled out for such degradation and humiliation.
The focus on Kashmir at the time was employed to divert public attention from the draconian law and what had been done to the people of the province. The environment of suffocation precluded organized protests. Concerns raised by international bodies were dismissed lightly.
The International Court of Justice (ICJ) said that the ordinance is “yet another example of Pakistan’s resort to ‘exceptional’ measures.” Warning that its implementation “will lead to serious human rights violations and miscarriages of justice” it asked the government to “reject this dangerous, oppressive, and counterproductive strategy and instead strengthen its judicial process and law enforcement in line with its domestic law and international human rights law obligations.” But who listened?
Meanwhile, the ordinance was challenged in the Peshawar High Court. On October 17 last year, a two-member bench of PHC, comprising illustrious Chief Justice Waqar Ahmad Seth and Justice Musarrat Hilali, struck it down as unconstitutional. More importantly it declared illegal the Guantanamo Bay-like prisons and directed the provincial inspector general of police to take them over and furnish a list of all inmates.
However, within a week, just as the provincial police was preparing to take over the illegal internment centres, an SC bench headed by CJ Asif Saeed Khosa on October 24 suspended the PHC order for three weeks. It decided to constitute a larger bench comprising the CJP, Justice Gulzar Ahmed, Justice Mushir Alam, Justice Umar Ata Bandial and Justice Qazi Faez Isa to examine the constitutionality of the ordinance. The court also allowed the present writer along with Afrasiab Khattak, Bushra Gohar and Rubina Siagol represented by Barrister Khwaja Ahmad Hosain as petitioners in the matter.
During hearings CJP Khosa observed that the United States had set up prisons outside its jurisdiction but we had set up the same in our own jurisdiction. It was also observed that a person cannot be detained for more than three months without producing him before a court of law.
At the last hearing in the case on December 4 last year, CJP Asif Saeed Khosa observed that under the law there had to be a periodic review of every detainee and asked whether the inmates were produced before the inquiry commission. “We are worried about each and every person, detained in the internment centres,” he said and directed the attorney general to collect the data on every inmate and produce it before the court.
Justice Gulzar Ahmed, then on the bench, perceptively inquired who is ‘enemy alien’ and whether a Pakistani citizen can also be declared ‘enemy alien.’ Justice Qazi Faez Isa asked if the federation really considered the inmates of internment centres as ‘enemy alien’ and not Pakistani nationals. Tricky, but important questions indeed.
Justice Gulzar Ahmed has since donned the robes of CJP. His question about the ‘enemy aliens’ and many other questions still remain unanswered. No hearing has taken place since the retirement of the former CJP on December 20.
Meanwhile, the illegal prisons continue to operate beyond the ambit of law, beyond any oversight and beyond any accountability of the officers of armed forces manning them. There is no information about who is inside these ghettos and in what condition. The inmates of these prisons have no access to legal aid and are not allowed to meet family members. They do not even know for what crime they have been held and for how long.
Sometime back, the PHC set aside the death penalty and other punishments awarded by military courts to scores of the inmates but the order too has since been suspended by the Supreme Court.
Meanwhile the officers empowered by the ordinance strut around confident that they are not answerable to anyone. After all, it is a matter of ‘national security,’ they believe.
The writer is a former senator