Pakistan: Human rights campaigners successful in fighting for PHC to nullify ‘action in aid of civil power’ ordinance

Amina Masood Janua one of the signatories on the letter who campaigns on human rights in Pakistan

(Image Amnesty USA)

Several campaign groups in Pakistan have been successful in their fight to have  the provincial government’s “Action in Aid of Civil Power Regulation Ordinance” struck down by a high court on Thursday by deeming it unconstitutional as reported by the Express Tribune today. The paper stated,

“the court ruled to nullify the ordinance terming it, illegal, unlawful and conrary to the consitution

It further directed the IGP to over internment centres in the province and share a list of the people there.”

In a letter to supporters, human rights activist, Amina Masood Janjua (Defence of Human Rights, Pakistan) wrote explaining the concerns regarding the ordinance, todays’s decision and why it had been overturned as follows,

Greetings from Pakistan!!

I hope this email finds you all well. DHR as always, is not just involved in campaign and street protests but also actively indulges into policy making , and law consultancy mechanisms so as to make better and victim friendly laws for the citizens of Pakistan and make a tough resistance against those unfriendly, anti -human rights and unconstitutional laws and ordinances promulgated by the Government.

During the last few months the Khyber Pakhtunkhwa government has promulgated an ordinance extending certain powers of the armed forces, known as Action in Aid of Civil Power Ordinance,  which was implemented in the former Fata and Pata earlier on to be extended to the entire province this time.

The KP Actions (in aid of civil power) Ordinance, 2019, which was issued by the provincial governor on Aug 5th 2019, is almost a reproduction of two regulations promulgated by the president in 2011 for Fata and Pata through which legal cover was given to, Disappearances, Target killing, Illegal Arrests , use of Torture and unchecked powers of Detention to several detention centers set up during the military operations in different regions.

The ordinance assigns wide-ranging powers to the authorized officers and armed forces besides giving an interning authority to detain a suspect on a mere pointing of any army person , until the continuation of action in aid of civil power by the armed forces.

Therefore  Defense of Human Rights joined hands with legal fraternity and human rights community to resist the implementation of this ordinance. Here Defence of Human Rights along with Foundation for Fundamental Rights, Law and Policy Chamber and other law firms releases a joint statement so that grave human rights violations feared through this anti- human rights ordinance can be avoided.

Today we also heard some good news in view of the ordinance that High Court Peshawar  has declared it unconstitutional, striking it down in the hearing on Thursday 17th October 2019. The two member bench  comprised of  Chief Justice Waqar Ahmed seth and Justice Mussarrat Hilali which heard the writ petition , further directed the Provincial governments to share a list of internees with the Police and Inspector General of Police of the province should take over the control of all Illegal Internment centers KPK.

Lets hope and struggle that tables are turned on this highly notorious ordinance and the citizens of KPK and Pakistan in general could take a sigh of relief.

Best regards,

Amina Masood Janjua

https://tribune.com.pk/story/2081969/1-phc-scraps-action-aid-civil-power-ordinance/

Below is the original letter challenging the ordinance as follows…

Joint statement on “Actions (In Aid to Civil Power) ordinance 2019” (Pakistan)

Law and Policy Chambers           Defence of Human Rights

Foundation of Fundamental Rights

                                                 Faraz,Haider, Moazzam & Co.

Alongside the Defence of Human Rights, organizations and law firms dedicated to upholding fundamental human rights throughout the federation of Pakistan condemn the enactment of the Khyber Pakhtunkhwa Actions (in aid of civil power) Ordinance, 2019. Flying in the face of all democratic norms, on 5th August 2019, the Governor of the Khyber Pakhtunkhwa enacted this egregious law and made it operational throughout the province the Province. We demand that the law be revoked with immediate effect and that the residents of Khyber Pakhtunkhwa be restored to the status of full and equal citizens of Pakistan.

By this law the oppressive and rights-violative practices of the 2009 Actions in Civil Powers Regulation Act, limited in application till becoming defunct in 2018, to the former FATA and PATA,  have been extended to apply to the whole population of Khyber Pakhtunkhwa.

Against constitutional guarantees of equality, life, liberty, protection against torture, and other fundamental human rights, the  KPK Actions in aid of civil powers Ordinances empowers members of the armed forces to detain people without charge on a number of vaguely defined grounds (Section 9);  to arrest and detain any persons in KPK without having to produce them before a magistrate within 24 hours (Section 9 & 10) ; denies detainees the right to legal counsel (Section 9 & 10): enables military personnel to enter and search any premises they wish on the basis of mere suspicion ( Section 6)

The promulgation of the KPK Actions in Aid of Civil Powers Ordinance thus awakens the troubling possibility that an increasing number of people will be relegated to the operations of a lawless internment regime. This internment regime is already a dark blot on the nation’s conscience and we implore the government to seek to dismantle it rather than intensify and expand its operations.

We thus draw specific attention to the following guarantees that citizens of Pakistan and all persons resident in the country possess:

  • No person shall be deprived of life or liberty saves in accordance with law. (Article 9)
  • No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice. & Every person who is arrested and detained in custody shall be produced before a magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the nearest magistrate, and no such person shall be detained in:custody beyond the said period without the authority of a magistrate. (Article 10)
  • For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process. (Article 10 – A)
●       All citizens are equal before law and are entitled to equal protection of law. (Article 25)

With the amendment of Article 247 of the Constitution of Pakistan through the 25th amendment, the population of an erstwhile FATA and PATA were finally formally conferred the guarantees of an equal law. Unfortunately though such liberation was only illusory and the government has in fact robbed not only the people of the former tribal areas but also the larger citizenry of KPK province of their fundamental rights. This is clearly violative of Article 25 of the Constitution which does not allow for arbitrary distinctions to be drawn rendering any portion of the populace less protected under the law.

While hearing a petition challenging the validity of this law the Honorable Chief Justice of the Khyber Pakhtunkhwa High Court, Mr. Justice Waqar Ahmad Seth, noted that the provincial government has imposed a state of emergency by vacating the province of constitutional protections for its citizens. Importantly though, a lawful emergency as per Article 232 can only be announced by the President of Pakistan and only to counter circumstances such as threat of war or external aggression. Even under such an emergency, the Constitution does not allow for the suspension of any of the rights quoted above.

We urge the Hon’ble constitutional courts of Pakistan to immediately strike down this law for the protection of the constitutional rights of the citizens of KPK. We also urge the Government of Pakistan to immediately revoke the Khyber Pakhtunkhwa Actions (in Aid of Civil Power) Ordinance 2019  and to review all national security legislation to ensure it is fully compatible with our constitution and with the international human rights law and standards which Pakistan must adhere to.

Signed by

Amina Masood Janjua (Chairperson DHR)

Ch. Omer Malik (Advocate High Court Islamabad)

Umer Gilani (Advocate High Court Islamabad)

Omer Imran Malik (Advocate, Islamabad)

Haider Imtaiz (Advocate High Court Islamabad)

Zunera Shahid (Deputy Director FFR)

Marrium Rauf (Advocate High Court, FFR)

Aishah Masood (Campaign Country Staff AFAD)

END

Carol Anne Grayson is an independent writer/researcher on global health/human rights/WOT and is Executive Producer of the Oscar nominated, Incident in New Baghdad.  She was a Registered Mental Nurse with a Masters in Gender Culture and Development. Carol was awarded the ESRC, Michael Young Prize for Research 2009, and the COTT ‘Action = Life’ Human Rights Award’ for “upholding truth and justice”. She is also a survivor of US “collateral damage”.

About Carol Anne Grayson

Blogging for Humanity.... Campaigner/researcher global health/human rights/drones/WOT/insurgency http://www.esrc.ac.uk/ESRCInfoCentre/PO/experts/Health_and_Wellbeing.aspx Exec Producer of Oscar nominated documentary Incident in New Baghdad, currently filming on drones.
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