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Government Extends Action in Aid of Civil Power To Entire Khyber Pukhtunkhwa Province

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ISLAMABAD: In an unprecedented move, the Khyber Pukhtunkhwa (KP) government extended Action in Aid of Civil Power Ordinance to the entire province which gives sweeping powers to the security agencies to take arbitrary actions in the name of security.

An ordinance was quietly passed on August 5, curtailing jurisdiction of the Peshawar High Court (PHC) in the province. Ironically, this move happened on the same day when the Indian government decided to revoke Article 370 in Indian held Kashmir, a move criticised by Pakistan on the official level.

Those experts that this scribe spoke to have failed to comprehend the rationale behind this ordinance. Experts say that on one hand the government is celebrating victory against militancy,  but on the other hand it is extending the time of a legislation that was meant to give sweeping powers to law enforcement agencies during extraordinary times only when militancy had peaked in KP.

The move has also been criticised by Human Rights Commission of Pakistan which said in a tweet that the ordinance could give rise to human rights abuses in KP.

A well-placed official in the law ministry told Naya Daur on the condition of anonymity that this is an extremely dangerous move by the government. “First, the ordinance was issued at a time when the provincial assembly was in session. Secondly, with the passage of the 25th Constitutional Amendment, PHC’s jurisdiction was extended to the erstwhile Federally Administered Tribal Areas (FATA). But with this ordinance, the PHC’s jurisdiction has been curtailed in the entire province. It can’t get funnier than this,” the official added.

A member from government benches, requesting anonymity, told this correspondent that after merger of FATA and so-called successful military operations, namely Zarb-e-Azab and Radd ul Fasad, the need was felt that the law that was enacted during the worst time of FATA has been extended to the entire province.

He said this move is alarming and counter-intuitive. “By notifying the ordinance, the government has literally declared martial law in the province. A subordinate legislation bypassing the constitution and suppressing fundamental rights is a blow to democracy and rule of law,” the legislator added.

Advocate Shabbir Hussain Gigyani, who challenged the ordinance, told media persons that the government made an illegal move by issuing an ordinance when the assembly was in session. The government is moving in the wrong direction by extending Action in Aid of Civil Power to the whole province.

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“Any security agency can pick a citizen up from his house, shop, school, college, mosque, court and his arrest cannot be challenged in any court of law in the province,” he added.

Gigyani also said that the government had extended powers of the armed forces to the entire province to counter his earlier petition seeking court intervention to order government not to discriminate against the people of erstwhile FATA and Provincially Administered Tribal Areas (PATA). The bench fixed September 24 for the next hearing.

The two regulations promulgated in 2011 had taken effect on February 1, 2008, and provided a legal framework to the military while conducting operations in FATA and PATA.

The ordinance reads:

“Whereas, there exists a grave and unprecedented threat to the territorial integrity of Pakistan by miscreants and foreign funded element who intend to assert unlawful control over the territories of Pakistan and to curb this threat and menace, the armed forces have been requisitioned to carry out actions in aid of civil power.”

It further reads:

And whereas, continuing stationing of the armed forces in territories that have been secured from miscreants in the province of the Khyber Pukhtunkhwa is necessary, and it is, therefore, it is imperative that a proper authorisation be given to the armed forces to take certain measures for incapacitating the miscreants by interning them during continuation of the actions in aid of civil power, and it is also necessary to endure that the armed forces carry out the said operation in accordance with law.”

“To address the situation, upon request of the provincial government, the federal government directed the armed forces to act in aid of civil power in certain defined areas to counter this threat to the sovereignty and integrity of the Islamic Republic of Pakistan while being subject to the law provide hereinafter,” it says.

In the Chapter-VII of Offences and Punishments, the ordinance reads, “Whoever, obstructed in any manner the actions in aid of civil power or threaten in ally manner whatsoever the peace and tranquility of any area by subversion, spreading literatures, delivering speeches electronically or otherwise, thus, inciting the people in commissioning any offence under any law shall be deemed to have committed offence under the ordinance.”

According to the ordinance and contrary to the provisions of Qanun-i-Shahadat (Evidence Act), a statement or deposition by any member of the armed forces, or any officer authorised on his behalf, shall be sufficient for convicting an accused. Similarly, all evidence, information, material collected, received and prepared by the interning authority, or its officials, shall be admissible in evidence and shall be deemed sufficient to prove the facts in issue.

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The ordinance mentions a set of offences which are punishable with death penalty or imprisonment for life or up to 10 years along with fine and forfeiture of property. The ‘defined area’ means the area notified by the provincial government, in which action in aid of civil power is being conducted in order to secure the territory or ensure peace in any place where armed forces have been requisitioned.

The ordinance also authorises the provincial government or any person authorised by it to act as interning authority having the powers to intern a person.

In addition, the interning authority is empowered to intern any person, even if he is not in the defined area, who may obstruct actions in aid of civil power in any manner whatsoever; or if not restrained or incapacitated through interment shall strengthen the miscreants ability to resist the armed forces or any law enforcement agency; or by any action or attempt may cause a threat to the solidarity, integrity or security of Pakistan; or has committed or likely to commit any offence under the regulation so that the said person shall not be able to commit or plan to commit any offence during the actions in aid of civil power.

Another peculiar, and dangerous according to human rights activists, feature of the ordinance is the definition of a “miscreant” that means any person who or who may not be a citizen of Pakistan and is intending to commit or has committed any offence under this ordinance which includes a terrorist, a foreigner, a non-state actor and the group of such persons by whatsoever names called. 

The ordinance also provides for the setting up of oversight board comprising two civilians and two military officers to review cases of each person interned within a period of time not exceeding 120 days, from the issuance of the order of internment.

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