ISLAMABAD     -    Attorney General for Pakistan (AGP) Anwar Mansoor Khan on Thursday submitted sealed list of the people detained in internment centers situated in tribal districts that were merged with Khyber-Pakhtunkhwa last year in the Supreme Court.

A five-member SC larger Bench, headed by Chief Justice of Pakistan Asif Saeed Khosa and comprised Justice Gulzar Ahmed, Justice Mushir Alam, Justice Umar Ata Bandial and Justice Qazi Faez Isa, heard the Federal and the KP governments appeal against the Peshawar High Court (PHC)’s order to annul the KP Action (in Aid of Civil Power) Ordinance, 2019. During the course of proceedings, the Chief Justice asked when was the Army summoned under Article 245 and what was the Sub-Legislation made after summoning it.

The court would review the legal status of all events after considering thoroughly, he added. He asked for what purpose Army was called in 2008? He said that the Army would not have set up of internment centers after their arrival. Attorney General Anwar said that in 2008, the Army was called to assist the civil administration.

He said that internment centres were established in 2011. He said that Army was also called in July 2015. The Chief Justice said that the Army could work under the law if it was called. For the first time, a law on the working of military was formed in 2008, he added. He observed that from 2008 to 2011, the Army continued to operate without any law. Justice Qazi Faez Isa said that the court was only provided documents regarding calling Army under Article 245. He said that the Defence Ministry’s response regarding calling the military was not included in the documents.

The Attorney General said that a copy of the Defence Ministry’s response would be submitted in the court. The Chief Justice said that the response of the Ministry of Defence would determine the mandate of the Army.  The Attorney General said that according to the law, the presence of the Army would be maintained till it was withdrawn.  He said that the Army was called during the natural disasters, casualties, restoration of peace and to maintain law and order situation. He said the legislation was made in 2011 but was enforced from past dates.

The Chief Justice asked that had no one read the law before it was passed. There were many spelling mistakes in the draft law, he added. The Attorney General said that according to the law, the Governor or his designated officer could order for detention.  He said that the Governor had the authority to appoint in charges of internment centres. Justice Qazi Faez Isa asked that either the heads of the internment centers are civilian or military officials?

The Attorney General said that provincial jail authorities were in charge of detention centers and the detainees families could request for release. The competent officer conducted inquiry after receiving of an application, he added. He said that the authorised officer’s inquiry report decides the release of the detained person.

Justice Qazi Faez Isa asked that whether the Army came for an indefinite period to assist the civil administration? The Chief Justice asked that would the detained person remain in custody till the presence of the Army. Justice Gulzar Ahmed asked that was it not a double sentence that to be detained first and then handed over to the law? The Attorney General said that prisoning someone was not a punishment.

Justice Qazi Faez Isa said that it was a surprise that detention was not a punishment. The Attorney General said that civil and military officers review a detained person’s case in every four months. Justice Qazi Faez Isa asked that whether the case was reviewed in practical or in paperwork? The Chief Justice observed that according to the Ordinance, evidence would be considered correct.

As per Ordinance, the evidence had also been declared above the ‘Qanoon-i-shahadat’ (law of evidence), he added. He asked that what was the need for a trial if the evidence was to be believed? He observed that according to the Ordinance, the testimony of a military officer would be sufficient to convict an accused. He said that in such situations even those who were acquitted by the courts, should be kept in detention centers. If this was the law then why was the trial required? he asked.

Justice Qazi Faez Isa asked that did the detainees have the right to defence?  The Attorney General replied that there was a right to defence in the rules. He said that the law was made in view of the judicial decisions. He said the law allowed the high court to review the military’s actions.

Justice Umar Ata Bandial said that apparently detainees did not have the right to defend and cross-examination. The Chief Justice said a terrorist incident happened in the United States in 2016 and an American judge told the story about two and a half thousand years ago. According to the proverb, rules did not apply during the war, he added.  Justice Umar Ata Bandial said that the Geneva Convention was also applied to enemy prisoners during war.

The Chief Justice asked that whether he wanted to state that everything was fair in love and war. The Attorney General said the issue of war crimes was quite different. Justice Qazi Faez Isa asked whether such laws were made in the Holy Prophet (PBUH) time.

The Chief Justice said that Islam also provided a lot of protection to prisoners.

The Attorney General said those internment centres were established for mental recovery of the detainees.

Justice Qazi Faez Isa asked that how could the rules continue after the abolition of Article 247.

The 2011 laws were not protected after 25th Constitutional Amendment, he said.