VIEW FROM THE COURTROOM: Internment centres of Malakand, tribal districts in limelight.
The issue of an unspecified number of people kept in notified internment centres of Malakand division and merged tribal districts is in the limelight as the Peshawar High Court has taken notice of scores interned there without trial for many years.
A high court bench consisting of Chief Justice Waqar Ahmad Seth and Justice Mussarat Hilali while hearing several writ petitions filed by several internees or their family members on April 10 directed the federal and provincial governments to submit their written responses clarifying the legal status of these internment centres and the regulations under which these were set up.
The bench is eager to know about the legal status of these centres in the wake of merger of erstwhile Fata (Federally Administered Tribal Areas) and Pata (Provincially Administered Tribal Areas) into Khyber Pakhtunkhwa Province through the Constitution (Twenty-Fifth Amendment) Act, 2018. The court will hear the issue again on Apr 23.
Since the passage of the said constitutional amendment, which was published in official gazette on June 5, 2018, questions have been raised over the future of different laws, which have been in vogue in the merged tribal districts and former Pata, especially the Action (in aid of civil power) Regulation 2011 for Fata and Pata under which these internment centres were established.
In a bid to give legal protection to the laws prevalent in former Pata, the Khyber Pakhtunkhwa government enacted the KP Continuation of Laws in the Erstwhile Provincially Administered Tribal Areas Act, 2018, which was assented to by the governor on Jan 4 after its passage by the provincial assembly.
The Act provides that the laws , rules, regulations, rules, notifications and by-laws including Action (in aid of civil power) Regulation, 2011, applicable in the erstwhile Pata shall continue to remain in force until altered, repealed or amended by the competent authority.
Legal experts believe that in light of a Supreme Court judgment delivered on Jan 16, it would be difficult for the federal and KP governments to defend the two regulations for former Fata and Pata.
The Supreme Court's bench headed by the then Chief Justice Mian Saqib Nisar dismissed a civil petition filed by the provincial government against a judgment of the PHC delivered on Oct 30 and had declared the Fata Interim Governance Regulation, 2018, as unconstitutional.
The Supreme Court in its judgment has ruled: 'Whether they be residents of Fata on one hand or of Peshawar or Mardan, etc. on the other, they cannot be discriminated against and any classification between them despite being residents of the same province, with no obvious or reasonably deducible distinction between them, will be arbitrary and against the recognized principles of natural justice and the rule of law.'
'After the 25th Amendment, all the residents of the Province of KPK are similarly placed, there is no rational basis on which the people of Fata can be distinguished from the people of the rest of the province of KPK and thus the application of the Fata Interim Regulation to one part of KPK while the rest of the province enjoys the protection of the provincial laws is absolutely unjustified, grossly discriminatory and in contravention of the fundamental right to equal protection,' the bench had declared.
While hundreds of internees, whose exact number hasn't been made public, continue to be in detention, their cases appear to be far from over.
Their relatives continue to move the high court seeking visitation rights, which are available under the relevant laws but have often been denied to them by the heads of the internment centres.
From time to time, the high court has been issuing directives regarding the functioning of the oversight boards as well as the visitation rights of the internees.
Over a decade ago, hundreds of suspected militants were taken into custody by the security forces in different military operations, especially the one carried out in Swat. Those suspects were kept in detention for many years with the high court questioning the then government about it.
To provide legal cover to those detentions, the then president, Asif Ali Zardari, promulgated the said two regulations on Jun 23, 2011. These regulations were given retrospective effect from Feb 1, 2008.
Subsequently, the provincial home secretary issued a notification on Jul 20, 2011, through which nine detention facilities, where hundreds of suspects had been detained, were notified as internment centres in the province. These centers include sub-jail Paitham (Pak-Austrian Institute of Tourism and Hotel Management), Swat; sub-jail Fiza Gut, Swat; sub-jail at Malakand; district jails Lakki Marwat, Kohat and Timergara (Lower Dir); and Frontier Corps Forts at Drosh (Chitral), Chakdara and Timergara.
In the similar manner, another notification was issued by the additional chief secretary, Fata, on Aug 12 under which around 34 internment centers were notified in former Fata. Through that notification, all Frontier Corps forts and political lockups in the seven tribal agencies (now districts) were declared internment centres.
Under these regulations, the interning authority is empowered to intern a suspect till the continuation of action in aid of the civil power by the armed forces. Furthermore, the governor (in case of Fata) and the provincial government (in case of Pata) shall notify an oversight board for each interment center comprising two civilian and two military officers. The board has to review the case of each person interned with in a period of time, not exceeding one hundred and twenty days, from the issuance of the order of internment, and prepare a report for consideration of the provincial government.
The board has also been empowered to periodically review the conditions of internment Centers and recommend suitable action for consideration of the provincial government and it shall also take notice of any complaint or information in respect of any degrading treatment of any person interned or any torture or any in-dignified treatment meted out to an internee.
An expert dealing with different cases said a positive aspect of setting up internment centres was that scores of 'missing persons' were traced there with their relatives knowing about their whereabouts unlike the past when they were pushed from pillar to trace to learn about family members.
He, however, said the government should decide about the fate of those internees as they couldn't be detained without trial for an indefinite period.