On Thursday 5 November, the Federal Constitutional Court stopped the Peshawar High Court from hearing cases about arrests under Section 3 of the Maintenance of Public Order in Khyber Pakhtunkhwa, two days after the high court sent the detention petitions of the province’s missing leadership to a larger bench. Whether the emergency itself was lawful now has a date: 10 November.
What the Constitutional Court decided
A two-member bench headed by Chief Justice Aminuddin Khan restrained the Peshawar High Court from hearing 3-MPO arrest cases in the province. The high court had earlier restrained the authorities from making such arrests and had ordered the release of 28 Pakistan Tehreek-e-Insaf workers detained in various districts. The provincial government challenged several of those orders.
The advocate general argued the high court could not interfere where the military operated under Article 245, nor exercise its Article 199 jurisdiction there. Justice Aamer Farooq asked whether the high court would not hear the Article 199 cases that come before it daily. The court suspended the challenged orders, issued notices, and adjourned indefinitely.
The other court moved first
Two days earlier, on 3 November, a division bench of Justice Syed Arshad Ali and Justice Muhammad Faheem Wali referred the detention petitions to the chief justice for a larger bench, after the government and police failed to file replies under the court’s 20 October directives despite ten days. The advocate general himself also requested a larger bench.
The petitions cover former chief minister Sohail Afridi, assembly Speaker Babar Saleem Swati, MNAs Junaid Akbar and Dr Amjid Ali, and several other PTI leaders. Afridi has not been seen in public since 11 October. His brother Muhammad Aamir filed a petition on 13 October, alleging armed men seized Afridi from the Chief Minister’s House that night, and asked the court to order his recovery and preserve CCTV records. The court has sought replies by 7 November. The story began with the three custody questions the Peshawar High Court put to officials on 3 November, and the larger bench referral followed when those answers did not arrive.
Twenty-five days of emergency, in five dates
On 11 October, President Asif Ali Zardari approved the cabinet’s decision and proclaimed an emergency under Article 232 and governor’s rule under Article 234. The chief minister and his cabinet ceased to hold office at once, an 11-member advisory council was formed, and the army was deployed in aid of civil power under Article 245. Parliament endorsed the move on 14 October, and a joint sitting approved both proclamations on 15 October.
On 29 October, an anti-terrorism court issued arrest warrants for Afridi and four other PTI leaders in the Radio Pakistan attack case. On 4 November, 24 days after the proclamation, the cabinet transferred the chief minister’s delegated powers to the governor. The emergency covers 12 districts, largely the former tribal areas and southern districts including Bannu, Dera Ismail Khan, Tank and Lakki Marwat; Hazara and Mardan are exempt. The intelligence operations widened across Khyber Pakhtunkhwa the same week the cabinet met, and PICSS counted 143 attacks in October, down from 226 in September, even as kidnappings hit a 12-month high.
The question both courts are circling
Both courts are circling one question: can a high court protect a detainee where the army is operating under Article 245? The Peshawar High Court says yes, through Article 199, the writ jurisdiction it exercises every day. The Khyber Pakhtunkhwa government says no, because the military’s presence changes the court’s reach. The Federal Constitutional Court, a new institution created under the 27th Amendment, has sided with the government for now, by suspending the high court’s orders rather than deciding the point.
The same government that challenged the high court’s orders is the respondent that failed to file replies for ten days, which pushed the petitions to a larger bench. PTI chairman Barrister Gohar Ali Khan filed a petition on 14 October challenging the emergency and governor’s rule itself.
What 10 November decides
Three tests sit on the calendar. First, whether the larger bench is constituted before 10 November and orders the detained leaders to be produced, the only step that would settle where Afridi and Swati are. Second, whether the Constitutional Court takes up the 48 petitions again or leaves the high court restrained indefinitely, deciding whether 3-MPO detainees have any court to turn to. Third, the 10 November hearing itself, flagged as the day the court examines whether the emergency met the constitutional threshold at all.
Until then, the province has a governor but no chief minister, an assembly that cannot legislate, a high court that cannot hear detention cases, and a constitutional court adjourned indefinitely. For more on the province and the country, see more national news from Pakistan.
