ISLAMABAD: The Federal Constitutional Court (FCC) has suspended all proceedings that the Peshawar High Court has held under Article 199 of the Constitution on or after October 12, including the cases over the arrests of Sohail Afridi and others under the Maintenance of Public Order law, known as 3 MPO.
The FCC ruled that the federal government has called in the armed forces under Article 245 to assist the civil administration across Khyber Pakhtunkhwa, so the high court’s Article 199 actions stay suspended.
The Peshawar High Court had barred the authorities from making arrests under 3 MPO. The Khyber Pakhtunkhwa government challenged those interim orders before the FCC. The petitions over the arrests of Sohail Afridi and others remain pending before the high court.
A two-member bench of Chief Justice Aminuddin Khan and Justice Aamer Farooq heard the case a day earlier. The Khyber Pakhtunkhwa advocate general told the bench that a high court cannot directly hear cases under Article 199 in an area where the army is deployed under Article 245. Justice Aamer Farooq asked whether the high court would stop hearing the many Article 199 petitions that reach it every day.
The advocate general replied that rent disputes and similar cases reach the high court only after they pass through the competent forums. Shah Faisal, a former additional advocate general and a lawyer for the PTI, objected that the court should hear his side before issuing a stay. He argued that the provincial government’s three objections could not be upheld.
What the written order says
The court’s written order records that the President imposed an emergency in Khyber Pakhtunkhwa on October 11, after which the governor took over the province’s administrative control. The federal government then allowed the army to deploy under Article 245 to assist the civil administration. Petitioners challenged the 3 MPO detention orders in the Peshawar High Court. The high court relied on its judgment in Aftab Alam versus the Khyber Pakhtunkhwa government and released those detainees at the preliminary stage.
The advocate general argued that the high court ignored the clear constitutional command of Article 245 when it heard the petitions after the troops arrived. He said Article 245(3) bars a high court from using its Article 199 powers over any area where the armed forces are acting in aid of the civil administration. He also argued that the high court rendered the MPO, an enforceable law, ineffective and meaningless, although the law exists to allow preventive detention for a clear purpose, the maintenance of public order. He added that the high court granted final relief at an interim stage, which the law does not allow.
What the FCC observed
The FCC held that the points raised before it need serious deliberation and that the case needs careful scrutiny. The court said it must examine whether the Peshawar High Court’s position on Article 245 is constitutionally correct.
The court observed that, on first look, Article 245(3) is not an ouster clause of the kind found elsewhere in the Constitution. It cited Article 236(2) as an example, where courts have still examined the constitutional validity of declarations issued under Part X of the Constitution despite a bar on their jurisdiction. The court added that Article 245(3) covers a specific situation that is urgent but temporary, so the bar on jurisdiction lasts only while the armed forces perform duties in aid of the civil administration.
The court said these questions, along with the others raised in the proceedings, need careful consideration and an authoritative, final legal interpretation. It issued notices to the attorney general and the other parties.
What happens next?
The FCC ordered that, because the armed forces have been called across the whole of Khyber Pakhtunkhwa under Article 245, the Peshawar High Court’s Article 199 proceedings on or after October 12 stay suspended under Article 245(4).
The court directed the Khyber Pakhtunkhwa advocate general to submit, within seven days, details of any areas where the armed forces’ presence or duties in aid of the civil administration are no longer necessary. The FCC will review that report and then consider whether to modify its order under Article 245(4). The court adjourned the hearing indefinitely.
