ISLAMABAD: The leaders of the opposition in both Houses of Parliament on Saturday approached the Federal Constitutional Court (FCC), seeking the immediate release of Sohail Afridi, the non-functional Khyber Pakhtunkhwa chief minister, along with eight other elected members of the provincial assembly and six members of the National Assembly.
Afridi has not been seen since the Centre imposed governor’s rule and emergency in KP on Oct 11. The very next day, a federal minister confirmed that he and some of his cabinet members were in preventive custody.
While the government has transferred powers to KP Governor Faisal Karim Kundi, the PTI has asserted that Afridi “remains and shall continue” to serve as the KP chief minister with the “confidence and support” of party founder and ex-premier Imran Khan.
On Saturday, National Assembly Opposition Leader Mehmood Khan Achakzai and Senate Opposition Leader Raja Nasir Abbas jointly filed a petition before the FCC.
The petition sought the enforcement of fundamental rights and constitutional protections against the alleged unlawful arrest, detention and confinement of Afridi, KP Assembly Speaker Babar Saleem Swati, Fazal Shakoor Khan, Dr Amjad Ali, Sultan Room, Yameen Khan, Abdus Salam Afridi, Muhammad Azam Khan and Ikram Ghazi, as well as six members of the National Assembly — Junaid Akbar Khan, Dr Amjad Ali Khan, Iqbal Khan Afridi, Fazal Mohammad Khan, Zubair Wazir and Maulana Naseem Ali Shah.
The petition said it raised substantial questions of public importance concerning the supremacy of the Constitution, the sanctity of the democratic mandate, constitutional limits on executive authority under Articles 232, 234 and 245, and the protection of fundamental rights guaranteed under Articles 4, 9, 10, 14, 17 and 19-A of the Constitution.
The petition also sought disclosure of the places of detention, production of the alleged detainees before the FCC, a declaration that their custody was unlawful and without lawful authority, and appropriate constitutional relief in the interest of justice and the rule of law.
The federal secretaries of interior and defence, the KP chief secretary, the secretary of the KP Home and Tribal Affairs Department, the provincial inspector general of police, the Peshawar capital city police officer, the Peshawar deputy commissioner and the Federal Investigation Agency (FIA) director general were named as respondents.
The petition raised the question of whether the constitutional mandate conferred upon members of the National Assembly and provincial assemblies through the electoral process carried with it enforceable constitutional protection against arbitrary state action designed to obstruct, frustrate or undermine their participation in representative governance.
“Whether the arrest, intimidation, coercive restraint or other unlawful interference with elected legislators, in circumstances affecting their ability to represent their respective constituencies, amounts to an indirect disenfranchisement of the electorate and an impairment of the constitutional scheme of representative democracy?” it stated.
The petition questioned the selective or collective targeting of elected representatives on account of their political affiliation, parliamentary position or participation in opposition politics and contended that these constitute discriminatory treatment, political victimisation and an abuse of public authority contrary to Articles 4, 14, 17 and 25 of the Constitution.
It also prayed that the FCC declare that the Constitution was the supreme law of the land and that no proclamation of emergency, assumption of provincial executive authority, deployment of the armed forces or other extraordinary governmental measure could confer upon any state authority unfettered power to disregard fundamental rights, constitutional safeguards or the democratic mandate of the people.
The petition further requested the court to declare that the “liberty, dignity, political association and representative functions of elected members were constitutionally protected, and that any arrest, detention, confinement, restriction of movement or coercive action against them was unlawful, unconstitutional and without legal effect”.
“Moreover, the electoral mandate of the affected elected representatives cannot be defeated, neutralised or rendered ineffective through arbitrary executive action, political victimisation or the misuse of state machinery.
“The people of KP are constitutionally entitled to effective representation through their duly elected representatives.”
It also requested the FCC to order the production before the court of the members in custody. It further pleaded that Articles 232, 234 and 245 of the Constitution must be exercised strictly within their respective constitutional parameters and cannot be invoked to justify the suppression of political dissent, disabling of elected representatives, interference with parliamentary functions or circumvention of the fundamental rights guaranteed under the Constitution.
The petition argued that the exercise of executive and administrative authority under governor’s rule does not suspend the constitutional obligations of the state, displace the supremacy of fundamental rights or place the actions of public functionaries beyond the scrutiny of the FCC.
On Thursday, PTI lawmaker Shandana Gulzar also approached the FCC, seeking the immediate release of Afrid, the provincial assembly speaker and other party workers.
The petition requested the FCC to order the respondents to “immediately disclose before the court their whereabouts, the identity of the authority exercising custody, the legal instrument and statutory provisions invoked as well as the grounds of detention and the date and circumstances of their taking into custody”.
It further urged the court to order the production of the PTI’s provincial leadership in person so that their present condition, liberty and legal status be ascertained and the “legality of any such restraint upon their liberty be examined judicially”.
Separately, Abbas and Balochistan National Party Chairman Sardar Akhtar Jan Mengal also approached the FCC on Saturday, seeking their impleadment in the case concerning the restraint imposed on the Peshawar High Court (PHC) from hearing petitions relating to the detention of PTI activists, which is likely to take up on Monday (Nov 16).
The PHC on Oct 31 granted interim bail to scores of PTI activists detained under the Maintenance of Public Order Ordinance following the imposition of emergency. However, the FCC on Nov 5 restrained the high court from hearing cases concerning the arrests of scores of PTI activists detained under the ordinance.
Through a miscellaneous application, the applicants through their counsel Sardar Latif Khosa, pleaded that they were the necessary and proper party to the proceedings since the FCC’s Nov 5 order of restrained the high court rom hearing cases concerning arrest of scores of PTI activists detained under Section 3 of the Pakistan Maintenance of Public Order Ordinance following the imposition of governor’s rule in KP.
The application said the FCC’s Nov 5 order directly affected their constitutional rights. It contended that if the applicants were not impleaded, they would suffer irreparable loss and would be condemned unheard, in violation of Article 10-A of the Constitution.
“That the applicants being proper and necessary party to the proceedings and matter in hand seeks impleadment to assist the FCC and also to seek clarification/modification/recall of the Nov 5, order to the extent that it suspends petitions challenging the proclamation/governor’s rule itself, and to plead that Article 245 cannot be used to oust jurisdiction of the high court to examine whether the preconditions for invoking Article 245 itself existed,” the application said.
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