FCC Stops Peshawar High Court From Hearing 3-MPO Arrest Cases in KP

Photo: The Express Tribune (File)

The Federal Constitutional Court stepped into the Khyber Pakhtunkhwa detention row on Thursday, telling the Peshawar High Court to stop hearing cases about arrests under Section 3 of the Maintenance of Public Order Ordinance. The order freezes the high court's earlier directions, which had barred such arrests and freed 28 PTI workers, until the constitutional court decides the matter.

A two-member bench headed by Chief Justice Aminuddin Khan heard the case, with Justice Aamer Farooq sitting alongside him. The Khyber Pakhtunkhwa government had challenged several orders of the Peshawar High Court at the constitutional court, after the high court restrained the authorities from making arrests under 3-MPO and ordered the release of 28 Pakistan Tehreek-e-Insaf workers held in different districts of the province.

The provincial advocate general argued that the high court could not interfere in areas where the military was conducting operations under Article 245 of the Constitution, and that it could not use its jurisdiction under Article 199 in such matters. Justice Farooq pushed back on that point, noting that the high court received several cases under Article 199 every day. "Would the high court not hear cases that come before it on a daily basis?" he asked.

Former additional advocate general Shah Faisal Ilyas, who appeared for the parties, asked the court to hear them before passing a stay order, and said the provincial government's three objections could not be sustained. Chief Justice Khan replied that the parties could file their objections after reading the court's order.

The court then suspended the challenged orders passed by different benches of the Peshawar High Court, issued notices to all the parties, and adjourned further proceedings indefinitely. The date of the next hearing will be announced later.

Section 3 of the Maintenance of Public Order Ordinance is the law that lets the authorities detain a person as a preventive step, to keep public order or head off a threat to public peace. It is the provision at the heart of the detention cases that have piled up in Khyber Pakhtunkhwa since governor's rule and an emergency were imposed in the province on 11 October, taking executive power from the PTI-led provincial government and handing it to Governor Faisal Karim Kundi.

The Peshawar High Court had also sought replies from the governor and the speaker about the governor's rule itself. A separate petition, filed by the brother of Sohail Afridi, the non-functional chief minister, seeking his immediate release is still pending before the high court. On Tuesday the high court said a larger bench should hear petitions about the whereabouts of Afridi, Assembly Speaker Babar Saleem Swati and MNA Junaid Akbar. The provincial government has said the three are in "protective custody", and the provincial assembly has passed an immunity bill covering the speaker and members.

For now, the practical effect is plain. With the high court's restraining orders suspended, the Khyber Pakhtunkhwa administration can again make preventive arrests under 3-MPO while the constitutional court case runs, and the workers picked up earlier stay in limbo until the court fixes a next date. It is the latest turn in a tussle that has already seen the opposition announce an all-parties conference this month in its first joint response to the governor's rule, and the federal cabinet move the chief minister's powers to the governor in the same sitting that ratified the Kuwait defence pact. The courts, meanwhile, keep trading dates, as the Islamabad High Court has fixed November 10 for the appeals of Imran Khan and Bushra Bibi in the £190m case.

• Orders suspended: Peshawar High Court directions barring 3-MPO arrests and freeing 28 PTI workers
• Bench: Chief Justice Aminuddin Khan and Justice Aamer Farooq
• Next step: notices issued to all parties, proceedings adjourned indefinitely
• Background: governor's rule and emergency in Khyber Pakhtunkhwa since 11 October

Sources

• Geo News: FCC bars PHC from hearing cases over 3-MPO arrests in KP
• The Express Tribune: FCC bars PHC from hearing MPO detention cases until further orders
• Aaj English: FCC bars PHC from hearing MPO arrest petitions
• Business Recorder: PHC barred from hearing petitions against 3-MPO arrests

What happens next: the constitutional court will fix a date for the next hearing, and until then the Peshawar High Court cannot touch the 3-MPO cases.

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