ISLAMABAD: The Federal Constitutional Court (FCC) on Wednesday directed Khyber Pakhtunkhwa Chief Minister Sohail Afridi to respond within 10 days to a petition seeking to prevent the mobilisation or activation of a “release force” for jailed PTI founder Imran Khan.
Headed by FCC Chief Justice Aminuddin Khan, a three-judge bench also issued notices to respondents in the petition, namely the KP government, the PTI, the federal government and the Election Commission of Pakistan (ECP).
The proposed force was announced by CM Afridi in February after a days-long protest to secure a meeting with Imran failed to budge the government. It aims to continue the party’s struggle for the release of its founder, who has been imprisoned in Rawalpindi’s Adiala jail since Aug 5, 2023.
In the petition filed before the FCC, Advocate Ali Nawaz Kharal has contended that he was filing the plea in the public interest and seeking the court’s intervention to prevent the formation or mobilisation of any private force or militia in violation of the Constitution. The petition had also sought to stay the formation of such a force.
During the hearing on Wednesday, Justice Ali Baqar Najafi inquired whether the provincial cabinet had granted permission for the formation of such a force. The counsel, however, responded in the negative.
The court asked the federal government to ensure that the law was not violated and that the public at large was protected.
When announced, the proposal had divided the PTI and caused concerns among the party leaders, who questioned the rationale for the force. They questioned whether the PTI was going to form another ‘Al-Zulfikar’, a left-wing militant outfit formed by the sons of former PM Zulfikar Ali Bhutto in 1979.
A party leader, wishing not to be named, said that the announcement had shocked many.
However, several other party leaders believe the protest should be launched immediately rather than “wasting time” on membership drives, after PTI leader Salman Akram Raja announced that they would start the registration for the movement after Eidul Fitr.
Petition
The petition argued that the statement by a sitting chief minister to form such a force was not only shocking but in violation of the oaths he had taken as an elected member of a provincial assembly and as the provincial chief executive.
In the past, the petition said, such terminologies of a release force were also used by different political parties, which led to the emergence or perception of militant wings associated with political parties.
Though such a force had not yet been formally constituted or operationalised by the PTI, the public announcement regarding its intended formation, organisational structure and mobilisation generated, amongst the general public, grave concern, an atmosphere of fear, uncertainty, unrest, and panic, the petition said.
The petition also noted the constitutional prohibition against private militias under Article 256 of the Constitution, as well as the Private Militias (Abolition and Prohibition) Act, 1974, thereby necessitating the intervention of the FCC in anticipation of any such unlawful formation and acts associated thereto, the petition contended.
The petition argued that Article 5 of the Constitution imposed a fundamental duty of loyalty to the State and obedience to the Constitution and law upon every citizen, including those holding public office, and any action contrary thereto is ultra vires the Constitution.
Article 17 of the Constitution guaranteed freedom of association but expressly subjects this right to “reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality,” the petition reminded, adding that the formation of a private force or militia clearly falls outside permissible association.
Likewise, Article 256 of the Constitution explicitly prohibited private organisations capable of functioning as military or paramilitary forces, declaring any such organisation illegal.
Thus, the statements made by chief minister KP indicate an intention to establish a force capable of exercising organised physical power, which constituted a clear violation of Article 256 of the Constitution, the petition argued, adding the Private Military Organizations (Abolition and Prohibition) Act, 1973 empowered the federal government to prohibit such private militias and prescribes penal consequences for the formation, organisation, training, equipping, or membership in such organisations.
The mobilisation and operationalisation of such a force raises serious questions as to how the chief minister intends to “secure the release” of Imran, the petition said.
