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The Islamabad High Court (IHC) on Friday ruled that the federal capital’s deputy commissioner, who also acts as the district magistrate, does not have the authority to issue detention orders under Section 3 of the Maintenance of Public Order (MPO) Ordinance, 1960.
The ordinance provides the government with vast powers of detention and has been used by authorities to round up and detain PTI leaders following the May 9 riots.
Section 3 of MPO states: “The government, if satisfied that with a view to preventing any person from acting in any manner prejudicial to public safety or the maintenance of public order, it is necessary to do, may, by an order in writing, direct the arrest and detention in such custody […] and [the] government, if satisfied that for the aforesaid reasons, it is necessary so to do, may extend from time to time the period of such detention, for a period not exceeding six months at a time.”
Justice Babar Sattar presided over the hearing today on petitions filed by PTI leaders Sheharyar Afridi and Shandana Gulzar and read out his reserved verdict.
The PTI leaders were held by the police in connection with the May 9 violence, with Afridi first arrested on May 16 and Gulzar taken into custody on August 9.
The development comes after IHC suspended the MPO order against Shandana Gulzar and Shehryar Afridi and reserved the order in November, subsequently telling the deputy commissioner to not issue any detention orders under the MPO.
In September, IHC stripped Islamabad’s district magistrate of his powers to detain suspects under the MPO and indicted Deputy Commissioner (DC) Irfan Nawaz Memon, Senior Superintendent of Police (SSP) operations Jamil Zafar, Superintendent of Police (SP) Farooq Buttar and Margalla Station House Officer (SHO) Nasir Manzoor.
On August 16, the IHC allowed Afridi and Gulzar to be released and decided to indict the DC and SSP for contempt after deeming their responses to the court as “unsatisfactory”.
Today, the court, said: “Only the federal government should have the authority on [issuing] 3 MPO.”
Later in a detailed 83-page judgment, a copy of which is available with Dawn.com, Justice Sattar expressed concern that the arrest of an individual on the suspicion that they might act prejudicial in future to safety or public order would allow the state to apprehend an individual on the suspicion of a thought crime not linked to an action that transpired and would therefore not be permitted by the Constitution.
The judgment explained that the federal government exercised exclusive executive authority under the Constitution concerning the federal and provincial laws applicable to the Islamabad Capital Territory (ICT).
The judgment also cited the population census of 2023 and said approximately 2.364 million citizens live in ICT.
“Article 1(2)(b) of the Constitution identifies ICT as the Federal Capital that doesn’t form part of any province. But the state claims that pursuant to the Presidential Order (PO) 18 of 1980 — enacted by General Ziaul Haq, who abrogated the Constitution after imposing martial law in 1977, and usurped the authority of the state and arrogated it to himself — read together with PO No. 2 of 1987 and PO No. 2 of 1990, the chief commissioner Islamabad — a civil servant serving in Basic Scale-20 — is one-man provincial government for ICT and its denizens.
“This one-man is the repository of the sum total of all powers, functions and duties of the provincial government under all provincial laws applicable to ICT,” the judgment regretted.
Thus, the judgement declared that PO No. 18 of 1980, PO No. 2 of 1987, PO No. 2 of 1990 and the notifications issued under such orders declaring the Islamabad administrator or chief commissioner to be the provincial government for purposes of the ICT were ultra vires of the Constitution and therefore void.
The judgment also explained that Article 99 of the Constitution created a mandatory obligation for the federal government to frame rules for the allocation of its business and such business of the federal government included the power, duties and functions to be discharged in its capacity as the provincial government.
The high court directed the federal government to frame rules or include such rules within the Rules of Business 1973 for the allocation and discharge of functions to be performed in relation to provincial laws applicable to ICT, within a period of three months.
The judgment explained that its declaration that the federal government is also the provincial government for ICT and the chief commissioner is not the provincial government for ICT “will apply prospectively and will affect past and closed transaction”.
The judgment was clear when it explained that notwithstanding the time frame provided for framing appropriate Rules of Business for purposes of ICT, “any decision ought to be taken by the provincial government under any law for the time in force in ICT can only be taken by the federal cabinet.”
The court also held that the detention orders under challenge were “coram non judice, without jurisdiction” and therefore “set aside for being of no legal effect”.
Thus, the verdict said May 10, 1992 notification of the chief commissioner delegating authority of the provincial government under section 3(1) of MPO to the ICT district magistrate in exercise of power under section 26 of MPO was also declared to be coram non judice and without jurisdiction.
It added that such delegation could only be made by the federal government in its capacity as the provincial government for ICT, subject to the law laid down by the Supreme Court in the 2023 Pakistan Electronic Media Regulatory Authority v. Pakistan Broadcaster’s Association, in which it was held that no unfettered, unstructured and unbridled state authority could be vested in any one individual.
“When delegation in exercise of power under section 26 of MPO is made to the district magistrate, such delegation is limited to exercise of ministerial authority under section 3(1) of MPO to issue arrest and detention orders,” the judgment said.
“The legislature, pursuant to section 26 of MPO, has not empowered the provincial government to delegate its authority under 3(4) of MPO to determine whether a reference made under section 3(2) to order the arrest or detention of an individual in exercise of authority under section 3(1) is to be accepted or rejected,” the verdict explained.
“The decision with regard to acceptance or rejection of a reference seeking the order of preventive detention is subject to satisfaction of the provincial government, which discretionary authority to be exercised by the government as collegium cannot be delegated to one individual.”
Activist and lawyer Jibran Nasir welcomed the verdict, saying it demonstrated judges “showing the will to fight back against state transgressions like today’s order of IHC.”
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