ISLAMABAD: The Sindh government on Monday challenged the Sept 7 Sindh High Court (SHC) verdict in which the provincial government was restrained from appointment, removal, transfer or posting of the inspector general of police (IG) in Sindh against the backdrop of the Allah Dino Khowaja fiasco.

The SHC on a petition by Shehri – Citizens for a Better Environment had ordered A. D. Khowaja to continue as the Sindh IG till the completion of his three-year tenure.

Through senior counsel Farooq H. Naek, the provincial government has pleaded before the Supreme Court that the Sindh government is facing severe hardship in performing its constitutional obligation of maintaining law and order. And unless the present petition is allowed, the public interest will be seriously prejudiced and authority and autonomy of the provincial government will be undermined.

“The legislative bodies cannot be prevented or restrained from performing their constitutional obligations and carrying out their mandate as exclusively conferred on them,” the petition argued. It added that the high court had restrained the provincial government in perpetuity from reducing the term of the IG to less than three years.

Says it is facing ‘severe hardship’ in maintaining law and order

“Such finding is arbitrary as it is not supported by any reasoning whatsoever in the body of the impugned judgement,” the petition contended. It added that restraining the provincial government from altering subordinate legislation issued by itself amounted to a permanent injunction against a legislature from performing its constitutional duty.

By virtue of this permanent injunction, the petition regretted, the high court had not just prevented the incumbent provincial government from making an amendment to the Rules of Business but had also, in perpetuity, bound all future and successive governments ie de facto legislatures of subordinate legislature from making any such alteration.

It is beyond comprehension how the high court reached a conclusion that a bare minimum tenure of three years was to be guaranteed as an inviolable obligation and the same could never be reduced, the petition wondered.

“The determination of a three-year tenure of IG to be immutable by the province is thus tantamount to writing into the Constitution, which is blatantly illegal, unlawful and outside the jurisdiction of the high court.”

The entrenchment of a three-year tenure of the IG was never contemplated by the Constitution, the federal or provincial legislature. As such, the entrenchment was illegal, unconstitutional and blatantly without jurisdiction, the petition said.

The high court had committed a grave error of law in failing to appreciate that the determination of a tenure was purely a matter of policy and could not be interfered with by court being non-justiciable. “And to this extent the law laid down in the 2013 Anita Turab case does not relate to change of the tenure by an amendment to the law or the rules itself but only seeks strict adherence of that tenure, which is prescribed in the law,” the petition said.

It regretted that the high court itself had “irrationally fixed an inviolable term” of three years for the tenure of the IG, which was not sustainable, particularly in the absence of constitutional protection of such a tenure to such a post.

The requirement to appoint a PSP officer to the post of IG did not emanate from either the Police Act 1861 or the Civil Servants Act, 1973 or any law made by the Sindh province, the petition argued. It added that it was the federal government and not the provincial government which exclusively exercised control on appointment or removal of the IG.

Published in Dawn, October 31st, 2017