The over five-decade old law of West Pakistan Maintenance of Public Order (MPO) Ordinance 1960, dealing with preventive detentions and controlling public order, has assumed importance for the deputy commissioners (previously called political agents) in the merged tribal districts as the unbridled powers under the erstwhile colonial law of Frontier Crimes Regulation (FCR) are no longer available to them.

Recently, the deputy commissioner of Bajaur tribal district invoked section 3 of the MPO against Jalaluddin Khan, who is son of former MNA Shahabuddin Khan, and ordered his detention at Haripur central prison for one month till further orders.

The deputy commissioner issued the order on April 24 wherein he had levelled several allegations against the detainee, Jalaluddin, claiming that the family presented themselves as Khans of the area and had created a parallel government over the people and its tenants and was resisting their access to government so that they should remain under their clout.

The DC claims that they had turned Salarzai into a ‘no-go’ area. He added that Jalaluddin had created turbulence in a Kuli Kacheri at Pasht in continuation of old practice of blocking public access to government and thus deprived all the poor people of the opportunity of being heard.

The family of Jalaluddin, which enjoys political influence in the area, condemned the act of the deputy commissioner and termed it a case of political victimisation.

The decision of the deputy commissioner has now been challenged in the Peshawar High Court by the detainee under Article 199 of the Constitution of Pakistan. The petition is filed by senior advocate Abdul Lateef Afridi, stating that the impugned order is a remnant of dictatorship as it was enforced during the military regime of Field Marshal General Ayub Khan in a bid to curb political activities and harass political opponents, which is in violation of fundamental rights. The petitioner has requested the court to strike down the impugned order as unlawful and the detainee be released forthwith.

Previously, in the erstwhile Fata under the FCR the PAs were having massive powers under the clauses dealing with “collective” and “territorial” responsibilities of a tribe, group of people or individuals.

In May 2018, the FCR was repealed through the Fata Interim Governance Regulation (FIGR), but still some provisions were there empowering the political agents (now DCs) to take action against a person or group of persons acting in hostile, subversive or offensive manner towards the State or to any person residing within the settled area of Pakistan.

The PA was empowered to order arrest of any such person or group of persons or debar such person or group of persons from access into the settled area of Pakistan by public proclamation.

The president of Pakistan on May 31, 2018, gave assent to the Constitution (Twenty-Fifth Amendment) Act, 2018, paving the way for the merger of Fata with Khyber Pakhtunkhwa. After this merger the laws in vogue in Khyber Pakhtunkhwa are also applicable in the merged tribal districts, including the MPO.

In the absence of those powers under FCR and FIGR, the administrative officers have now to rely on MPO while dealing with issues of preventive detention and public order. Soon after the merger of tribal districts, the deputy commissioner of North Waziristan had issued an order under section 5 of the MPO against a native of the area, Mohsin Dawar, who later became an MNA. In an order issued on June 7, the DC had ordered the expulsion of Mr Dawar from the limits of North Waziristan agency for a period of three months.

However, the Peshawar High Court on June 14 declared the order of the DC as illegal and set aside the impugned order.

The MPO, which was a creation of a military government, has an interesting history. It was promulgated by the governor of then West Pakistan on Dec 2, 1960. Since then this law has regularly been used and misused by successive governments.

This law has been considered a solution to all problems and cases continued to reach the superior courts, including the Peshawar High Court, against its misuse. Since its creation, this law has been used for a variety of reasons, including detention of hoarders and profiteers, drug pushers, gamblers, currency dealers and small-time offenders besides victimisation of political rivals. Even protesting young doctors and parents declining to administer polio drops to their children have been detained under this law.

Initially, under Article 199 (1) of the 1973 Constitution the high court had the jurisdiction that on the application of any person it could make an order directing that a person in custody within the territorial jurisdiction of the court be brought before it so that the court may satisfy itself that he was not being held in custody without lawful authority or in an unlawful manner.

During the government of Zulfikar Ali Bhutto, as several of his political opponents were detained under the MPO, the said article was amended through the Constitution (Fourth) Amendment Act in Nov 1975 and it was mentioned that a high court shall not make an order for the grant of bail to a person detained under any law providing for preventive detention.

When the high courts continued entertaining cases of detention under the preventive detentions laws, Mr Bhutto’s government passed the Constitution (Fifth Amendment) Act, in Sept 1976 whereby the powers of courts were further reduced while dealing with cases of preventive detention.

The bar on courts to order for the release on bail of any person detained under any law providing for preventive detention was retained in the said amendment. Subsequently, during military government of General Ziaul Haq the said provisions were omitted from the Constitution.

During the military government of General Pervez Musharraf the nomenclature of the office of DC was changed to district coordination officer (DCO) having no powers under the MPO and the home secretary continued to exercise powers under the MPO. Later, then provincial government in 2008 delegated certain powers to then DCOs across the province under the MPO.

Subsequently, the nomenclature of the DCO was changed again to deputy commissioner during the coalition provincial government of ANP and PPP (from 2008 to 2013).

From time to time, the superior courts have ruled that while invoking the provisions of MPO the concerned officer has to apply his independent mind instead of issuing detention order on flimsy grounds.

Legal experts believe that now when the superior courts can exercise jurisdiction in the merged districts, these courts should ensure the enforcement of fundamental rights. They say that the superior courts as well as the administration should ensure that no law, including MPO, should be misused.

Published in Dawn, April 29th, 2019