ISLAMABAD: The Islamabad High Court (IHC) is examining a question raised by a petitioner challenging the judicial powers of the chief commissioner of Islamabad.

While both the judiciary and executive are separate pillars of the state, during the martial law regimes the powers to administer justice were given to executives. In the recent past, following the Army Public School (APS) tragedy, military courts were, through a constitutional amendment, empowered to try civilians. However, the legislation lapsed due to a sunset clause.

The IHC is examining the issue raised in a petition that pointed out that the Capital Development Authority (CDA) was still exercising judicial powers.

The petition cited an amendment to General Clauses Act 1897 made on July 1, 1979, through an ordinance by the then president of Pakistan. The new clause pertained to Islamabad.

Petition says under Constitution, the official not vested with powers of provincial govt

As a consequence, in the context of Islamabad, the federal government is understood to be performing the functions of the provincial government, as being a federating unit the capital has the special status as provided in Article 1 of the Constitution.

“Subsequent to the amendment to the General Clauses Act, the martial law administration primarily operated on the basis of presidential orders. To that end, on December 31, 1980, the president issued the ‘Islamabad Capital Territory (Administration) Order’ for the enablement of the delegation of administrative powers vesting in the federation to an administrator to be appointed by him.”

Through a presidential order in 1990, the term administrator was renamed as the chief commissioner who could exercise only those powers in the federal capital which could be delegated to him in writing under the law from time to time.

The petition said Article 175 of the Constitution provided that the judiciary shall be progressively separated from the executive initially within a period of three years which was subsequently extended from time to time.

The Supreme Court in the case of Sharaf Faridi finally settled this matter. Its judgment approved the separation of executive magistrates from judicial magistrates on the model of the Law Reforms Ordinance 1972. Thereafter, through the promulgation of the Code of Criminal Procedure (Amendment) Ordinance (XXXVII of 2001) the executive magistracy was abolished. This was protected by the 17th amendment.

The petition said the chief commissioner on August 11, 2020, issued a notification regarding entrustment of powers of the executive magistrate to the senior special magistrate CDA and empowered him to assume jurisdiction in the matters related to the CDA ordinance, Municipal Administration Ordinance 1960, West Pakistan Pure Food Ordinance 1960, Sections 268, 269, 270 and 273 of Pakistan Penal Code 1960 relating to offences affecting the public health safety, convenience, decency and morals, Islamabad (Preservation of Landscape) Ordinance 1956, regulations issued by the CDA under Section 51 of the Capital Development Authority Ordinance 1960, Civil Defence Act, Forest Act 1927, Islamabad Wildlife Protection, Preservation, Conservation and Management Ordinance 1979.

According to the petition, the magistrate is “purportedly in exercise of powers wrongly conferred upon him under the impugned notification.”

It added that a magistrate exercises judicial powers in respect of particular cases or to a particular class or particular classes of cases, or in regard to cases generally in any local area.

Such conferment could only be made by the provincial government on the recommendations of the high court, it stated, adding the notification provides for conferment of powers upon the officer under section 6 of the Code of Criminal Procedure 1898 for which the approval of the high court was a prerequisite.

The petition said the chief commissioner was not vested with powers of the provincial government under the Constitution and respective laws on the subject, adding only the federal government could make such an appointment and that too as prescribed in the Supreme Court judgment passed in the Mustafa Impex case.

The apex court in this judgment defined the federal government and declared that even the prime minister cannot take a decision unless he was empowered by the federal cabinet.

Published in Dawn, December 12th, 2021