PESHAWAR: The Peshawar High Court on Wednesday issued notices to the attorney general for Pakistan and Khyber Pakhtunkhwa advocate general asking them to respond to a petition requesting it to declare the Maintenance of Public Order (MPO) Ordinance, 1960, unconstitutional.

A bench consisting of Chief Justice Musarrat Hilali and Justice Wiqar Ahmad held a preliminary hearing into a petition filed by lawyer Naeem Ahmad Khattak, who said the MPO Ordinance was in conflict with several provisions of the Constitution.

It observed that as vires of the law were challenged, it was mandatory under the Code of Civil Procedure to put the attorney general and the advocate general on notice to get their response on the matter.

Respondents in the petition include the Khyber Pakhtunkhwa government through its chief secretary and the provincial department of the law, parliamentary affairs and human rights through its secretary.

Advocate Ali Azim Afridi appeared for the petitioner and contended that the grievance of his client revolved around the MPO Ordinance, which was applicable across Khyber Pakhtunkhwa.

He argued that the ordinance in question vested the executive officers with vast powers and unguided discretion, the use of which not only affected the fundamentally guaranteed rights but also countered due process and right to fair trial.

The lawyer contended that the ordinance provided the domain reserved for the judiciary with the executive, an act against Article 175(3) of the Constitution, which guaranteed the separation of the judiciary from the executive.

He contended that under the impugned ordinance the executive officers had been exercising multiple powers and acted as complainant, prosecutor, judge and executioner.

Mr Afridi said that the impugned law, without checks and balances, provided scores of powers to the executive including ordering arrests, detentions, prohibition of entry in particular areas, securing reports of public meetings, issuance of search warrants, general power of search, giving effect to orders, and trial of offences.

He argued that the Constitution provided for access to justice, which was both a right in itself and the means of protecting and restoring other basic human rights.

The lawyer said the Constitution protected fundamental rights by allowing public citizenry to make recourse to the constitutional courts in case those rights were put at stake resulting from introduction of any law or any custom.

He added that the Constitution allowed constitutional courts, including the high court, to declare laws inconsistent with or in derogation of fundamental rights to be void.

Mr Afridi argued that the petitioner being a citizen of Pakistan and as practicing lawyer, expected exercise of powers aimed at having impact on the lives of people to be within the limits ordained by the Constitution.

Published in Dawn, May 18th, 2023

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