ISLAMABAD: The Supreme Court has held that the transmission of a complaint or information by the federal government received through Pakistan Citizen’s Portal or Prime Minister’s Performance Delivery Unit does not constitute interference or transgression in the executive domain of the provincial department concerned.

The performance delivery unit was established by the federal government to promote citizen-centric and participatory governance and serves as a complaint and grievance redressal forum, particularly to facilitate overseas Pakistanis, women, special persons and foreigners, observed Justice Athar Minallah in a judgement he authored.

Justice Minallah was a member of a three-judge SC bench comprising Chief Justice of Pakistan (CJP) Umar Ata Bandial and Justice Ayesha A. Malik that had taken up an appeal moved by the interior secretary as well as the Khyber Pakhtunkhwa chief secretary against the Sept 29, 2021 judgement by the Peshawar High Court’s Mingora bench which had declared as unconstitutional the actions taken by the portal and the unit.

Established under the Rules of Business 1973, the performance delivery unit is a government-owned system based on mobile application intended to be used as a tool to promote citizen-centric and participatory governance, the SC judgement said, adding that it enables the citizens to raise issues and make complaints.

SC rules mobile app doesn’t exercise power amounting to prejudicing citizens’ rights

The controversy at hand involves a complaint which was received on the portal on Feb 2, 2021, alleging that the private respondents had acquired chemical and biological weapons and that they were facilitators of terrorists.

The complaint was transmitted to the inspector general of KP police and was forwarded by the latter to the Swat district police officer. After investigating, it was concluded that the allegations were false and, therefore, the competent authority ordered that the complaint be filed.

The private respondents were aggrieved because they felt being subjected to harassment during the course of investigation. They filed a complaint on the portal and sought information regarding the identity of the complainant. After their request was denied, they invoked the jurisdiction of the high court under Article 199 of the Constitution.

The prayer sought by the private respondents was not granted, but the working and functions of the unit and the portal were declared to be unconstitutional. In its order, the high court was of the opinion that the working of both the forums was transgression of the executive authority of the province.

In his judgement, Justice Minallah explained that the case record suggested that the high court had assumed that the unit and the portal had exercised powers in the nature of transgression into the domain of the provincial government.

The unit and the portal merely receive complaints and they are automatically transmitted to the authorities concerned for consideration. Neither the unit nor the portal exercises any power that would amount to prejudicing the rights of the citizens or treated as interference in the executive domain of the province, Justice Minallah said.

The transmission of information to the authorities concerned of the province, by no stretch of imagination, can be construed as interference or transgression in its domain. After receiving the information transmitted by the unit or the portal as the case may be, the provincial authorities concerned are expected to consider the same and thereafter proceed in accordance with the law. They are not bound to act in a particular manner nor can any direction or order be passed by the unit or the portal, the judgement said.

In the case in hand, the complaint received on the portal was of a serious nature and its transmission to the competent authority in KP was not in the nature of exercise of executive authority by the federal government, it added.

It observed that the high court had also not served a notice on the attorney general for Pakistan as required under Order XXVII-A of the Civil Procedure Code, 1908, adding that the constitutionality of the working and functioning of the unit and the portal was not challenged by the private respondents.

They were aggrieved because the investigation had subjected them to inconvenience and harassment and, therefore, they sought details of the identity of the complainant. To that extent, their prayer was not granted because the identity of the complainant was to be kept protected, Justice Minallah observed, adding that the grievance of the federal government was restricted to the declaration made by the high court regarding the constitutionality of the working and functioning of the unit and the portal.

“The high court had indeed not appreciated the working and functioning of both the mobile application forums. Therefore, the high court judgement has not correctly appreciated and interpreted the status and functioning of the unit and the portal and thus disposed of,” the judgement concluded.

Published in Dawn, September 5th, 2023