ISLAMABAD: The Islamabad High Court (IHC) on Friday declared the powers of the district magistrate of Islamabad to detain any citizen under the Maintenance of Public Order (MPO) ordinance as unconstitutional.
Justice Babar Sattar of the high court announced the written order on petitions filed by Pakistan Tehreek-i-Insaf (PTI) leaders Sheharyar Afridi and Shandana Gulzar, who were detained under the MPO on the order of the district magistrate, and later released on the directions of courts.
According to the judge, the decision to detain any citizen under the MPO could only be taken by the federal cabinet. The IHC observed that an order under Section 3 of the MPO cannot be based on conjectures and surmises. It should be based on concrete and tangible evidence.
“The grounds on the basis of which the detention order of a person is issued must be supported by sufficient and cogent material of the nature as would satisfy an ordinary prudent person to justify the issuance of an order of preventive detention.”
IHC order says such a decision could only be taken by federal cabinet
The order said: “Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with the law. Powers under Section 3 of the MPO cannot be invoked for detention of persons on the grounds other than those provided for by the law. The authority which issues a preventive detention order under Section 3 of the MPO must satisfy itself that the material/evidence produced before him is sufficient to justify the detention order, failing which the detention order shall be violative of Article 9 of the Constitution.”
Mr Afridi was first arrested on May 16 from his Islamabad residence under Section 3 of the MPO ordinance 1960. He was rearrested on May 30 under the same section soon after his release from prison.
On July 31, he was granted bail by the Lahore High Court’s Rawalpindi bench, but was picked up a few days later by the Rawalpindi police soon after his release from Adiala jail.
A petition was subsequently filed by his lawyer in the IHC calling for Mr Afridi’s release and for the MPO order to be set aside.
Meanwhile, Ms Gulzar was also detained on August 9. A petition was later filed by her mother in the IHC on the grounds of illegal arrest and violation of Articles 4, 9, 10A and 14 of the Constitution, calling for the police to produce her daughter in court.
In the detailed 83-page judgement, Justice Sattar feared that the arrest of a citizen on suspicion that he “might act prejudicial in future to safety or public order would allow the state to apprehend an individual on the suspicion of a thought crime not linked to an action that has transpired or was transpiring and therefore not permitted by the Constitution.”
The court direct the federal government to frame rules or include such rules within the Rules of Business 1973 for allocation and discharge of functions to be performed in relation to provincial laws applicable to ICT within a period of three months.
The judgement explained that “the federal government is also the provincial government for the purposes of ICT and the chief commissioner is not the provincial government for ICT will only apply prospectively and will affect past and closed transaction.”
Notwithstanding the time frame provided for framing appropriate Rules of Business for purposes of ICT, any decision ought to be taken by the provincial government under any law for the time in force in ICT can only be taken by the federal cabinet.
Thus the May 10, 1992 notification of the chief commissioner delegating authority of the provincial government under section 3(1) of MPO to the district magistrate ICT in exercise of power under section 26 of MPO was also declared to be coram non judice and without jurisdiction by the verdict.
“In the absence of sufficient material establishing that arrest or detention of a citizen is a necessity to preserve public safety and public order, otherwise it might emerge a grave emergency beyond the control of the provincial government, the judgment regretted, any issuance of detention orders infringing the rights of the petitioner to liberty and dignity constitutes malice in law and colourable exercise of jurisdiction rendering the officials seeking or issuing such orders were liable for the tort (legal liability for wrongful act) of breach of statutory duty actionable under Article 212(b) of the Constitution.”
The verdict also cited the 2016 Supreme Court Mustafa Impex case, which required decision or exercise of authority by the government in relation to ICT whether as federal or provincial governments by the federal cabinet as collegium.
Published in Dawn, December 30th, 2023
