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ISLAMABAD: The Islamabad High Court (IHC) has declared that the impugned detention orders could not be passed without resorting to lesser restrictions available to the provincial government under section 5 of the Maintenance of Public Order Ordinance, 1960, as these impinge on fundamental rights envisioned in the Constitution.

The IHC 83-page judgment authored by Justice Babar Sattar said; “The government is under an obligation to adopt the means less restrictive to enjoyment of fundamental rights and are proportionate to the mischief that is sought to be prevented.”

The IHC in August 2023 suspending the arrest and detention of PTI leaders - Shehryar Afridi, and Shandana Gulzar under Section 3(1) of MPO, had ordered to release them.

The judgment said that in the absence of sufficient material establishing that arrest or detention of a citizen is a necessity to preserve public safety and public order, failing which there might emerge a grave emergency beyond the control of the provincial government, issuance of detention orders infringing the rights of the petitioner to liberty and dignity constitutes malice in law and colorable exercise of jurisdiction rendering the officials seeking such orders and issuing such orders liable for the tort of breach of statutory duty actionable under Article 212(b) of the Constitution.

IHC bars arrest orders under MPO till further orders

The federal government exercises exclusive executive authority under the Constitution and in relation to federal laws and provincial laws applicable to ICT and is consequently, both the federal government and the provincial government for the purposes of ICT.

In accordance with the law laid down in Mustafa Impex, where any law requires the decision or action or exercise of authority by the government in relation to ICT, whether as federal government or provincial government, such decision, action or exercise of authority can only be exercised by the federal Cabinet as collegium.

P.O No. 18 of 1980, P.O No. 2 of 1987, P.O No. 02 of 1990 and notifications issued thereunder declaring the Administrator or Chief Commissioner Islamabad to be Provincial Government for purposes of ICT are ultra vires the Constitution and are declared to be void.

Article 99 of the Constitution creates a mandatory obligation for the Federal Government to frame rules for allocation of its business, and such business of the Federal Government includes the power, duties and functions to be discharged in its capacity as Provincial Government.

The Federal Government shall frame such rules or include such rules within the Rules of Business, 1973, for allocation and discharge of functions to be performed by it in relation to provincial laws applicable to the ICT, within a period of three months.

The declaration by this Court that the Federal Government is also the Provincial Government for purposes of ICT and the Chief Commissioner is not the Provincial Government for ICT will apply prospectively and will affect past and closed transactions.

Notwithstanding the time frame provided for framing appropriate Rules of Business for purposes of ICT, any decision that 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.

The impugned detention orders are declared to be coram non judice, without jurisdiction and are set aside for being of no legal effect. The notification of Chief Commissioner dated 10.05.1992 delegating authority of the Provincial Government under section 3(1) of MPO to District Magistrate ICT in exercise of power under section 26 of MPO is declared to be coram non judice and without jurisdiction.

Such delegation can only be made by the Federal Government in its capacity as Provincial Government for ICT, subject to the law laid down by the Supreme Court in Pakistan Electronic Media Regulatory Authority v Pakistan Broadcaster’s Association and another (2023 SCMR 1043).

The decision with regard to acceptance or rejection of a reference seeking the order of preventive detention is subject to satisfaction of the Provincial Government, which discretionary authority to be exercised by the government as a collegium cannot be delegated to one individual.

Section 3(2) of the MPO to the extent that it allows the initiation of a reference on the pretext that the person “is about to act” in a manner prejudicial to the public safety and order is ultra vires to Article 10(4) of the Constitution as no law for arrest and detention could be framed unless the individual has acted or is acting in a manner prejudicial to public safety and maintenance of public order.

The arrest of an individual on the suspicion that he might act in the future in a manner prejudicial 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 is transpiring and is not permitted by the Constitution.

Copyright Business Recorder, 2023

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