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Official Citation: 2024 PLJ 184
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2022
Decision Date: 2022-12-31
Parties: Shehryar Afridi vs Federation of Pakistan through Secretary Ministry of JUDGMENT
Ruling Summary: This decision was rendered by the Islamabad High Court on 2022-12-31, officially reported as 2024 PLJ 184. In this matter between Shehryar Afridi and Federation of Pakistan through Secretary Ministry of JUDGMENT, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as PLJ 2024 Islamabad 184
Court Name: Islamabad High Court Judge(s): Babar Sattar Title:Shehryar Afridi vs Federation of Pakistan through Secretary Ministry of
JUDGMENT
Reported As: 2023 IHC 132, 2023 IHC 366, PLJ 2024 Islamabad 184 Result: Petition Allowed Judgment JUDGMENT BABAR SATTAR, J. Through this judgment the Court will decide the afore-titled petition as well as the petitions listed in the Annexure. 2. According to the population census of 2023, approximately 2.364 million citizens of Pakistan live in Islamabad Capital Territory. Article 1(2)(b) of the Constitution of Islamic Republic of Pakistan ("Constitution") identifies Islamabad Capital Territory ("ICT") as the Federal Capital that doesn't form part of any Province. The State claims that pursuant to the Presidential Order 18 of 1980 (enacted by General Zia-ul-Haq, who had abrogated the Constitution after imposing Martial Law in 1977, and usurped the authority of the State and arrogated it to himself) read together with Presidential Order No. 02 of 1987 and Presidential Order No. 02 of 1990, the Chief Commissioner Islamabad - a civil servant serving in Basic Scale-20 - is a one-man Provincial Government for ICT and its denizens. This one-man is the repository of the sum total of all powers, functions and duties of the Provincial Government under all provincial laws applicable to ICT. 3. The question of who is to be regarded as the Provincial Government for ICT has arisen in the context of the exercise of authority under the Maintenance of Public Order Ordinance, 1960 ("MPO"), which vests in the Provincial Government the authority to order detention of citizens under Section 3(1) of MPO and also authorizes the Provincial Government pursuant to Section 26 to delegate its authority under Section 3(1) to the District Magistrate. Successive Deputy Commissioners of ICT, who also wear the hat of District Magistrate, have continued to exercise powers under Section 3(1) to order arrest and detention of citizens in ICT purportedly to maintain public order in the Federal Capital. Since May 2023, the present incumbent has merrily passed a
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little shy of six dozen detention orders under Section 3(1) of MPO, mainly to arrest members of Pakistan Tehreek-e-Insaaf who he deemed to be a threat to public order. 4. The arrest and detention of three such detainees - Shehryar Afridi, Shandana Gulzar and Akseer Ahmed - has been challenged in Writ Petitions 2491, 2490 and 2536 of 2023, respectively, on the basis that such detention orders are ultra vires Articles 4, 8, 9, 10A, 14 and 25 of the Constitution and in breach of the substantive and due process rights guaranteed by the Constitution and also for being coram non judice, without jurisdiction and mala fide. The petitioners in Writ Petitions 3159 and 2833 of 2023 have challenged the legality of the existing legal regime in place in ICT that regards the Chief Commissioner as the Provincial Government for ICT and have sought declarations that Presidential Order No. 18 of 1980, Presidential Order No. 02 of 1987, Presidential Order No. 02 of 1990 and S.R.O.1316(I)/80 dated 31.12.1980 conferring on Administrator ICT (now Chief Commissioner) the powers of Provincial Government be declared ultra vires Articles 2A, 48, 90, 97, 98, 99, 141 and 142 of the Constitution. 5. The afore-mentioned petitions have been heard together and will be decided through this common judgment as the question of the identity of the Provincial Government for ICT under provisions of the Constitution is integral to determining who can exercise the Provincial Government's power to order arrest under Section 3(1) of MPO and/or delegate it to the District Magistrate pursuant to Section 26 of MPO for purposes of ICT. The additional questions that arise re challenges to detention orders include whether MPO was ever extended to ICT and remains in force in the Federal Capital, whether the Provincial Government's powers under Section 3(1) are validly delegated to District Magistrate ICT and to what extent can such powers be delegated under Section 26 of MPO, and whether such powers were exercised in a manner that is in accordance with law and not violative of the fundamental rights of detainees guaranteed by the Constitution. Arguments of the Counsels for Parties 6. The arguments of the learned counsels for the parties are not being reproduced in this judgment in the interest of economy, as almost all counsels filed written submissions that form part of the court record and the opinion of the court rests wholly on these legal arguments, as will become evident. The arguments will, however, be identified and addressed in the analysis where the opinion of the court is informed by the acceptance or rejection of an argument canvassed at the bar. This court must express its gratitude at the outset to Mr. Waqar Rana and Mr. Salahuddin Ahmed, learned ASCs, who agreed to act as amici and provided very able assistance and materials addressing the legal questions that are being adjudicated. The court was provided valuable assistance by all the learned counsels who appeared in these matters, especially Dr. Babar Awan, ASC and Mr. Usama Rauf, AHC. The court must also acknowledge the assistance rendered by Barrister Munawar Iqbal Duggal, learned Additional Attorney General and Mr. Malik Abdur Rehman, learned state counsel, who also provided a compendium of relevant legal instruments to trace the history of distribution of authority between the Federation and the Provinces since 1935 and its further delegation. The research assistance provided by Mr. Adeen Siddiqi, the Law Clerk assigned to this court, has also been very beneficial. Opinion of the Court 7. The most logical scheme to address the questions that form the subject matter of the petitions is to start with the determination of the identity of the Provincial Government for ICT, tracing the history of how various constitutional and unconstitutional dispensations led to the evolution of the legal regime that exists today under the Constitution, as amended from time to time, and especially after promulgation of the 18th Constitutional Amendment. This will be followed by a discussion regarding the scope of preventive detention under our Constitution in view of the fundamental rights guaranteed by it, in order to determine the constitutionality of the detention orders impugned before this court and the scope of judicial review in relation to such orders. The
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last part of the analysis will address the procedure prescribed for exercise of powers under the MPO and the extent to which the power to order arrest and detention under Section 3(1) can be delegated by the Provincial Government. 8. Making a few contextual observations may be in order before we begin grappling with the legal questions. One, while the roots of our present constitutional dispensation need to be traced back to the Government of India Act, 1935, to appreciate elements of continuity and change, we cannot lose sight of the stark distinction between (A) a legal dispensation stitched together by a Colonizing State to exercise dominance over and maintain order amongst subjects of colonized territories ruled in the name of an Alien Monarch, and (B) a constitutional regime in a representative and sovereign democracy regulating the relationship between the citizens and the state exercising authority in their name and on their behalf. What Allama Muhammad Iqbal had written in his treatise "The Reconstruction of Religious Thought in Islam" in the context of appreciating religious texts, is equally applicable to legal texts in view of our colonial history: "false reverence for past history and its artificial resurrection constitute no remedy for a peoples decay." 9. Two, the rule of law regimes of the contemporary epoch stand in contradistinction to the erstwhile regimes characterized by the rule of men. The legitimacy of a rule of law regime is rooted in the fair and impartial enforcement of laws and rules that bind the polity and form part of the social contract between the citizen and the state. To ensure that rule of law doesn't degenerate into rule of men, constitutions across democratic polities put together institutional structures of separation of powers laced with checks and balances. Wide distribution of power preventing its concentration in any one individual or entity has thus come to be recognized as the safest means to prevent abuse of power. Separation of powers is recognized as a salient feature of our Constitution. The jurisprudence produced by the Supreme Court in the realm of constitutional and administrative law has established over time that the concept of any one individual or institution being conferred with arbitrary power and discretion is anathema to our constitutional scheme. 10. Three, the moral authority of a rule of law system depends on its ability to apply law in a manner that reduces the gap between law and its uniform enforcement, and enforcement of laws such that they produce just and fair outcomes. The Constitution (and laws enacted or recognized under it) cannot claim normative force and moral authority if the Constitutions and laws are interpreted and applied in a manner that the outcomes produced in individual cases militate against the foundational human rights such as liberty, dignity and equality. Because the Constitution is a living document, the constitutional text is an unfolding narrative. The fundamental rights guaranteed by the text of the Constitution may remain the same over time. But the standards of conduct that must be met by those exercising authority on behalf of the state to uphold the rights of citizens evolve with time in order to breathe life into such rights and prevent them from being reduced to black letter. The Provincial Government for ICT 11. Some basic features of the Constitution can be traced back to the Government of India Act, 1935 ("GoIA"). It distributed legislative and executive powers between the Federation and Provinces. The executive authority of the Federation extended to matters in relation to which the Federal Legislature had authority to make laws. The same principle applied to the executive authority of the Provinces. The Additional Attorney General had argued that Part IV of the GoIA dealt with the Chief Commissioner's Provinces, which were administered directly by the Governor General through a Chief Commissioner appointed by him. And it was this model of governance that was still in vogue in Islamabad. The argument however doesn't really flow in the context of ICT's administration today. The GoIA was not a democratic or representative legal instrument. Its preamble stated that it was enacted by "the King s most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled..." The Governor-General had overriding authority and could direct Parliament to legislate or otherwise
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enact laws in his discretion and/or issue proclamations etc. Due to the overriding authority of the Governor-General exercised on behalf of the King, there was neither any strict separation of powers nor any concept of federalism as understood today. Further, the Chief Commissioner's provinces were unrepresented territories where the Governor-General could do as he pleased. On a purely legal plane, the GoIA carved out Chief Commissioner's Provinces, as noted above. Our Constitution neither recognizes Chief Commissioner's Provinces nor vests in the President any executive authority to be exercised in his discretion to administer the Federal Capital as a Chief Commissioner's Province. 12. The Indian Independence Act, 1947, made no special provision for the Federal Capital. Section 290-A of GoIA vested power in the Governor General to demarcate areas that were to form part of Provinces or Federal territories. The Pakistan (Establishment of Federal Capital) Order, 1948 ("Federal Capital Order"), published on 23.07.1948, locating the capital of Pakistan at Karachi, relied on power flowing from section 290- A of GoIA. Clause (b) of its preamble clarified that the administrative and executive authority in respect of Karachi was to be exercised by the Government of Pakistan and the legislative authority by the Federal Legislature. Article 5 provided that, "the executive authority of Karachi shall be exercised by the Governor-General either directly, or to such extent as he thinks fit, through an Administrator to be appointed by him..." Under Article 5 of the Federal Capital Order was issued a notification on 23.07.1948 vesting in the Administrator for Karachi "all powers and duties conferred or imposed on the Government of Sindh under any enactment, notification, order, rule or bye-law...", subject to special or general instructions issued by the Central Government. It is the State's position that this transitional scheme for administration of the newly created Federal Capital hurriedly put together immediately after independence is still in force in ICT pursuant to Presidential Order 18 of 1980. 13. The Establishment of West Pakistan Act, 1955, integrated Governor's Provinces, Chief Commissioner's Provinces, States and territories of West Pakistan, including the Capital of the Federation, into the Province of West Pakistan. Section 2(2) provided that, "the Capital of the Federation shall be administered in accordance with the provisions of section 290A of the Government of India Act, 1935", even though section 3 clarified that the properties and assets in respect of the Capital would remain vested in the Federal Government. 14. The Constitution of 1956 entered into force on 23.03.1956. Article 39 provided that the executive authority of the Federation would extend to matters in relation which Parliament had the authority to make laws. Article 211 of the Constitution of 1956 specifically dealt with the Federal Capital. Article 211(2) provided that, "the administration of the Federal Capital shall vest in the President who may, by Order, make such provisions as he may deem necessary or proper..." including, inter alia, "for its Government and administration", and "with respect to the laws which are to be in force there." Article 211(3) clarified that, "notwithstanding anything in the Constitution, Parliament shall have power to make laws for the Federal Capital with respect to matters enumerated in the Provincial List and matters not enumerated in any List in the Fifth Schedule, other than matters related to the High Courts." In other words, while for purposes of governance and administration of the Federal Capital, Article 211 conferred discretion on the President, Article 211(3) clarified that the Parliament was the competent and exclusive legislature for all matters in relation to the Federal Capital. 15. The Constitution of 1956 was abrogated and Martial No. 1 of 1958 was published on 10.10.1958. It provided in Article 2(1) that, "notwithstanding the abrogation of the Constitution...Pakistan shall be governed as nearly as may be in accordance with the late Constitution." Article 5(1) provided that: "The powers of a Governor shall be those which he would have had had the President directed him to assume on behalf of the President all the functions of the Government of the Province under the provisions of Article 193 of the late Constitution and such powers of making Ordinances
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as he would have had and within such limitations had Article 106 and clauses (1) and (3) of Article 102 of the Constitution been still in force." Two matters need to be flagged here. One, the power vested in the Governor of West Pakistan under the dispensation did not include any power in relation to the Federal Capital and the executive powers of the Governor were limited to matters in relation to which the Legislature of the Province of West Pakistan had the authority to make laws. Two, while legislative powers were not conferred on the Governor of West Pakistan, he had the power to issue Ordinances. 16. President's Order No. 20 of 1960 (Seat of Government Order, 1960) was published on 01.08.1960. Article 5(1) provided that, "the territory demarcated by the Pakistan (Establishment of the Federal Capital) Order, 1948, and heretofore known as the Federal Capital shall henceforth be and be known as the Federal Territory of Karachi and shall continue to be administered by the President, from such day forward as he may appoint, acting to such extent as he may think fit through an agent to be appointed by him." The President's Order No. 9 of 1961 (West Pakistan Administration (Merger of the Federal Territory of Karachi) Order, 1961) was published on 29.06.1961. Under Articles 2 and 3 of this Order, the Federal Territory of Karachi was merged with and became a part of West Pakistan and ceased to be part of Federal Territory with effect from 01.07.1961, pursuant to notification dated 29.06.1961. (The merger of Karachi with West Pakistan and it seizing to be Federal Territory will have some relevance when we discuss the scope of West Pakistan Maintenance of Public Order Ordinance, 1960 and the West Pakistan Maintenance of Public Order (Amendment) Ordinance, 1962, later in this opinion). 17. The Constitution of 1962 was enacted under the regime run by General Ayub Khan. Article 224 provided the Constitution of 1962 would come into force on the day when the National Assembly first met. The National Assembly first met on 8-06-1962. There are two provisions of this constitution that are noteworthy for our present purposes. One, Article 31 provided that, "the executive authority of the Republic is vested in the President and shall be exercised by him, either directly or through officers subordinate to him, in accordance with the Constitution and the law." For purposes of capital territories, Article 131(4) vested in the Central and Provincial legislatures concurrent legislative jurisdiction in relation to matters that fell within the provincial field as follows: "The Central Legislature shall have power (but not exclusive power) to make laws for the Islamabad Capital Territory and Decca Capital Territory with respect to any matter not enumerated in the Third Schedule". The Provincial Legislatures had the authority to make laws in relation to matters not listed in the Federal Legislative List under the Third Schedule. 18. Karachi stood merged with the Province of West Pakistan with effect from 01.07.1961. The Constitution of 1962 Constitution, under Article 211(1), established Islamabad as the Capital of the Republic "situated in the district of Rawalpindi in the Province of West Pakistan at the site selected for the Capital of Pakistan". Pakistan suffered another Martial Law imposed on 25.03.1969, whereby the 1962 Constitution was abrogated that under clause 5(a), it was provided that "all laws, including Ordinances, Martial law Regulations, orders, rules, bye-laws, regulations, notifications, and other instruments, in force immediately before the abrogation of the Constitution shall continue in force". 19. Under President's Order No. 1 of 1970 (Province of West Pakistan (Dissolution) Order, 1970) dated 30.03.1970, the West Pakistan Province, under clause 4, was divided into four (04) provinces and separately identified Centrally Administered Areas, which included the Islamabad Capital Territory. Under clause 5(2), the Centrally Administered Areas, including Islamabad, were to be administered by the President. Further, under clause 6(1)(b), the President was to have exclusive power "in relation to the Islamabad Capital Territory, to make laws with respect to all matters". This instrument is of relevance, as pursuant to it, for the first time since the creation of Pakistan, ICT as the Federal Capital was identified as an independent territory that did not fall within the territorial
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boundaries of any Province. Then came President's Order 12 of 1971, Islamabad Capital Territory (Administration) Order, 1971 dated 22.10.1971. Under clause 2(1), it was provided that "the Government of Punjab shall, on behalf of the President, exercise and perform in relation to the Islamabad Capital Territory the same powers and functions as were exercisable in relation to that territory by the Government of West Pakistan immediately before the first day of July 1970". 20. If one were to try and make sense of arbitrary Martial Law instruments, pursuant to President's Order No. 1 of 1970, the Islamabad Capital Territory was placed under the President's administrative and legislative competence. Under the President's Order 12 of 1971, the Government of Punjab was delegated the authority to exercise the same powers and functions being exercised by the "Government of West Pakistan", given that under the Constitution of 1962, the Government of West Pakistan in relation to provincial subjects enjoyed legislative competence concurrently with the Central Legislature. If President's Order No. 1 of 1970 is read together with President's Order 12 of 1971, the President while exercising administrative authority over the Islamabad Capital Territory, delegated to the Government of the Punjab, to be exercised on his behalf, authority in relation to provincial matters that fell beyond the Federal Legislative List prescribed under Schedule Three of the Constitution of 1962. 21. Under the Constitution of 1973 Article 1(2)(b) defined Islamabad Capital Territory as the Federal Capital Territory. Article 142(d) provided that "Majlis-e-Shoora (Parliament) shall have exclusive power to make laws with respect to all matters pertaining to such areas in the Federation as are not included in any Province." Article 97 of the Constitution provided that "the executive authority of the Federation shall extend to the matters with respect to which Majlis-e-Shoora (Parliament) has power to make laws." The scheme of distribution of executive and legislative authority under the Constitution is therefore unequivocal. Provincial governments have executive authority in relation to the territory that falls within the domain of province. The Federal Government has exclusive executive authority in relation to matters with respect to which Parliament has power to make laws. In view of Article 142(d), what emerges from the scheme of distribution of executive and legislative authority within our Federation is that while Federal Government has executive authority across Pakistan in relation to matters that fall within the legislative competence of the Parliament, Provincial Government has no authority in relation to any territory that falls beyond the territorial boundaries of the province in question. ICT is a separately identified territory being the Federal Capital that does not fall within any province. And Parliament has exclusive authority to legislate in relation to all matters when it comes to the affairs of the Federal Capital, whether such matters are listed in the Federal Legislative List or not. Therefore, by virtue of Parliament being the competent legislature in relation to the federal subjects as well as the provincial subjects to the extent of Federal Capital, by virtue of Article 97 of the Constitution, the executive authority of the Federation extends across the Federal Capital in relation to the federal subjects and other subjects that are otherwise deemed to be provincial subjects when it comes to the Provinces of our Federation. 22. The next legal instrument of relevance is the Validation of Laws Act, 1975, published on 29.07.1975, which validated various legal instruments issued between 25.03.1969 and 19.12.1971 i.e. when the Martial Law of General Yahya was in place. In the schedule to the Validation of Laws Act, 1975, was included the Islamabad Capital Territory (Administration) Order, 1971 (P.O No. 12 of 1971). Pursuant to the validation of Laws Act, 1975, the actions of the Government of Punjab in relation to affairs of the Federal Capital between 25.03.1969 and 19.12.1971 were validated. In view of the above instrument, it was only between 22.10.1971 when the Islamabad Capital Territory (Administration) Order, 1971 (P.O No. 12 of 1971) was enacted and the entry into force of the Constitution, that Government of Punjab was vested with authority in relation to the Federal Capital which authority was exercised by the Government of Punjab on behalf of the President.
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23. The Constitution was abrogated when General Zia-ul Haq imposed Martial Law on 5.07.1977 and issued the Laws (Continuance in Force) Order, 1977. Article 2 of this Order provided that despite the abrogation of the Constitution Pakistan would be governed "as nearly as may be in accordance with the Constitution." Pursuant to the General Clauses (Amendment) Ordinance, 1979, promulgated by the Chief Martial Law Administrator, which was given effect from 01.07.1979 Section 3(43A)(aaaa)…
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