Arresting on suspicion of breach of peace in the future is against the constitution, Islamabad High Court

Islamabad: The High Court, while hearing the case regarding DC’s authority regarding MPO, has declared that arresting on suspicion of breach of peace in future is unconstitutional.

The Islamabad High Court issued a written decision to hear the petitions against the detention of Shehryar Afridi and others under the MPO, in which the court ruled that DC Islamabad’s authority to issue the MPO order was against the law and exceeded its powers. Declaring that it is against the constitution to arrest on suspicion of breach of peace in the future.

Justice Babar Sattar of the Islamabad High Court issued an 89-page order, in which the court said that the federal government under the constitution has individual powers regarding federal and provincial laws applicable to Islamabad. For Islamabad, the federal government plays the role of both federal and provincial governments. It is unconstitutional to arrest a person merely on the suspicion that he will pose a threat to the peace in the future.

The judgment said that issuing orders for the arrest of a person in the presence of insufficient material amounts to abuse of power. 5 petitions against the detention orders issued by the Deputy Commissioner have been approved while one petition is being disposed of. A copy of this order should be sent to Secretary Cabinet Division for implementation of the orders.

The court ruled that DC Islamabad’s authority to issue MPO orders was against the law and that the Chief Commissioner’s notification of 1992 assigning powers to DC Islamabad was also against the law. The federal government should formulate rules related to the use of provincial powers in 3 months. The federal government is the provincial government as far as Islamabad is concerned, not the chief commissioner.

The Islamabad High Court wrote in the judgment that Article 3 (2) of the MPO is in conflict with Article 10 (4) of the Constitution. No person can be arrested merely on the ground that he can do this act. Arrest is applied when someone is doing or has done an act. It is also necessary to have concrete evidence to issue detention orders. Powers under the preventive detention laws were used for political purposes, especially before elections. After the dictatorial governments, the democratic governments also did not stay back from misusing the MPO powers.

The 89-page judgment further said that detention under the MPO is illegal as the law has to come into play when an offense is committed. Neither the law of pre-trial detention nor the power of preventive detention can be exercised before the enactment of this Act. Not the Chief Commissioner of Islamabad, but the federal government has the authority to apply the laws of the federation and the province to the extent of Islamabad.

The judgment further stated that according to the Mustafa Impex judgment, the court declared that the approval of the cabinet would be necessary for the exercise of these special powers. The notification of the Chief Commissioner Islamabad regarding the provincial powers is declared to be unconstitutional and null and void. 1992 Notification of Provincial Powers of District Magistrate is also illegal and without powers. The federal government should formulate rules related to the use of provincial powers in 3 months.

Details of MPO orders issued by DC Islamabad

Details filed in the Islamabad High Court have come to light, showing how many MPO orders issued by DC Islamabad Irfan Nawaz Memon as District Magistrate from May to September.

The court said that the District Magistrate issued 67 MPO orders in 5 months from May to September 2023, majority of which were against PTI leadership or their members. The PTI leadership alleged that the government is targeting them on the basis of political affiliation. All the MPO orders challenged in the Islamabad High Court were either annulled or withdrawn by the DC or rendered ineffective.

Not a single MPO order was issued after legal process. A second MPO was issued in September against Shehryar Afridi, who has been in custody since May. The District Magistrate was given repeated opportunities but could not produce any material before the court in support of his order. According to the records before the court, the District Magistrate committed fraud with the constitution and law.

The court declared that the way the District Magistrate used the authority also falls under the category of malice. The court is not giving any further observation because contempt of court proceedings against Deputy Commissioner Islamabad are pending. The requirement of a fair trial is that the court should not make any observations against the DC before the trial is completed.