Arresting without sufficient evidence illegal, IHC rules

The Islamabad High Court (IHC) ruled on Saturday that arresting individuals on suspicion of breach of peace was against the Constitution and instructed the federal government to formulate rules relating to the use of provincial powers for the federal capital within three months.

In the 89-page judgment on five petitions filed by Pakistan Tehreek-e-Insaf’s (PTI) Sharhyar Afridi and others, IHC Justice Babar Sattar stated that no individual could be arrested merely on the grounds that he or she could pose a danger to civic peace.

On Friday, the IHC declared that the Presidential Order (PO) No 18 of 1980 as ‘illegal’, saying that the deputy commissioner of Islamabad did not have the authority to issue detention orders under Section 3 of the Maintenance of Public Order (MPO).

“In the absence of sufficient material establishing that arrest or detention of a citizen is a necessity to preserve public safety and public order… issuance of detention orders infringing the rights of the petitioner to liberty and dignity constitutes malice in law,” the judgment said.

Continuing, it added: “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.”

The court said that PO-18 of 1980, PO-2 of 1987, PO-2 of 1990 and the notifications that declared administrator or chief commissioner of Islamabad to be the provincial government for the capital, were ultra vires the Constitution and declared to be void.

Read IHC declares law giving detention powers to Islamabad DC illegal

In relation to federal laws and provincial laws applicable to Islamabad Capital Territory (ICT), the judgment noted, the federal government was both the “federal government and the provincial government” for purposes of ICT.

“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 transaction,” read the judgment.

“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 court allowed the petitions and set aside the arrest orders under the MPO. “The impugned detention orders are declared to be coram non judice, without jurisdiction and are set aside for being of no legal effect,” the judgment said.

“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,” it continued.

“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.”