Capital’s DC, SSP, SHO found guilty of contempt

Accused issued detention orders of PTI workers in violation of IHC orders

ISLAMABAD:

The Islamabad High Court has declared the capital's Deputy Commissioner (DC), Irfan Nawaz Memon, Superintendent of Police (SSP) Operations Jameel Zafar, and Station House Officer (SHO) Naseer Manzoor guilty in a contempt matter regarding the issuance of detention orders of the PTI workers in violation of the court orders.

"In view of the principle of proportionality and the settled principle of fairness that higher the authority the greater his responsibility, this court holds that (i) Respondent No 1, DC Irfan Nawaz Memon, is guilty of contempt of court and shall be punished with six months simple imprisonment and Rs100,000 in fine, (ii) Respondent No 2, SSP Malik Jameel Zafar, is guilty of contempt of court and shall be punished with four months simple imprisonment and Rs100,000 in fine, and (iii) Respondent No 4, SHO Nasir Manzoor, is guilty of contempt of court and shall be punished with two months of simple imprisonment and Rs100,000 in fine.

Respondent Nos 1, 2 and 4 will serve their sentence at Adiala Jail," a written order authored by Justice Babar Sattar says.
The judgement notes that the respondents have a right to appeal this verdict before a division bench of this court within 30 days pursuant to Section 19 of the Ordinance.

"As the sentence awarded constitutes a short sentence and the convicted respondents being public servants do not pose a flight risk, the sentence awarded shall stay suspended for a period of 30 days to enable the respondents to avail their remedy of appeal.

In suspending this sentence this court has also taken account the fact that Respondent Nos 1, 2 and 4 occupy public offices and their sudden removal therefrom could adversely affect public convenience.

“The suspension of this sentence would enable the government to respond to this verdict without causing inconvenience to the citizens. If the right of appeal is not availed or if the sentence is not suspended in appeal, Respondents No 1, 2 and 4 will be taken into custody upon expiry of the 30-day period."

The court also directed prime minister of Pakistan to investigate whether DCs across Pakistan who continued to issue detention orders under MPO in breach of the law and Constitution and judicial orders were acting in an organised manner on the basis of illegal orders, and if so, take appropriate remedial action to ensure that the authority of the state to be exercised through chosen representatives of people, continues to be exercised according to the Constitution and the law."

The judgment said representative democracy was a salient feature of “our Constitution”, adding that executive authority was vested in the elected representatives of the people. Article 2A of the Constitution provides that “the state shall exercise its authority through the chosen representative of the people”.

"A civil bureaucracy, that Respondents No 1, 2 and 4 belong to, can only exercise such authority as vested in it by law. The Constitution and the law envisage that public officials, as representatives of the executive arm of the state, will exercise state authority as a trust to uphold and enforce the law in the interest of citizens of Pakistan."

It said that it cannot be countenanced that public officials would wield the law as a weapon to oppress their fellow citizens and deny them their fundamental rights guaranteed by the Constitution.

"It can also not be conceived that public officials serving as part of the executive branch of the state would wield their powers to undermine and frustrate decisions rendered by the judicial branch of the state.

“Based on the material before this Court, as discussed above at length, this Court is of the prima facie view that the synchronized issuance of detention orders by Deputy Commissioner Islamabad and those in other parts of the country was part of a deliberate policy measure executed by public officials in control of the executive branch of the state from May 2023 onward, with the object of establishing for the consumption of all and sundry that only state organ capable of allowing citizens access to their fundamental rights was the executive itself.

“Such policy and actions taken in its pursuit threaten the concept of separation of powers, which is a salient feature of the Constitution. They also threaten the existence of the Judiciary as an independent pillar of the state conferred with the responsibility of adjudicating grievances between the citizens and the state. If such policy of deliberate and calculated disregard for fundamental rights of citizens and rendering dysfunctional the machinery for enforcement of fundamental rights in the form of an independent Judiciary is allowed to persevere, there can be no rule of law in Pakistan. Further, the very existence and utility of the Constitution would come into question. This Court therefore feels that there is need to investigate whether there was an organized policy to use detention orders issued under the MPO to scuttle the fundamental rights of citizens and undermine the Judiciary.

"Such investigation, to be meaningful, must be undertaken and overseen by the head of the executive branch of the state."
The judgement noted that between May 9, 2023 and Nov 2, 2023, DC Memon issued some 69 detention orders in exercise of power under Section 3 of the MPO.

The cumulative period of detention that he ordered those who were on the receiving end exceeded 1,000 days. Over two dozen petitions were filed before Islamabad High Court challenging these orders.

These cases were marked before seven out of the eight judges comprising the IHC.

Except for two cases, where detention orders were issued out of concern for sectarian violence, not one order detaining political workers on grounds of incitement of violence sustained judicial scrutiny.

"The court said that respondents were also advised that rendering an unconditional apology would amount to admission that the conduct in question that caused the initiation of show cause proceedings was indeed contemptuous. However, in the event that they sought to justify their conduct and defend themselves they would be afforded complete opportunity to do so in accordance with their rights guaranteed under Article 10A of the Constitution. None of the respondents filed any apology. They chose to justify and defend their actions by producing affidavits and relying on the record summarized above to justify their actions of soliciting and/or issuing detention orders under MPO."

The court also said that in Pakistan, like other constitutional states, public authority flows from the Constitution and Constitution alone.

"There is no other source of authority. The feature distinguishing legal authority from brute force is legitimacy. In a polity functioning under the Constitution, the concept of de facto power is akin to the concept of brute force.

"It is devoid of legitimacy. The only power that is clothed with legality and legitimacy is that which flows from the law and the Constitution and is thus de jure. The existence and exercise of de facto power in a state administered under a Constitution is the manifestation of weak constitutionalism and speaks to the need to reduce the gap between the law and its implementation.

"The courts of law established under the Constitution and exercising authority vested by law, can never recognize or legitimize de facto power (referred to as ground realities in the vernacular). Doing so would delegitimize the courts themselves."

The judgement said that a DC or police officer has no authority other than that vested by law and no jurisdiction to exercise it except as mandated by law.

"The actions of public officials are protected by law in so far as they are backed by it. Their source of authority over fellow citizens is the authority of law, not personal authority that be exercised at whim or on the basis of an illegal command.

“Public officials are responsible and accountable for their actions just as private citizens, if not more. The doctrine of agency underlying personal liability is fully applicable to the actions of public office holders"

The judgement also notes that the counsel for DC emphasised repeatedly that the District Intelligence Committee comprised heavyweights, such as respondents No 1 and 2, representatives of IB, ISI, MI, Rangers, Special Branch and the 111-Brigade.

"The only noteworthy aspect of the composition of the District Intelligence Committee (DIC), unfortunately, is the poverty of the opinion rendered by it based on conjectural reports issued by the Special Branch and IB, which any reasonable mind with no security and intelligence training would be able to identify as utterly lacking of substance.

“What is also interesting is that while the DIC, Rawalpindi, with composition similar to that of DIC Islamabad, advised DC Rawalpindi that Shehryar Afridi was no longer a threat to public order and safety, the very next day DIC Islamabad came to the opposite conclusion ie that Shehryar Afridi had become a threat to public order and safety in Islamabad, some 30km away from Rawalpindi where he was no longer a threat to public order.

“The DIC Islamabad was constituted by Chief Commissioner Islamabad by notification dated 10.05.2018. Such committee is neither created under a statute nor is vested with any authority by law.

"The DIC is merely a means to coordinate action between different agencies that have their own legal mandate in Islamabad. Clause (xx) of the DIC’s Terms of Reference (TOR) provides that ‘the committee members shall perform functions and duties within their respective organizational mandate’.

“The DIC’s opinion therefore doesn’t feature even as a fig leaf to justify the illegal and contumacious conduct of respondents No 1, 2 and 4 in soliciting and issuing detention order dated 08-08-2023."

The judgement said that even otherwise, Article 243 of the Constitution clearly provides that the federal government shall have control and command of the armed forces.

"Our system of governance, established under the Constitution, is that of representative democracy. The Armed Forces are a subset of the Executive, as a subordinate of the elected civilian government, which act in aid of civil power under Article 245 of the Constitution when asked to do so by the Federal Government. The emphasis of the learned counsel for Respondent No 1 on the inclusion of military officers within the DIC that supported the issuance of detention order dated 08.08.2023, as if that is some magic wand that will miraculously get the respondents off the hook, is misconceived to put it politely. Neither the DIC nor any members of the DIC, whether serving in the Armed Forces or in intelligence agencies, had any authority over respondents No 1, 2 and 4. Neither the reports issued by the Special Branch or by Intelligence Bureau nor the opinion of DIC was binding on respondent No 1.
“In their capacity as the Deputy Commissioner and Senior Superintendent of Police (Operations), Respondents No 1 and 2, respectively, were neither assets nor stooges of security agencies.
"They cannot hide behind members of intelligence or security agencies when found liable for dereliction of the duty, illegal conduct and obstruction of justice."

The judgment said that it was not the intelligence operatives or even ministers, who had authority to generate requests for issuance of detention orders that respondents No 2 and 4 did, adding that and securities agencies had no power to issue the detention orders that respondent No 1 issued.

"If the demand for issuance of detention orders was illegal, as was repeatedly held by this Court in almost two dozen judgments setting aside detention orders passed by DC Irfan Memon, he was required by law to refuse issuing such orders even if asked to do so by a higher authority."