ISLAMABAD, Dec 30 (Online): Islamabad High Court (IHC) has issued written order on the petitions against detention of Shehryar Afridi and others under 3-MPO.
Justice Babar Sattar of IHC has issued 82-page written order.
It has been said in the written order federal government holds individual powers under the constitution with reference to federal and provincial laws applicable to Islamabad.
Federal government plays role of both the federal and provincial governments for Islamabad. The use of any decision or powers can be made in Islamabad in collaboration with federal cabinet.
Under article 1-2/B of the constitution Islamabad is federal capital and is not part of any province. Presidential order 18 of 1980 was promulgated by former president Zia ul Haq.
According to the order presidential order 18 of 1980, presidential order 2 of 1987, presidential order 2 of 1990 make chief commissioner of 20 grade officer as one man provincial government.
All the presidential orders and notification which delegate powers of provincial government to chief commissioner for federal capital run contrary to constitution.
The court’s order said all the presidential order and notification which delegate powers of provincial government to chief commissioner for Islamabad are declared null and void.
It was further said in the order federal government should frame rules for use of provincial government powers in Islamabad within three months.
As per court’s orders chief commissioner Islamabad is not provincial government of federal capital.
This decision of IHC will be applicable in future. It will affect previous steps. Only federal cabinet will be entitled to use powers of provincial government in Islamabad.
All the orders of detention which have been challenged are nullified for want of powers of jurisdiction. May 10, 1992 notification under which powers of 3-MPO have been delegated by commissioner to magistrate is declared null and void.
It has been said in the order the powers for use of powers of provincial government in federal capital can be delegated only by federal government.
The decision for acceptance or rejection of request for detention is subject to satisfaction of provincial government. The powers for accepting or rejecting the plea for detention of any person cannot be transferred to any one person. Section 2, 3 of MPO is sheer violation of article 4 and 10 of constitution. Article 4 and 10 of the constitution says no law can be implemented if the process of violating law and order situation does not take place. Arresting some one on the suspicion that he will create law and order situation in future is against the constitution. Issuing orders for arresting any one in the presence of insufficient material falls in the ambit of misuse of powers. .
The order said that five petitions against the issuance of arrest orders by the deputy commissioner are accepted and one is wrapped up.
According to IHC order a copy of this order be sent to secretary cabinet division for implementation of these orders.
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