KARACHI: The Sindh High Court (SHC) on Tuesday set aside the detention orders of 10 workers of the Pashtun Tahaffuz Movement (PTM) and five activists of the Altaf Hussain-led Muttahida Qaumi Movement, commonly known as MQM-London, under the Maintenance of Public Order (MPO) Ordinance for being without lawful authority.

Two division benches of the high court passed such orders in Karachi and Hyderabad.

In Karachi, a two-judge bench headed by Justice Adnan Iqbal Chaudhry ordered the release of 10 PTM and two MQM-L activists, while in Hyderabad a division bench comprising Justice Khadim Hussain Tunio and Justice Arbab Ali Hakro granted freedom to three MQM-L workers.

The bench headed by Justice Chaudhry observed that the home secretary had no lawful authority to issue such detention orders under the MPO.

The detainees and their relatives had moved the SHC, impugning the 30-day detention orders issued by the home department on the recommendation of the Sindh police chief last month under the MPO.

The bench noted that impugned detention orders were issued in the backdrop of FIRs lodged by the state against the detainees and other workers of the PTM and MQM-L for organising political rallies without permit and blocking main road.

The lawyers for the petitioners argued that 10 detainees had been confined simply because they were activists of the PTM even though they were not present in the alleged political rally while other two had been detained for being workers of the MQM-L even though they got bail in the FIR.

Questioning the maintainability of those petitions, an assistant advocate general (AAG) contended that Sections 3(6) and 3(6a) of the MPO enabled detainees to make a representation against the order of detention to the detaining authority and thus an alternate remedy being available.

However, the bench said that at the same time it was conceded that after issuing the detentions orders, the home secretary took no further step to “communicate” the grounds of detention to detainees as required by Article 10 (5) of the Constitution and Section 3(6) of the MPO and it appeared that detainees or petitioners were left to acquire copies of the detention orders themselves.

It also noted that the ground for the detention in all these petitions was identical that the IG had recommended their detention for allegedly instigating and provoking public to block roads and organise sit-ins which might disturb peace and tranquility as well as could create a serious law and order situations.

Apart from the comments of police officers that the detention orders were issued in the backdrop of the aforesaid FIRs, the only material placed before the court by the home department was a letter received from the additional IGP seeking preventive detention of detainees for the reason set out in the detention orders, it added.

When the bench asked an AAG whether the impugned orders had the backing of the provincial cabinet, he contended that in 2020, the cabinet had delegated to the home secretary the power to issue detention orders under the MPO.

“But neither the Provincial Cabinet nor the AAG Sindh seemed to be aware that Section 26 of the MPO Ordinance which had previously enabled the delegation of powers, and that too only to the District Magistrate, had been omitted for the Province of Sindh along with sub-section (2) of section 3 vide Sindh Laws (Amendment) Ordinance, 2001, published in the gazette dated 28-11-2001, and which Ordinance came to be protected legislation under Article 270AA of the Constitution until repealed,” the bench in its judgement noted.

It also observed that the court had not been informed of any subsequent repeal or amendment, and thus cabinet could not have invoked Section 26 of the MPO Ordinance to delegate its powers to the home secretary.

It may be recalled that earlier, the SHC had also set aside the detention orders of several workers of the MQM-London on identical grounds while petitions of many other workers are fixed for hearing on Aug 3.

Meanwhile, the MQM-London in a statement said that eight more party workers, including two minors, who had been picked up on July 9 for taking out a rally in Korangi in support of the MQM founder, remanded to prison as they were shown arrested on Monday and petitions seeking their whereabouts were already filed before the SHC.

The petitions against the detention of 64 party activists under the MPO are also pending before the SHC, it added.

Published in Dawn, Aug 2nd, 2023