ISLAMABAD: The judgement of the Islamabad High Court (IHC) that stripped the deputy commissioner of his powers to detain individuals under the Maintenance of Public Order (MPO) law, has rendered the capital administration dysfunctional since the court order also declared the framework to govern the city ultra vires.

Sources in the chief commissioner’s office said that the Offices of the Registrar Cooperative Societies, Board of Revenue, Labour Department etc have become dormant in light of the judgement. They said an appeal against the judgement would be filed before the division bench this week.

Before 1980, Islamabad was governed by a naib-tehsildar of the Punjab government. The order of 1980 introduced the concept of a provincial government but without any chosen representatives.

According to senior lawyer Raja Inam Ameen Minhas, the chief commissioner was no longer the administrator of the federal capital unless the IHC’s order was suspended or set aside.

In light of the order, people are facing difficulties at the district administration offices regarding their routine work, as the officials have refused to entertain their applications, saying the admin is no longer legally empowered to process their correspondence.

Commissioner’s office to file intra-court appeal against the verdict this week

Senior lawyer Kashif Ali Malik said that the IHC protected the previous orders and acts of the chief commissioner or district administration, but the judgement specifically mentioned that the court order would be applicable prospectively.

The deputy commissioner Islamabad when contacted, replied that the order took away his powers under the MPO, while presidential orders were related to the chief commissioner and he may be approached.

IHC ruling

Justice Babar Sattar last week issued an 83-page judgement on the plea of PTI leader Sheharyar Afridi and took away the powers of the DC to issue detention orders under the MPO.

Justice Sattar also declared “PO [presidential order] No. 18 of 1980, PO No. 2 of 1987, PO No. 2 of 1990 and notifications issued under-declaring the administrator or chief commissioner Islamabad to be the provincial government for purposes of ICT are ultra vires of the Constitution and therefore declared to be void”.

Presidential Order 18 of 1980 “conferred executive authority of the federation to an administrator for the Islamabad Capital Territory, later designated as a chief commissioner Islamabad”.

Presidential Order No. 2 of 1987 provided that the president may, at any time, by order in writing direct that the executive authority of the federation in respect of ‘Islamabad Capital Territory’, in so far as it relates to any matter specified in the order, shall be exercised by such authority and the chief commissioner was designated to govern the federal capital. The order of 1990 further empowered the chief commissioner.

The judgement asked the federal government to govern Islamabad till the rules to operate the provincial government were finalised. The court also set a three-month deadline to frame the rules.

The verdict also cited the 2016 Supreme Court Mustafa Impex case, which requires decision or exercise of authority by the government concerning Islamabad Capital Territory (ICT), whether as federal or provincial governments by the federal cabinet as collegium.

The judgment also cited the population census of 2023 and said approximately 2.364 million citizens live in the federal capital. Article 1(2)(b) of the Constitution identifies ICT as the federal capital that does not form part of any province.

But the State claims that pursuant to Presidential Order 18 of 1980 – enacted by General Zia-ul-Haq, who abrogated the Constitution after imposing Martial Law in 1977, and usurped the authority of the State and arrogated it to himself – read together with Presidential Order No. 2 of 1987 and Presidential Order No. 2 of 1990, the Chief Commissioner Islamabad – a civil servant serving in Basic Scale-20 – is one-man provincial government for ICT and its denizens.

The judgement also explained that Article 99 of the Constitution creates a mandatory obligation for the federal government to frame rules for the allocation of its business and such business of the federal government includes the power, duties and functions to be discharged in its capacity as the provincial government.

The declaration of the high court that the federal government was also the provincial government for ICT and the chief commissioner was not the provincial government for ICT would only apply prospectively and would not affect past and closed transactions.

The judgement was clear when it explained that notwithstanding the time frame provided for framing appropriate Rules of Business for purposes of ICT, any decision 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.

Published in Dawn, January 12th, 2024