A FEW days ago the Peshawar High Court allowed a writ petition filed by two brothers who were arrested on the orders of Swabi district coordination officer under section 3 of the Maintenance of Public Order Ordinance (MPO). The administration had claimed that both the brothers, Bazir Khan and Azmat Khan, were notorious car lifters and were involved in cases of car theft and tampering with chassis number of vehicles. The DCO had issued the detention order on the recommendation of the district police officer (DPO) on June 11 for a period of one month.

A two-member bench of the high court headed by Chief Justice Dost Mohammad Khan directed that both of them should be set free and observed that no substantive material was placed on record to substantiate the impugned order of the DCO. The bench observed that if at all criminal cases were registered against them then in that case they were accused of substantive offences and preventive detention of petitioners on basis of same allegations would not be justified in law.

The MPO was promulgated over five-decade ago by the governor of then West Pakistan on Dec 2, 1960, during the martial law of Gen Ayub Khan. Since then this controversial law has regularly been used and misused by successive governments. Even the democratic governments never tried to make this law human friendly and instead they had further enhanced its utilisation.

The law is meant for preventive detention and a person could be detained if his activities are prejudicial to public safety or maintenance of public order. However, it has been considered a panacea for all ills and often being misused by the administration. This law is invoked for a variety of reasons: political rivals have been victimised through it by sitting governments; hoarders and profiteers are being held; gamblers and small time offenders have regularly been detained under it; and, even protesting young doctors have been arrested through this law. Interestingly, a DCO in Peshawar even used the MPO to teach lesson to parents declining to administer anti-polio drops to their children.

Prior to the introduction of the Devolution of Power Plan of General Pervez Musharraf in 2001, the deputy commissioners/district magistrates were empowered by the provincial government under section 26 of the MPO to exercise the powers of issuing detention order under section 3. When the new local government started functioning in Aug 2001, the office of DC was abolished and the home secretary continued to exercise powers under the MPO. Later on, the present provincial government in 2008 delegated certain powers to the DCOs across the province under the MPO. The DCOs have now been empowered under section 3 of the ordinance to issue detention orders of such person who is acting in a manner prejudicial to public safety or maintenance of public order.

From time to time the superior courts have ruled that while invoking the provisions of the MPO the concerned officer has to apply his independent mind instead of issuing detention order on flimsy grounds. The courts have always discouraged issuance of stereo-typed orders without mentioning relevant grounds for detention of a detainee.

Some lawyers appearing for the government in such cases believe that the MPO has to be invoked as the law enforcing agencies (LEAs) have been facing a handicap in dealing with criminals as they are often released on bail by the courts mostly due to lack of evidence. They claim that by delegating the powers to the DCO under the MPO the LEAs are now in a better position to approach him and acquire a detention order against a criminal who cannot be normally placed behind bars.

The MPO has always been considered a controversial law. Initially, under Article 199 (1) of the 1973 Constitution the high court had the jurisdiction that on the application of any person it could make an order directing that a person in custody within the territorial jurisdiction of the court be brought before it so that the court may satisfy itself that he was not being held in custody without lawful authority or in an unlawful manner.

During the government of Zulfiqar Ali Bhutto, as several of his political opponents were detained under the MPO, the said article was amended through the Constitution (Fourth) Amendment Act in Nov 1975 and it was mentioned that a high court shall not make an order for the grant of bail to a person detained under any law providing for preventive detention.

When the high courts continued with entertaining cases of detention under the preventive detentions laws, Mr Bhutto’s government passed the Constitution (Fifth Amendment) Act, in Sept 1976 whereby the powers of courts were further reduced while dealing with cases of preventive detention. Article 199 was further amended and it was mentioned that the high court shall not make an order prohibiting the making, or suspending the operation, of an order for the detention of any person under any law providing for preventive detention.

The bar on courts to order for the release on bail of any person detained under any law providing for preventive detention was retained in the said amendment. Later, the military government of General Ziaul Haq replaced the said sub-clauses of Article 199 with some other clauses dealing with martial law regulations. Finally, those were omitted from Article 199 through the Presidential Order No 14 of 1985.

Now, the high courts have frequently been entertaining petitions related to MPO and also providing relief to petitioners.