IHC declared all presidential orders and notifications that confer the administrator or chief commissioner of the federal capital the powers of the provincial government ultra vires the constitution 
A general view of the Islamabad High Court. — AFP/File
ISLAMABAD: The Islamabad High Court (IHC) has declared all presidential orders and notifications that confer the administrator or chief commissioner of the federal capital the powers of the provincial government ultra vires the constitution.
Issuing a detailed order on petitions against the detention of Pakistan Tehreek-e-Insaf leaders Shahryar Afridi and Shandana Gulzar under the Maintenance of Public Order Ordinance (MPO), the court ordered the federal government to enact legislation for provincial powers within the limits of Islamabad within three months and observed that only the federal cabinet would be able to exercise the powers of the provincial government in Islamabad during the formulation of the Rules of Business.
The IHC’s Justice Babar Sattar held in the 82-page order that sections 2 and 3 of the MPO are in clear violation of articles 10 and 10 A of the Constitution. The court observed that federal government has exclusive authority with regard to implementation of the federal and provincial laws in Islamabad and federal government acts as federal and provincial governments in the capital and any decisions or powers under the law in Islamabad can be exercised with the approval of the federal cabinet.
The court held that all presidential orders and notifications granting the chief commissioner the powers of the provincial government for Islamabad are null and void. The court observed that presidential order 18 was imposed by General Zia-ul-Haq during the martial law by abrogating the Constitution in 1977.
The court observed that the Commissioner Islamabad issued dozens of MPO orders against activists of the PTI in May and all the decisions taken in Islamabad could only be taken with the approval of the federal cabinet. The court observed that the chief commissioner Islamabad was not the provincial government of Islamabad and the chief commissioner Islamabad is considered to be a grade 20 officer and the provincial government to the extent of Islamabad.
The court declared that federal government is also the provincial government for purposes of ICT and the chief commissioner is not the provincial government for ICT.
It further observed that notwithstanding the time frame provided for framing appropriate rules of business for purposes of ICT, any decision that 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.
The court held that impugned detention orders are declared to be coram non judice, without jurisdiction and are set aside for being of no legal effect. The court held that impugned notification of the chief commissioner on May 10, 1992 delegating authority of the provincial government under section 3(1) of the MPO to District Magistrate ICT in exercise of power under section 26 of the MPO is declared to be coram non judice and without jurisdiction. The court also held that such delegation can only be made by the federal government in its capacity as provincial government for ICT, subject to the law laid down by the Supreme Court.
