Exercise of power for detaining Imran Riaz Khan, as disclosed in the aforementioned Order, was through Notification bearing No. SO(JUDL-III)2-1/2017 dated 20 July 2017 issued by the Home Department, Government of Punjab. Similarly, others have been detained under the guise of maintaining peace and tranquility by deploying the Ordinance of 1960, for example, 17 people were ordered to be kept in custody for 30 days vide Order bearing No. RDM/373, dated 10 May 2023, issued by the Deputy Commissioner, Lahore.
Despite often being the victims of preventative detention themselves, there seems to be no hesitation among Pakistan's political class to protect preventative detention laws, which are a fundamental danger to the citizens of Pakistan, for whom the Constitution was framed.
What is Preventative Detention?
Preventative detention, which is different from punitive detention, allows the state to detain a person as a precautionary measure to prevent people from acting in a manner prejudicial to public safety or the maintenance of public order (Ghulam Ahmad, PLD 1988 Sindh 237). The term ‘public order’ is construed in the ordinary context as being synonymous with public peace, safety and tranquillity.
Public order is an element needed in any organized society, and no association can flourish in a state of disorder (Cantwell, (1940) 310 US 296). It refers to public order of local significance, as distinguished from national upheavals such as revolution, civil strife and war, and is equally distinguishable from the concept of ‘law and order’ and of ‘security of state’ (Dr. Ram Manohar Lohia, AIR 1966 SC 740). Law and order represent the largest circle, within which is the next subset representing public order and the smallest circle represents security of state.
Hence, an activity which affects law and order may not necessarily affect public order and an activity which may be prejudicial to public order may not necessarily affect the security of the state (Dr. Ram Manohar Lohia supra; Arun Ghosh, AIR 1970 SC 1228). Therefore, public order is distinguishable from limitations imposed on Freedom of Association under Article 17 of the Constitution (Arshad Ali Khan, 1994 SCMR 1532). Further, resort to preventive measures is useful only before commission of an offence and not afterwards, for criminal case is to be registered in the latter (Mian Khan, PLD 2016 Peshawar 89).
Section 3 of the Ordinance allows detention of an individual for 3 months, without trial. This, on the face of it, seems to violate the presumption of innocence, which delineates that every man shall be deemed to be innocent until proven guilty and without a trial, no man shall be deprived of life and liberty. The modus operandi of the Ordinance seems to be that of the part where the tempestuous Queen, in Lewis Carroll's Alice in Wonderland, postulates that Alice be "Sentenced First, Verdict Later."
Criteria for issuing Detention Orders
There is no cavil to the proposition that the Ordinance infringes drastically on the life and liberty (Article 9) of individuals (Hakim Ali, PLD 1965 (W.P.) Lahore 418), as such, it is to be construed strictly (Jalal @ Jaja, 1990 P.Cr.L.J 1529 Lahore; Sultan Shah, 2004 P.Cr.L.J 1604 Sindh). Criteria for issuance of an order under Section 3, through said narrow construction, was laid down by the Supreme Court in Amatul Jalil Khawaja, PLD 2003 SC 442, which provides that the detaining authority must provide evidence to show the necessity for detention; the satisfaction for detention must be established for each ground and the burden of proof lies on detaining authority, who must present all material before the Court (Arbab Akbar Adil, PLD 2005 Sindh 538); grounds of detention should be comprehensive and not vague or indefinite; grounds to be furnished within the prescribed period; and, if one of the grounds is shown to be bad, non-existent or irrelevant, the whole order of detention would be rendered invalid (Ameer Hussain, PLD 2021 Lahore 699; Muhammad Abdaal @ Abdali, PLD 2020 Lahore 471). If the detention order fails to comply with the criteria, it would be violative of Article 9 (Shahid Rasool, 2023 YLR 333 Lahore).
Lawful or illegal detention of protestors?
A perusal of detention orders mentioned above, and others which have been used to detain protesters in recent days, provides that they fail to comply with the criteria laid down in Amatul Jalil Khawaja supra. For instance, in Order bearing No. RDM/373, dated 10 May 2023, it is stated that the reasons for issuance of Detention Order against 17 people was due to “law and order situation” and “Home Department, Government of the Punjab has imposed a ban on holding all kinds of assemblies, gatherings, sit-ins, rallies, processions, demonstrations, jalsas, dharnas, protests or such like other activities within the territorial jurisdiction of Province of Punjab under Section-144 of Cr. P.C. 1898 vide order dated 09-05-2023.” Other grounds mentioned therein by the Deputy Commissioner are vague in general, while all 17 persons have been clubbed together.
Firstly, violation of Section 144 of the Code of Criminal Procedure, 1898 bars the attraction of provisions of MPO (Mst. Misbah, 2007 P.Cr.L.J 1776 Lahore), because commissions of an act in violation of Section 144 is an offence punishable under Section 188 of the Pakistan Penal Code, 1860. This not only demonstrates a lack of application of mind by the authority (Khan Ghulam Qadir Khan, PLD 1962 (W.P.) Lahore 411), but also contravenes Section 24-A of the General Clauses Act, 1897 and ratio of Najam Abbas, 2006 SCMR 496. His lordship, in Mst. Misbah supra went on to admonish the Detention Orders impugned in the case and stated that ‘in all the writ petitions the detention order is nothing but reproduction of one cyclostyle order in a teleprinter manner without attending to the allegations of anti-social or anti-Government activities of each detenu, respectively.’
Astonishingly, a cursory glance over each such detention order, much like Order bearing No. HC/1002 dated 11 May 2023 through which Imran Riaz Khan was detained provides the same, that they are illegal orders, liable to be set aside, be it for the same reasons as mentioned in the preceding paragraph or because the grounds of detention, which must be precise, are not precise, thus the orders can be struck down, or due to the fact that criteria laid down in Amatul Jalil Khawaja case supra have not been followed qua burden on the authority to satisfy each individual ground of detention. Even when one of the grounds is shown to be bad, non-existent or irrelevant, the whole order of detention is to be rendered invalid or alleged offence has already been deemed to be committed by the authority (Muhammad Abdaal @ Abdali supra).
Remedies against arbitrary detention
Remedy against arbitrary detention is provided under the law under Section 491 of the Code and Article 199 (Judicial Review) of the Constitution, namely, Writ of Habeas Corpus. Although objections qua maintainability of Habeas Petitions are often raised, however, the same are misconstrued because freedom and liberty of every citizen is a fundamental right guaranteed under Articles 4 (to be treated in accordance with law), 9 and 10 (safeguard against arbitrary detention); and its infringement is tantamount to violation of Articles 2A (Objective Resolution), 3 (Elimination from Exploitation), 4, 9, 14 (dignity), and 18 (freedom of trade) of the Constitution.
When a person is detained without any just cause, they may invoke the jurisdiction of a Constitutional Court directly, if an order is illegal, without having course to alternate remedy (Mst. Ghulam Sakina, 2021 P.Cr.L.J 1768 Lahore; Mst. Sana Jamil, 2016 P.Cr.L.J 424 Lahore; and, Mubbashar Raza, PLD 2015 Lahore 20). The rationale behind this is that fundamental rights are sacrosanct and are required to be jealously guarded by the Courts (Ismaeel, 2010 SCMR 27).
Furthermore, it is trite that any order passed or action taken in violation or ignorance of law is nothing but a malafide order, amounting to a colorable exercise of jurisdiction, and for acting in such like manner the Home Secretary is liable to be sued for damages and each detenu, if so advise, may file suit for damages against the respective Home Secretary or Deputy Commissioner for keeping them in false imprisonment (Mst. Misbah supra).