ISLAMABAD: The much-hyped pronouncement by the government about the delegation of power to the interior secretary to file sedition charges against those accused of maligning the state and its institutions is of no legal consequence.
Legal experts The News talked to say neither the prime minister nor the federal government can delegate any power, and that too on a serious issue like sedition, to an individual.
The change in procedure was publicised by the government a day before a public meeting of the Pakistan Democratic Movement (PDM) at the Minar-e-Pakistan ground in Lahore, probably with the objective of instilling fear in its leaders and reminding them that sedition cases would now be quickly filed if they spoke against the state or its institutions.
“The prime minister or the federal government can’t take any decision that is the authority of the cabinet, according to the Supreme Court judgment in the Mustafa Impex case,” prominent lawyer and former president of the Supreme Court Bar Association Kamran Murtaza said.
He said the practice of seeking consent or approval of ministers on any issue by circulation was a joke because no cabinet member would dare to differ with the decision of his boss. “This way, no discussions or deliberations whatsoever take place -- which are possible during formal cabinet meetings-- and the ministers just put their signatures on the papers sent to them, stamping approval.”
Another noted lawyer Kashif Malik told The News that if the federal government wants to permanently delegate power to the interior secretary to file sedition charges against anyone, it would have to first amend the Pakistan Penal Code (PPC), otherwise assigning such authority to an official was meant to frustrate the law and the Mustafa Impex case verdict.
He said if the official argument is accepted, then the federal government can delegate powers of making top appointments in statutory and autonomous bodies to the establishment secretary, which, however, can’t be done. “The federal government means the federal cabinet for the purposes of taking decisions when it is written in the law that a certain decision would be taken by the federal government. The federal cabinet has no power to delegate any authority to anyone in the absence of law.”
Kashif Malik said that sedition was an offence against the state and is not an ordinary crime. Therefore, he said, every time the federal or provincial government resorts to this draconian provision, the respective cabinet has to give approval to such a prosecution. “It can’t be a blanket delegation of power to any individual.”
As an example, Kashif Malik cited the case of the Capital Development Authority (CDA) Ordinance which provides specific powers to the chairman that he can exercise. But when there is no such legal support, neither can any power be exercised nor can any authority be delegated to anybody, he said. “Therefore, the change made by the government is of no value and is intended to defeat the spirit and intent of law.”
The change projected by the federal government does not speak about the delegation of such power to any official as far as the provincial administrations are concerned. Under the law, such a complaint has to be submitted by the federal or provincial government, otherwise no court is permitted to try those facing such sedition charges.
Section 196-A of the Criminal Procedure Code (CrPC) says: “No court will take cognisance of the offence of criminal conspiracy in a case where the object of the conspiracy is to commit either an illegal act other than an offence, or a legal act by illegal means unless upon complaint made by order or under authority from the federal or the provincial government concerned or some officer empowered in this behalf by either of the two governments, or in a case where the object of the conspiracy is to commit any non-cognisable offence, or a cognisable offence not punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the provincial government or officer in-charge of the prosecution in the district empowered in this behalf by the provincial government, has, by order in writing, consented to the initiation of the proceedings.”
There are several judgments of the superior courts where they have dismissed sedition proceedings and quashed the FIRs against the accused. They relate to Makhdoom Javed Hashmi, Salman Taseer and Tehmina Daultana. An Islamabad High Court (IHC) verdict had laid the principles necessary for the cognisance of offences like sedition, criminal conspiracy and statement conducing public mischief.
It was officially announced on Saturday that the federal cabinet has authorised the interior secretary to register prosecution for offences against the state on behalf of the central government, and that there would be no need to send a summary to the federal cabinet for approval every time.