LAHORE: The Lahore High Court (LHC) held that without the sanction of law, no policing powers are available nor could be extended to the executive to restrict or deny constitutionally guaranteed rights including the right to receive and utilise foreign funding/ contribution.
The court allowing a petition of the Human Rights Commission of Pakistan (HRCP), declared the “Policy for Local NGOs/ NPOs Receiving Foreign Contribution-2022” as invalid and of no legal effect and observed that the impugned policy fails to meet the conditions prescribed for encumbering the qualified rights, extended in terms of clause (a) of Article 18 of the Constitution.
The policy was intended to regulate and enhance the effectiveness of foreign funding being received, availed, and utilised by Non-Profit Organizations (NPO) and Non-Governmental Organisations (NGOs).
The court on the question of sustainability of incumbent policy, said evidently approval of the federal cabinet was secured, but the absence of sanction of law continues to haunt the policy.
The court said the restrictions/ limitations introduced through the policy without the sanction of law are not sustainable under the Constitution.
The court observed that relying upon the Rules of Business 1973 for claiming authority to frame the police is misplaced, which does not confer any authority/ power to frame the policy without the availability of delegated legislative powers.
The court conspicuously said the policy contained no reference to any law, authorising the federal cabinet to frame and introduce it.
The court said a policy, in the absence of law or legislative authorisation the sanction cannot be acknowledged as a vehicle to restrict exercise and enjoyment of qualified fundamental rights. The court added that executive authority cannot expropriate the rights through the policymaking mechanism unless policy is hedged by law.
The court observed that unless a policy is hedged by legislative instrument/ statutory law, it cannot be enforced to prejudice rights granted under the constitutional mandate. The constitutional scheme does not envisage the exercise of legislative powers by the federal cabinet unless such power/ authority is exercised under the authority of the legislature, the court added.
The court said an act of policymaking, in the absence of legislative authorisation, manifests encroachment in the legislative domain vis-à-vis the requirements prescribed under the qualifying provision of law and the Constitution. No prerogative/ authority could be extended to the federal cabinet to curtail fundamental rights through executive action, upon framing of policy unless such action is backed by law, the court added.
The court said the policy, claiming force of law, can be framed by the executive provided it is made under the authority of parliament, but not otherwise. The authority of law is conspicuously missing, the court added.
The court said the policy, conspicuously, has extended a superintending role for the security agencies whose designation remained unidentified.
The court said, the role proposed for the security agencies through the policy, having no force of law, manifests commission of gross illegality, unreasonableness, and unwarranted intrusion in the exercise of permissible fundamental rights.
The court said, no leeway could be conceived or extended to the security agencies, to act as an instrumentality of the executive, when no legislative authorisation was available with the executive to frame the policy.
Allowing superintendence by the security agencies, without the backing of law or requisite legislative authorization, negates the principle and practice of constitutional/ parliamentary democracy, the court concluded.
Copyright Business Recorder, 2024
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