ISLAMABAD - The Islamabad High Court (IHC) will Tuesday (tomorrow) resume hearing in two Intra Court Appeal (ICA) against a single bench’s verdict wherein it had nullified Rule 265 of the Jail Rules, which imposes a ban on political discussions by prisoners.
A Division Bench of IHC comrising Chief Justice of IHC Justice Aamer Farooq and Justice Saman Rafat Imtiaz will conducted hearing of the ICA moved by the Punjab Government and Chief Commissioner Islamabad. Previuosly, the division bench had refused to immediately suspend the verdict of a single bench of IHC comprising Justice Sardar Ejaz Ishaq Khan. The bench had issued notices to Pakistan Tehreek-e-Insaf (PTI) leader Sher Afzal Marwat.
In this matter, Marwat filed the petition praying for Rule 265 of the Pakistan Prison Rules, 1978, adopted by the Province of Punjab, to be declared ultra vires for placing a blanket ban on political discussions by the prisoners during their meetings with their visitors.
In his written order, Justice Ishaq noted, “This petition is allowed and the underlined language in Rule 265 of the Pakistan Prison Rules, 1978, appearing in paragraph 1 above, is declared ultra vires.” It added that the occasion for this petition arose when the jail authorities invoked Rule 265 in defence of contempt petitions filed earlier upon violation of the orders of this Court in earlier writ petitions seeking directions to the prison authorities to let the petitioners meet Imran Khan at the prison.
The Rule 265 says; “Superior class prisoners shall be allowed to write one letter and have one interview weekly. Both the letter and interview are interchangeable. On urgent occasions such as death or serious illness in a prisoner’s family, this rule may be relaxed at the discretion of the Superintendent. The number of persons who may visit a prisoner at any given time should be limited to six. The discussion of political matters shall not be allowed at these interviews. The subject matter of all letters shall be strictly limited to private affairs and shall not contain any reference to prison administration and discipline, other prisoners or politics. Publications of matters discussed at interview or of the substance of letters received from prisoners shall entail the withdrawal or curtailment of this privilege.”
The IHC bench mentioned in its judgment that despite notice of almost 3 months, the Punjab Government did not file a reply. Per the order dated 14.06.2024, read with the order dated 06.09.2024 (the contents whereof may be read as integral part of this judgment), the judgment was reserved when 3 months after notice the Punjab Government turned up on 06.09.2024 without a reply and tendered a hyper-technical objection centered only on the allegedly wrong description of the agency through which the Government of Punjab was to be served with the process of this Court. The judgment was therefore reserved on that date, finding the Punjab Government rather reticent in coming forward in defence of Rule 265.
It further said that Section 59 of the Prisons Act confers rules-making power on the Provincial Government, providing that “[T]he Provincial Government may make Rules consistent with this Act”. However, no provision in the Prisons Act can be found that either prohibits political discussions between a prisoner and his visitors or that permits a blanket ban over any specific content of the conversation between a prisoner and his visitors or the letters written by a prisoner.
Justice Ishaq said, “This Court has not been persuaded by the respondents that an implied power exists to ban political discussions, for such an implication must be rooted in some express provision of the Act regulating the content of communications and cannot be just plucked out of the Act that says nothing of the kind. The sweeping counter-argument that political discussions can disrupt discipline in the prisons is just empty rhetoric, and deserves no more respect than arguments premised on the hackneyed expressions of “national security concerns” used often as the mask for repressive measures.”
“We cannot let the doctrine of implied powers go haywire, for then a ban on prisoners being fed well to prevent them acquiring enough strength to overpower a prison officer would also be a logical equivalent for such exercise of implied power without sanction therefor under the parent statute,” maintained the judge.
He added, “Therefore, finding no sanction under the Act under which Rule 265 is made, I find the blanket ban on political discussions and on letters with references to political matters to be ultra vires the Prisons Act, 1894.”