Sept 6, 2024
By Ahmed Saeed
LAHORE:
The Lahore High Court has overturned the federal government’s 2022 policy on foreign funding for local NGOs, ruling in favour of petitions filed by the Human Rights Commission of Pakistan (HRCP), seeking its annulment.
A single-member bench of Justice Asim Hafeez declared “the policy unlawful, invalid, and of no legal effect.”
Approved by the federal cabinet in November 2022, the ‘Policy for Local NGOs/NPOs Receiving Foreign Contributions’ was designed to regulate and streamline the foreign funding process for non-profit organisations (NPOs) and non-governmental organisations (NGOs).
The policy mandated that only an authorised officer, not below the rank of BS-21, from the Ministry of Economic Affairs (MoEA) could approve or reject MOU requests from NPOs and NGOs. It also required security agencies to grant clearance before any MOU could be signed.
Justice Hafeez, in his 16-page judgment, declared that the policy fails to meet the conditions prescribed for encumbering the qualified rights, extended in terms of clause (a) of Article 18 of the constitution.
Article 18 guarantees freedom of trade, business, or profession. However, clause (a) of Article 18 empowers the state to regulate any trade or profession by a licensing system.
The court noted that 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.
“Action of the Federal Cabinet lacked sanction of law and legislative authorization. Unless Policy is hedged by legislative instrument/statutory law, it cannot be enforced to prejudice rights granted under constitutional mandate,” the order said.
The order deplored that the exercise of power in the absence of any legal framework is tantamount to an abuse of power.
“Assumption and exercise of powers, without legislative authorization, for regulation of trade through licensing system in garb of clause (a) of Article 18 of the Constitution, constitutes patent abuse of executive authority and violation of constitutional scheme of trichotomy of powers,” the verdict read.
The order stated that the “Executive/Government has to follow the mandate of law, either by resorting to the options available under existing legal framework or approach the legislature for seeking fresh legislation – subject to legislative competence.”
The court declared that no policing powers, without the sanction of law (either through primary or subordinate legislation), are available nor could be extended to the executive for the purposes of restricting or denying the constitutionally-guaranteed rights of the petitioners, including the right to receive and utilize foreign funding/contribution.
The judgment noted that the policy can be framed by the executive provided it is made under the authority of Majlis-e-Shoora (Parliament), but not otherwise.
The court further stated that no prerogative/authority could be extended to the federal cabinet to curtail fundamental rights through executive action.
“Policy manifests exercise of colorable authority, overlooking the principle that ‘What cannot be achieved directly cannot be achieved indirectly. Hence, the restrictions/limitations introduced through the Policy without the sanction of law are not sustainable under clause (a) of Article 18 of the Constitution,” the order added.
The court also set aside the powers granted to security agencies, empowering them to scrutinise NGOs.
“… 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 order said.
The order stated that no leeway could be conceived or extended to security agencies, to act as an instrumentality of the executive, when no legislative authorisation was available with the executive to frame the policy.
“In fact, 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 Federal Cabinet is constitutionally obligated to adhere to the principle of supremacy of the legislature,” the order said.