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November 21, 2019

The right to protest


November 21, 2019

The recent Azadi March and then a 13-day sit-in at Peshawar Mor, Islamabad by Maulana Fazlur Rehman and his followers caused a huge inconvenience to the people of Islamabad and Rawalpindi. Privately managed schools were immediately closed for a couple of days causing academic and financial loss.

Protests and processions are the most common and even popular means of expressing political and public grievances. It is a highly cherished right which is recognized and exercised but in a most civilized manner, particularly now more often in several European capitals but without causing even the loss of a penny to private and public property. It is indeed incredible that even in changed times, leaders find followers who are willing to sacrifice their time and money, when a common man is struggling to make his both ends meet.

It is (wrongly) believed that protesters have an unlimited constitutional right of protest no matter how difficult and miserable it may make the lives of others. The federal government laid the whole city under siege by placing multi-layers of containers with no plans in place. It remains unclear what the object of this protest was as well as its sudden end. Many conspiracy theories are circulating around.

The constitution of Pakistan recognizes political rights in articles 16, 17 and 19 in the form of freedoms of assembly, association and speech. The constitution, however, sets out clear limits in the same articles guaranteeing those rights. The right to assemble, whose one manifestation is a protest, has to be peaceable, unarmed and not disturb public order.

The right of freedom of speech has its own limits in Article 19. One is free to talk but the speaker must not incite people to an offence. Threatening to overthrow a lawful government by force is an offence under the penal code. An assembly can be declared unlawful under section 144 CrPC after an order in writing.

These are thus limitations placed on the political rights of citizens. There is a corresponding duty on the state to enforce these limitations in the public interest to protect the life and property of other citizens and persons in Pakistan. It has the lawful authority even to use force against protesters to protect life and property.

Again, the events of the recent past have shown that the state and its officials are reluctant to take any action in the fear of prosecution. The immunity given to them by the law has dissipated for multiple reasons particularly when state officials sometimes acted to please their political bosses proving themselves more loyal than the ‘kings’.

With the dismantling of the executive magistracy system, now the civil administration stands paralyzed in the face of any procession and protest. The resort to Article 245 brings the armed forces into the political thicket in the particular context of our vulnerable political system and even the most genuine steps towards protecting the life and state/private property are seen with suspicion.

This right to protest has been the subject of judicial interpretation and decision-making. The Supreme Court of Pakistan in Suo Motu Case No 7 of 2017 held: “The right of assembly is recognized as a right to preserve the democratic order, but it cannot be used to overthrow lawful government. Nor can the right of assembly be used to bring about a revolution or insurrection”. It further held that “The right of assembly, the freedom of association and the freedom of speech cannot be exercised by infringing the fundamental rights of. Without obtaining permission public meetings cannot be held on roads. Nor can a road be used as camping ground or to assemble on indefinitely”.

It laid down correct law but some of the observations made therein became the subject matter of a review by the government. The judgement also did not lay down any guidelines for the exercise of this right or empowering the civil armed forces to act in such situations and reiterating the immunity granted under law.

In a more recent judgement (2018) by the Indian Supreme Court in the Mazdoor Kisan case, after discussing the entire case law on the issue on the right of protest, it held in paragraph 65 “we direct the Commissioner of Police… in consultation with other concerned agencies, to devise a proper mechanism for limited use of the area for such purposes but to ensure that demonstrations, etc. are regulated in such a manner that these do not cause any disturbance to the residents...”

We the people from whose will all state institutions derive their power and privileges hardly find any mention when it comes to protection from aggressive and sometimes dangerous groups exercising their right of protest. The day we the people realize our worth and decide our fate through an independent and fair election accepted by all, a new era will begin. It may have been noticed that mostly protests, processions and long marches in our land relate to political rights of the polarized political lot. These issues can be resolved inside parliament, which represents the people’s will.

Political leadership across the board needs to give solemn commitment that their differences and disputes will only be solved in parliament. This is the highest guarantee for democracy and rule of law emanating from the constitution.

Marches and procession must be held for noble causes like health, environment and rule of law. The state needs to hear those voices and devise policies that will have greater legitimacy and acceptance amongst its people.

The writer is an advocate of the Supreme Court and former additional attorney general for Pakistan.

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