ISLAMABAD  -   The Supreme Court on Wednesday ruled that a person issuing an edict, which harms another or puts another in harm, must be criminally prosecuted under the Pakistan Penal Code (PPC), the Anti-Terrorism Act, 1997 and the Prevention of Electronic Crimes Act 2016.

Issuing the judgment in a suo motu case regarding Faizabad sit-in, staged by Tehreek-e-Labbaik Ya Rasool Allah (TLYR) under the leadership of Khadim Hussain Rizvi, the top court further ruled that the protesters who obstruct people’s right to use roads and damage or destroy property must be proceeded against in accordance with the law and held accountable.

In 2017, the TLP had announced its countrywide protests leading to Faizabad sit-in after the previous PML-N led federal government amended clause of oath and undertaking regarding finality of Prophet (PBUH) while introducing the Election Act 2017.

The sit-in of TLYR, demanding removal of then law minister, was prolonged for more than three weeks effectively paralysing twin cities after which the top court took cognizance while invoking Article 184(3).

The judgment in the suo motu case, heard by a two-judge bench comprising Justice Mushir Alam and Justice Qazi Faez Isa, was reserved on November 22 last year.

The top court directed the police and other law enforcement agencies to develop standard plans and procedure with regard to how best to handle rallies, protests and dharnas. “We direct the federal and provincial governments to monitor those advocating hate, extremism and terrorism and prosecute the perpetrators in accordance with the law,” it added.

Justice Isa observed that every citizen and political party has the right to assemble and protest provided such assembly and protest is peaceful and complies with the law imposing reasonable restrictions in the interest of public order.

“The right to assemble and protest is circumscribed only to the extent that it infringes on the fundamental rights of others, including their right to free movement and to hold and enjoy property,” he added.

Regarding the role of Election Commission of Pakistan (ECP) on registration of TLYR’s political wing Tehreek-e-Labbaik Pakistan (TLP) as political party and non-provision details regarding source of funds, the top court observed that if a political party does not comply with the law governing political parties then the ECP must proceed against it in accordance with the law and all political parties have to account for the source of their funds in accordance with the law.

“The state must always act impartially and fairly. The law is applicable to all, including those who are in government and institutions must act independently of those in government.”

The judgment ruled that the broadcasters, who broadcast messages advocating or inciting the commission of an offence during sit-in days, violated the PEMRA Ordinance and hence must be proceeded against by PEMRA in accordance with the law.

Likewise, “those spreading messages through electronic means which advocate or incite the commission of an offence are liable to be prosecuted under the Prevention of Electronic Crimes Act, 2016,” it added.

When the instant case was commenced, both in the federation and the Province of Punjab, the governments were of PML-N with Muhammad Nawaz Sharif as the Prime Minister and Ashtar Ausaf Ali as the Attorney General for Pakistan (AGP).

After the general election of July 25, 2018 both these governments were replaced by the Pakistan Tehreek-e-Insaf (PTI) and Imran Khan became the Prime Minister and Anwar Mansoor Khan became AGP.

“Anwar Mansoor Khan, the law officers of Punjab and those of the Capital Territory, representing PTI’s governments, stood by the reports which had been submitted during the tenure of the PML-N governments,” Justice Isa observed.

The judgment noted that before the Army was deployed; invoking Article 245 of the Constitution the matter was resolved between the government and the protesters on the night of November 26, 2017 and the TLP and its supporters who received payment from men in uniform dispersed.

Justice Isa made observations on May 12, 2007 Karachi Massacre, 2014 sit-ins of PTI and Pakistan Awami Tehreek (PAT) on the application filed by a local advocate of Islamabad drawing attention of top court towards inconsistent approach of State towards these protests.

Justice Isa said that when the state failed to prosecute those at the highest echelons of government who were responsible for the murder and attempted murder of peaceful citizens on the streets of Karachi on 12th May, 2007 it set a bad precedent and encouraged others to resort to violence to achieve their agendas.

Justice Isa observed that the bench wanted to understand the difference in approach for May 12, 2007 Karachi massacre, the 2014 dharna by PTI-PAT in Islamabad and the TLP Faizabad Interchange dharna by TLP.

Regarding May 12, 2007 Karachi Massacre, Justice Isa lamented that the Muttahida Qaumi Movement (MQM) and its leader Altaf Hussain supported former military ruler General Musharraf.

“Incidentally, the shipping containers used to block roads were brought from ports, which were under the domain of the Federal Minister incharge of ports, a nominee of the MQM.”

Regarding 2014 sit-in by PTI-PAT at Islamabad, Justice Isa said that the PML-N, as a consequence of the continuous pressure, agreed to the demand of PTI to inquire into the conduct of the general elections of 2013.

The commission found: “the 2013 general elections were in large part organized and conducted fairly and in accordance with the law”. The Commission’s findings were not disputed by PTI, the judgment stated.

“Though the findings of the Inquiry Commission had rebutted PTI’s allegations no adverse consequences followed. PTI’s leadership did not even tender an apology, let alone clean up the area or pay to clean and restore it. Instead PTI received a lot of free publicity,” he observed.

“The leadership of TLP must have noted that despite the daylight slaughter of innocents on the streets of Karachi on May 12, 2007 its principal conspirators and beneficiaries were not punished.”

Regarding the failure of the State to handle the issue, Justice Isa observed that the TLP and its followers were determined to disrupt civic life. “But, to meet this challenge there was little preparation or preplanning by the government, the police and other law enforcement agencies. No plan was apparently prepared to attend to the different eventualities likely to emerge50. The lack of preparedness to deal with similar events is most likely the situation even today.”

It added that the citizens of Pakistan have reposed their trust in the State to ensure that their fundamental rights are upheld. “The State however let them down.”

“If anyone propagates, “hatred or contempt, or excites or attempts to excite disaffection towards the Federal or Provincial Government”5 they commit the offence of sedition for which the punishment is imprisonment for life.”

The judgment stated that according to the ECP the TLP is registered on the name of a resident of the United Arab Emirates holding a National Identity Card for Overseas Pakistanis (NICOP). 

The ECP may submit a reference to the Federal Government under section 212 of the Elections Act 2017 if a political party is a foreign aided political party or has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan or is indulging in terrorism, the judgment observed.

The top court observed that though TLP’s leadership created hatred amongst people, abused, threatened and advocated violence and a private TV Channel projected and supported them but PEMRA did not take action. “PEMRA abdicated its statutory duty, a duty which it was legally obliged to fulfil.”

On the other hand, Justice Isa also came forward for protecting the fundamental right of freedom of expression observing that PEMRA did nothing against interruption, interference and blocking of transmission of private TV channels in certain areas.

He made glaring observations on the censorship stating, “Overt and covert censorship is unconstitutional and illegal. Nebulous tactics, such as issuing advice to self-censor, to suppress independent viewpoints, to project prescribed ones, to direct who should be hired or fired by media organisations is also illegal.” 

Justice Isa in the judgment also referred the resolutions of Pakistan Federal Union of Journalists (PFUJ) and the Council of Pakistan Newspaper Editors (CPNE) regarding censorship. 

“No one, including any government, department or intelligence agency can curtail the fundamental right of freedom of speech, expression and press beyond the parameters mentioned in Article 19 of the Constitution. Those who resort to such tactics under the mistaken belief that they serve some higher goal delude themselves. Pakistan is governed by the Constitution and, “Obedience to the Constitution and the law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being in Pakistan”,” the judgment observed.

“Cable operators who stopped or interrupted the broadcast of licenced broadcasters must be proceeded against by PEMRA in accordance with the PEMRA Ordinance, and if this was done on the behest of others then PEMRA should report those so directing the cable operators to the concerned authorities,” the top court ruled.

The complete 43-page judgment authored by Justice Qazi Faez Isa can be read at official website of the Supreme Court.