The Faizabad dharna judgment
Earlier this week, the honorable Supreme Court of Pakistan passed its detailed judgment concerning the 2017 Faizabad dharna of TLP, as well as the role of government and intelligence agencies during the course of the said dharna. Authored by the erudite Justice Faez Isa, this judgment of the honorable Court needs deliberate attention of the (various) political parties, members of the media, as well as officials of the concerned State institutions and intelligence agencies. Perhaps most importantly, this judgment must find resonance within the legal fraternity, so that its dicta and directions can be debated and implemented across the various strata of our (fumbling) constitutional enterprise.
Justice Isa, in his prolific writing style, starts the judgment with a brief “background” on the events that transpired in the wake of “change in the wording of the declaration” related to finality of the Prophet (SAWW), enacted through the Elections Act, 2017. He notes how the resulting dharna “effectively paralyzed the cities of Islamabad and Rawalpindi” as a result of which “public’s movement was restricted or altogether stopped” and commuters “could not get to courts, schools, colleges, universities, their place of work, et cetera.” Simultaneously, the judgment observes that “leaders of the dharna intimidated, hurled threats, abused, provoked and promoted hatred”, while “anyone having a grouse against the government” supported them and the “media provided unabated coverage to the TLP.” In the circumstances, the Court took cognizance of the issue under Article 184(3) of the Constitution, declaring that “the matter undisputedly was one of public importance and required the enforcement of the fundamental rights of nearly every citizen.”
During the course of course of hearings, the reports submitted by the Intelligence Bureau, the Ministry of Interior, and IGP Islamabad, “highlighted the illegal actions of the protestors”, and their (repeatedly) broken “promise to relocate to the designated protest areas, namely, the Democracy Park and the Speech Corner.” The court further observes that the “ISI report did not negate the reports submitted by IB, Ministry of Interior and IGP Islamabad.”
The honorable Court noted that, despite all efforts by the government (including use of tear gas and water cannons on the 25th of November, 2017) the protestors could not be dispersed. Consequently, the government “invoked Article 245 of the Constitution”, to call Army in the aid of civil power. But, as observed by the honorable Court, “before the Army was deployed the matter was resolved between the Government and protestors”, who “dispersed” after receiving “payment from men in uniform”.
In the circumstances, the judgment of the honorable Court deliberates upon a wide spectrum of issues emanating from the 2017 dharna, including 1) history of past dharnas/protests, and how the concerned parties have never been proceeded against; 2) the overall ambit and scope of ‘Right to Protest’, under our constitutional dispensation; 3) failure of the Election Commission to proceed against matter relating to funding of TLP; 4) impotence of PEMRA in cracking down against hate speech; 5) prohibition of hate-mongering within the ambit of the Islamic tenor of our Constitution; 6) need for a defined legal/statutory “mandate” of the intelligence agencies; and 7) directions/declarations regarding the abovementioned facets.
Let us start by saying that Justice Isa is absolutely correct in pointing out that “men in uniform” have no business in orchestrating or dissipating political rallies. Also, he is on point when declaring that (some) action should be taken against those responsible for causing public inconvenience, and also that those responsible for the cold-blooded Karachi massacre of May 2007 (including General Musharraf) must be prosecuted. It is equally important to say (unequivocally) that the TLP dharna of 2017 was entirely unjustified (after the government had already enacted the requisite statutory amendment to redress their grievance). And most importantly, Justice Isa must be supported, with all our vigor, in his direction that statutory instruments must be enacted to “clearly stipulate the respective mandates of the intelligence agencies.”
However, while a comprehensive discussion of each of these aspects is beyond the scope of the instant piece, what requires deeper analysis (for now) is the manner in which the honorable Court has defined the ambit of our constitutional right to protest, and the consequences of ‘abusing’ such right. Specifically, let us pause and reflect on the honorable Court’s analysis of past protests/dharnas/gatherings, and its direction (#3) that “protestors who obstruct people’s right to use road and damage or destroy property must be proceeded against in accordance with the law and held accountable.”
In this regard, the judgment of the honorable Court, in its section titled “Previous Protests and TLP Dharna”, recounts two previous incidents of public protest: 1) “12th May, 2007 Karachi Massacre” during the Lawyer’s Movement, and 2) “2014 dharna by PTI-PAT at Islamabad”. Specifically, Justice Isa notes that perpetrators of the May 2007 event “were not punished” and even after a (judicial) “Inquiry Commission had rebutted PTI’s allegations, no adverse consequences followed”. Consequently, “emboldened” by this (past) lack of “consequences”, participants of the TLP dharna ignored the law (e.g. DC’s imposition of section 144 Cr.PC.), “destroyed property worth 163,952,000 rupees” and caused “nearly all economic activity in the country” to come to a “virtual standstill”, which per day, caused a GDP loss of “88,786,180,821 rupees”, and should be compensated by someone (the perpetrators).
Makes perfect sense. And the State should initiate the necessary action in this regard.
However, what Justice Isa’s judgment does not elucidate is whether the same principles should also apply to the Lawyer’s Movement. Wasn’t section 144 of Cr.PC imposed back then? Should we start calculating the total damage done to the economic activity in Pakistan, as a result of the Lawyer’s Movement? What about the blocking of Mall Road on every Thursday, for almost two years? And, of course, the consequent hindrance in getting to the Courts, or hospitals or schools? What about the constitutional right to “move freely” on the GT-Road, during the 2009 lawyer’s Long March? Should the Bar Councils be charged this bill?
And, while on the point of past protests, what about the one Nawaz Sharif did, in his ‘GT-Road Rally’? Should that bill, including loss of GDP, be charged to the former Prime Minister? Perhaps through some judgment (in the future), the honorable Court could clarify whether there is a constitutional distinction between protests/dharnas/rallies that are short-lived, and those that last for longer? If so, how long a period of disruption is required, before the damages start to accrue to the protesting party?
There is no cavil with the fact that the TLP protesters purposefully ransacked private and governmental property (for which they should be prosecuted). But some damage to public property is perhaps unavoidable in all sizeable public protests. Is all such damage chargeable to the protesting party?
Perhaps the honorable Court could clarify whether this means that the lesser privileged classes of our society (e.g. beggars, daily wagers, brick-kiln workers, farmers, etc.) cannot protest or block a road – simply because they cannot foot the resulting bill of (unavoidable) damages? What about the time when a group of blind governmental employees had blocked the Mall Road in Lahore? Should their protesting be measured in terms of their ability to pay? Should all citizens first buy a ticket to whatever is the designated area of protest (outside the city), and then hope that the government will heed to their voices, chanting slogans in an open field? Or should, instead, the State be footing the bill of people’s constitutional right to protest? Is that not (partly) what our taxes are meant for?
Furthermore, the honorable Court’s judgment declares that the “right to assembly” cannot “be used to bring about a revolution or insurrection”. And that “without obtaining permission, public meetings cannot be held on road.” This, very respectfully, requires further clarification from the Court. Why can a protest not aspire to become a revolution? Is ‘revolution’ not the very climax/dream of every individual who exercises the right to assemble and protest? Also, if obtaining governmental permission becomes a prerequisite to gathering on the road, would it not chill all protests, almost extinguishing this constitutional right? If for no other reason, then simply because the government is exactly who the protestors are (frequently) complaining against. Of course there should be (reasonable) restrictions on the protestors to not inconvenience other citizens; but does that mean that prior governmental permission is mandatory in all instances?
The honorable Court’s judgment on Faizabad dharna, in its entirety, aims to create a more accountable society. One in which the military does not dabble in politics, street power is not employed to hold the State hostage, and people are prosecuted for their violations of the law. However, it is hoped that this judgment will not be used to chill the constitutional right to gather and protest. That, certainly, could not be the purpose of the honorable Court’s judgment.
The writer is a lawyer based in Lahore. He has an LL.M. in Constitutional Law from Harvard Law School.