As a state our response to public protests continues to be informed by the colonial hangover. In the garb of regulation, we have criminalized public protests. Pursuant to the Police Act, 1861, and the Police Order, 2002, District Administration has abundant powers to regulate “conduct, route and time” of processions or assemblies.
It is also entrusted to grant written permissions specifying conditions for such processions or assemblies to maintain public order. In addition, Section 144 CrPC gives power to the District Magistrate, in case of Islamabad, to create an offence: it is extended in the capital from time to time and is often employed to impose a blanket ban on public gatherings. It is not because the Constitution sanctions it but because of the training of our bureaucracy and police that dissent is always sacrificed at the altar of public order.
The broad discretion our executive enjoys to regulate public protests, even to the extent of criminalizing them, comes from the fact that our Constitution does not have a specific provision for protests. Protest as a protected value in our democracy, flows from Article 15; freedom of movement, Article 16; freedom of assembly, Article 17; freedom of association and Article 19; freedom of speech. All these articles are qualified rights and are subject to reasonable restrictions imposed by law. Just what is reasonable and what isn’t is determined by the judiciary, which is both influenced by the climate of the times and precedent, and in a post-colonial country development of law on free speech and public processions has remained sluggish and inconsistent.
The recent opinion rendered by the Supreme Court in CP 19/22 is indicative of the guarded mindset against public protests. In the dissent, one honourable justice penned that there are sufficient grounds to impose contempt on the leadership of the PTI. To even write this, on a political question, when one party is only seeking reelection, is regretful. The law of contempt, another criminal instrument, was not designed to stifle free speech or the right to protest. The majority opinion underscores that a protest is staged at a designated place.
It notes: “In view of [ ] commitments, the Court by its aforesaid order passed on 25.05.2022 directed the Chief Commissioner, Islamabad Capital Territory … to provide the ground located in the area between Sectors H-9/G-9 of Islamabad for the political rally”. Once the commitment was rendered by PTI; what caused it to renege on it remains unclear.
In the past, In SMC 7/2017 [Faizabad Dharna Case], the Court had emphasized: “The right of assembly, the freedom of association and the freedom of speech cannot be exercised by infringing the fundamental rights of others. Without obtaining permission, public meetings cannot be held on roads. Nor can a road be used as a camping ground or to assemble on it indefinitely.” A requirement of a designated place and a prior permission for public protests seems to be borrowed from the criminal law into our constitutional jurisprudence.
There is no specific legislation here that aims to regulate the conduct of both the government and public protesters alike. In the UK, the Public Order Act, 1986 was introduced to control “riot”, “affray” and “violent disorder”. It envisages advance notice of public processions, imposition of certain conditions on public processions and assemblies “to prevent disorder, damage or disruption”. The conditions include directions prescribing the “route or prohibiting the procession from entering a specified place”, “maximum duration of public assembly” or “maximum number of people who may constitute it”.
In the UK, there is a right to peaceful assembly on a public highway “provided it is reasonable, non-obstructive and does not amount to unreasonably impeding the primary right of general public to pass and repass”. There is also a corresponding obligation on the state, as developed in the common law, not to use excessive or disproportional force or act without any rational basis against a peaceful assembly.
At present, our statutory laws and judicial rulings criminalize public protests and give a wide discretionary latitude to the government to control them without any sense of balance for citizens’ constitutional liberties. That the government, any government, would use such discretion in a reasonable manner is naïve to expect. About time, we decriminalized the right to protest in Pakistan.
Till such time as we have such a legislation here that defines the legitimate contours of reasonable conduct of state functionaries (such as banning use of tear gas and road blockades, or spelling out circumstances for requisitioning armed forces in aid of civil power to quell peaceful assembly); making public protests here contingent upon prior permission and restricted to a designated place, is both onerous and unreasonable, as it takes away all initiative from those protesting.
Under our regime, every protest is illegitimate if permission is withheld or if it breaches section 144 CrPC. What law is reasonable, as a qualification on public protests apart from its constitutionality, must also be assessed in terms of the actual socio-political interactions and behaviour of human agents that emerges as a consequence of such laws.
At present, our statutory laws and judicial rulings criminalize public protests and give a wide discretionary latitude to the government to control them without any sense of balance for citizens’ constitutional liberties. That the government, any government, would use such discretion in a reasonable manner is naïve to expect. About time, we decriminalized the right to protest in Pakistan.
