Daily Times

The Supreme Court of Pakistan (SCP) took suo motu notice (No.7/2017) regarding the Tehreek-e-Labaik Pakistan’s (TLP) Faizabad Dharna when the Islamabad High Court (IHC) seized of the matter in the Syed Pervaiz Zahoor case (WP No. 3914/2017).

The judgement of the IHC had concluded that a right to protest is a qualified right that needs to be balanced with other citizens’ fundamental rights, adding that there is a designated place to protests in Islamabad i.e. “Democracy Park and Speech Corner [parade ground]”.

The opinion of the Supreme Court in the suo moto case is authored by Justice Qazi Faez Isa. In an apparent attempt to disassociate from the unsparing use of original jurisdiction under the former Chief Justice and with disagreements within the Court, as penned by Justice Mansoor Ali Shah in a note on January 1, 2019 in Human Rights Case No.14959-K of 2018; the Court, in a conscious effort, dilates upon the principles that govern assumption of the Court’s jurisdiction under Article 184(3) of the Constitution. The opinion cautions: “… every possible care should be taken before making an order under Article 184 (3) since there is no right to appeal such an order”.

In addition to answering a question concerning enforcement of entrenched fundamental rights, the issue must also involve a question of public importance, before the apex Court can assume jurisdiction under Article 184 (3). The opinion notes: “mere importance of a matter isn’t, in itself, sufficient to invoke jurisdiction. The matter must be one of public importance, that is, it must involve the rights of the public too.” Right to protest is not an entrenched fundamental right in our Constitution, like the Court observes: “The Constitution does not specifically stipulate a right to protest.”  However, protest as a protected value in a democracy, under our scheme of Constitution, flows from Article 15; freedom of movement, Article 16; freedom of assembly, Article 17; freedom of association and Article 19; freedom of speech.

“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. Roads are for vehicular use and pavements are for the use of pedestrians to enable the travelling public to move freely, which is their fundamental right”

By framing the issue of TLP’s protest as one due to which the “country effectively came under lockdown”, the apex Court, justifies assumption of jurisdiction under Article 184(3) of the Constitution as the protest that infringed rights of other citizens. The Supreme Court makes a similar conclusion as made by the IHC: “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. Roads are for vehicular use and pavements are for the use of pedestrians to enable the travelling public to move freely, which is their fundamental right”. There is nothing in the opinion though explaining the departure from the judicial convention of exercise of original jurisdiction by the Chief Justice on behalf of the Supreme Court and not by his peers on the Bench.

Apart from the text of the Constitution, policy considerations are equally significant before passing orders, directions or decrees under Article 184(3). These were articulately explained by Justice Muhammad Afzal Zullah in Darshan Masih’s case (PLD 1990 SC 513): “Treating with public interest litigation requires more than legal scholarship and a knowledge of textbook law. It is of the utmost importance in such cases that when formulating a scheme of action, the Court must have due regard to the particular circumstances of the case, to surrounding realities including the potential for successful implementation and the likelihood and degree of response from the agencies on whom the implementation will depend.”

Likelihood of successful implementation of orders, regards for precedent, response time from agencies and context of local history; it is this insight from the brilliant Justice Zullah that has escaped the Court in the past while exercising jurisdiction under Article 184(3) of the Constitution. With the sheer and discontinuous breath of issues raised in the opinion of the Court – ranging from role of intelligence agencies, PEMRA, politicians and political parties, Election  Commission of Pakistan to irresponsible use of fatwa or edicts, responsibility of electronic media and cable operators, need for improvement on handling protests by law enforcement including by police, provincial governments’ responsibilities to monitor hate speech; and corresponding directions to different agencies and branches of the executive in settling those issues; we are not sure if the directions of the apex Court would be implemented any time sooner or ever. The criticism on the exercise of original jurisdiction thus remains!

It is about time the federal government developed political consensus in the house to bring appropriate amendments to Article 184(3) of the Constitution with an aim to define the contours of Article 184(3), including a provision of appeal, against such orders.  While one can be critical of lack of judicial deference and restraint from the apex Court, absence of political will to address this outstanding issue of suo motu powers is hard to rationalise.

The writer attended Berkeley and is a Barrister of Lincoln’s Inn

Published in Daily Times, February 8^th 2019.