Nothing that is bestowed by a state — being run by the current elected government — upon its citizens is absolute, including an individual’s right to protest. Upon analysing the composition of our constitution, it becomes clear that our constitution has granted us a handful of explicit rights subject to certain restrictions — to which we would feel contended if fully guaranteed to us (even with those restrictions) — while the remaining rights are derived from the ones that are explicit. An individual’s right to protest is one such right.
For decades, we have struggled for certain aims. Starting from the inception of the Independence Movement to getting a separate homeland under the Two Nations theory; to struggling in drafting a constitution that adheres to our wishes; to taking over the country and abrogating the same constitution under the garb of martial laws and emergencies, and then subsequently validating those actions; to granting certain rights known as ‘fundamental rights’, and then to curtailing the same; to our obstinacy in defining the word ‘Muslim’ in the constitution (Article 260(3)); to our fight for making ourselves better ‘Muslims’ by Islamising the entire politico-legal system; to defining the qualifications of potential candidates for assemblies; to devolving more powers to the provinces than to the centre, to redefining the appointment process for the custodians of the judicial institutions (Article 175-A); and to intensifying our fight against terrorism, our struggle still continues. Be that as it may, it was never our fight; instead, it was actually state’s interest — at the whims of elected governments/dictatorial regimes — that had painted the future our generation is now living in. To this fact, there is no cavil, as quoted by A K Brohi, in his book Fundamental Law of Pakistan: “A state acts by its legislative, its executive or its judicial authorities. It can act in no other way.”
Imran Khan has always asserted a stance that appears to be against the state’s interest, but the Sharifs are more experienced in playing politics. From past experiences it has been learnt that Khan’s protests and sit-ins have never been in the state’s interest, more precisely, not in the favour of the elected government. Therefore, the government has taken it up as its sole responsibility, as elected by the majority of the citizenry, to stop the demonstrations, and harass the protesters, proclaiming them as enemies of the country, instead of realising that there is a faction of public that has lost confidence in the elected government.
To this end, however, it is firstly important for protesters to understand that firstly, to this day, the current government has strong public support, and quite a few from the general public do not favour these sit-ins. Secondly, the state, through the elected government, is still powerful and resourceful to quash the voices of dissent.
It seems that even the legal principle of proportionality does not favour those protesting individuals that much. The Islamabad High Court has ordered to not shut down the Capital, as it would be against the other individual’s right to freedom of movement. This clarifies that the explicitly granted right to life, liberty, movement, business and education is being placed at a higher pedestal than non-explicit rights including the right to record a peaceful protest.
Nonetheless, we have completely excluded the other directives given by the Islamabad High Court. Firstly, that the interior ministry should not allow placement of containers to block the roads, and secondly, that the district government should provide another place to people for organising their protest. Ironically, where the Islamabad High Court stopped protesters from curtailing people’s freedom of movement by their protest, the elected government has somehow justified doing so under the pretext of state interest. It appears that although the doctrine of proportionality condemns the blocking of free movement of citizens by placing containers, the state’s interest somehow justifies it.
The other question is whether Section 144 ordered to be implemented in the Capital is justified or not. In view of the Asia Floor Mills Case (PLD 1996 Lahore 133) and Qari Abdul Hameed’s Case (PLD 1957 Lahore 213), it appears that Section 144 can be implemented where the state suspects that there is danger to human life or health, or a disturbance to public tranquility, or a riot, or an affray. Furthermore, that an order under the said provision does not infringe upon an individual’s fundamental rights. Even in the case of Babulal Parate (AIR 1961 SC 884) it was held that Section 144 might be invoked in emergency circumstances at the subjective discretion of the local government. In the view of these precedents, the elected government seems justified is ordering the implementation of Section 144 in Islamabad.
It is true that an individual’s right to protest is not an absolute right, and the state and the judiciary can impose certain restrictions on its exercise; however, the compelling question before us is what constitutes a reasonable restriction on a citizen’s fundamental right to protest. Is it reasonable to shut down the entire exercise of protest being led against the government, declaring it to be against state’s interest? How far can the notion of state’s interest be stretched? Isn’t it counter-intuitive to give unfettered discretion to government to curb the fundamental rights of citizens under the garb of state interest, particularly the right to protest against that very government?
These questions need to be analysed through the prism of our constitution, short of which the over-empowering mantra of state interest should not be pressed upon to silence the voices of protestors. For us, the citizens of this country, life would be easier if our leaders upheld, to the fullest, the constitutional notions.
The writer is a Lahore-based lawyer. He can be reached at [email protected] and on Twitter @haseebajaved