The Constitutional Framework for Right to Protest in Pakistan

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Image Source: Daily Times “Islamabad admin denies allowing PTI long march at place decided by party” (25 May 2022, Daily Times) https://dailytimes.com.pk/940932/islamabad-admin-denies-allowing-pti-long-march-at-place-decided-by-party/ accessed: 27.08.2022.

Democracies run and thrive on the fuel of public opinion. It is vital not only for the formation of democracy but also for its continued existence. In a democratic setup, the denial of this very right not only subsides the value of regime but also significantly erodes the confidence of the governed. It gradually leads to an ever-increasing schism between the ruler and the ruled, ultimately paving the way for aggressive mass uprisings.

Democratic regimes lose the legitimacy to rule when the political will of the electorate turns against them. The distinguishing feature between a democracy and other forms of government is the degree of ‘Expression of Public Opinion’. In contrast to a democracy, the unnecessary strangulation of public voice characterises dictatorships. Therefore, the freedom of expression is cardinal to the normal functioning of a democratic society. The most valued public expression is protest, through which popular opinion is conveyed to the higher echelons of power. It is a vital instrument to modify a government’s measures and policies, helping the ruling regime to calibrate their actions according to the electorate’s will.

The Constitution of Pakistan enshrines the freedom of movement,[1] assembly,[2] association,[3] and expression[4] as fundamental rights in Chapter 1. The right to peaceful protest, though not expressly mentioned, can be implied from these provisions. However, it is noteworthy that the aforementioned rights are subject to ‘reasonable restrictions’. This means that they are not absolute in nature and can be regulated. The operation of a right, however, can only be circumscribed to the extent that it infringes the fundamental rights of others. In the same vein, the right to peaceful protest cannot be validly exercised by restricting freedom of movement or expression of general population or even causing inconvenience to such constitutional guarantees. The word ‘reasonable’ implies careful deliberation and essentially aims to harmonise individual rights with the collective interest. Additionally, the power to impose restrictions does not include the power to destroy the very right which is the subject of such regulatory dominion.[5] The reasonableness of a restriction is determined by an independent assessment of each situation, and depends upon following grounds:[6]

  1. The nature of the right alleged to have been infringed
  2. The underlying purpose of the restrictions imposed
  3. The extent and urgency of the evil sought to be remedied thereby
  4. The disproportion of the imposition, the prevailing conditions at the time.
  1. Freedom of Movement

The mobility of protestors is subject to reasonable restrictions in the interest of the public-at-large; this right can only be restricted by imposing ‘reasonable restriction of law’ in the public interest. Administrative measures adopted, policies made, and actions taken in this regard must be in close consonance with the law. Therefore, excessive, mala fide, colourable, and arbitrary actions taken upon irrelevant and extraneous considerations are unprotected by the law and cannot be seen as reasonable restriction under the law.

Judicial precedent on what constitutes a reasonable restriction within the ambit of the public interest is instructive. The Supreme Court of Pakistan has previously held that ‘reasonable restrictions’ and the ‘public interest’ cannot be independently interpreted; they must be harmoniously construed to avoid absurd interpretation.[7] Reasonable restrictions can only be imposed:

  1. By the relevant law which is in existence at the relevant time. It also means that a restriction shall only be reasonable if it is imposed by the operation of law and not by any other means. For instance, the Supreme Court declared executive-imposed restrictions on inter-provincial and intra-provincial travel during COVID-19 to be of no legal effect unless anchored in a law made by competent legislature.[8]   
  2. If it is in the public interest.

Public interest can be established on account of an action which has affected an indeterminate number of people or such a magnitude of the population has their interest tied up with that particular action.[9]

The courts have repeatedly determined the reasonableness of restrictions and defined the extent of authority held by executive authorities in doing so. Executive authorities may impose restrictions with regards to the route and venue of protests or any other condition for the maintenance and safety of public order.[10] However, acts that paralyse the administrative machinery of a city and hinder public access to focal entry-exit points have been declared to be an invalid exercise of a fundamental right to movement. Such acts are, therefore, not protected by the Constitution.[11] Similarly, restricting the normal functioning of an incumbent regime constitutes an invalid exercise of a constitutional right. However, this prohibition does not impair the right to criticise a government.[12] In another instance, the Supreme Court struck down an executive declaration that placed barriers and blocked supply to petrol stations in a bid to curtail the freedom of movement of unarmed protestors voicing their grievances in a peaceful manner[13].

2. Freedom of Assembly

The freedom to assemble is circumscribed by certain conditions:

  1. Peaceful assembly
  2. Unarmed assembly
  3. Reasonable restrictions, imposed by law, in the interest of public order.

The constitutional right to assembly is subject to just restrictions; any restrictions must be devoid of resorting to violence or even an infraction of law.[14] Restrictions shall be considered reasonable upon satisfaction of following conditions[15]:

  1. Restriction is imposed by law and not on the basis of administrative expediency or convenience.
  2. The restriction must be reasonable.
  3. The restriction relatable to the matter specifically provided for in relation to the fundamental right in question.

The right of freedom to assembly aims to preserve democratic order. It naturally follows that the right cannot be exercised to overthrow a lawful government or to bring about extra-constitutional changes such as a revolution or an insurrection.[16] Moreover, protestors are required by law to intimate the relevant district administration through a prior notice specifying time, duration and place of assembly.[17]

3. Freedom of Association

The freedom of association has also been reasonably curtailed by the Constitution under the pretexts of:

  1. Sovereignty or integrity of the State
  2. Public order
  3. Morality

The freedom of association also impliedly encapsulates the right to political process and the right to form political parties, however, the only constitutional restraint on these rights is under matters pertaining to the sovereignty or integrity of the State.

Public order has been construed as synonymous to public peace, safety and tranquillity. The danger to human life or safety, disturbance to public tranquillity or law and order falls within the purview of public order.[18] Morality, as decided in Mehtab Jan v Municipal Committee Rawalpindi, is to be construed in the context of preamble, fundamental rights, Islamic Provisions and directive principles collectively.[19] Sovereignty, being a primarily political concept has diverse avenues of interpretation. The term is legally imperceptible. However, the Preamble, as an aid to interpretation holds the concept of Sovereignty of Pakistan as equivalent to “authority”,[20] which empowers the government to curb the freedom of association or restrain the activities of political parties on the pretext that a prejudice to governmental authority is tantamount to prejudice to sovereignty.

Factual and legal circumstances determine the demarcations of the scope of freedom of association. The judgments of the higher courts have often rendered activities aiming to curtail the freedom of association by the use of executive power of a government as unconstitutional.[21] But under similar instances of facts and law, the courts have also held this right to be non-absolute and primarily contingent to the reasonable restrictions.[22] The ambiguity of the terms determining the ambit of restrictions does more than leaving the terms interpretable on the discretionary conscience of the courts. It also broadens the scope of the ‘reasonability’ of restrictions to an extent where the ‘restrictions’ become ‘unrestricted’. Thus, the greater the extent of court discretion for restricting a right, the less the possibility of inviolability of that right. Therefore, the right to freedom of association is constitutionally a qualified right rather than being absolute.

4. Freedom of Speech

Freedom of speech is also one of the rights supplementary to the right to protest. Auxiliary to speech is the freedom of expression. As envisioned by the Constitution, freedom of speech has been circumscribed by following restraints:

  1. Glory of Islam
  2. Integrity, security or defense of Pakistan
  3. Friendly relations with foreign states
  4. Public order
  5. Decency or morality
  6. Contempt of court
  7. Commission of an offense
  8. Incitement of an offence

To determine a valid exercise of right to speech, the Supreme Court has relied upon the Doctrine of Qualified Privilege. A privileged occasion is one where the person who makes the communication has an interest or a legal, social or moral duty to make it to the person to whom it is made and the person to whom it is so made has a corresponding interest or duty to receive it; reciprocity is essential.[23] In such instances, the restrictions to the freedom of speech seldom operate. However, relying upon the “duty-interest test” in the same judgement, the Supreme Court had ruled that the doctrine of qualified privilege is non-applicable in circumstances involving danger to public interests via any of the restricting stipulations provided by Article 19.[24]

Thus, when the consequences of one’s speech or expression, whether individual or of public opinion, incites breach of any of the reasonable restrictions, the freedom of speech for such a person shall not be absolute. Consequentially, the government by the dint of its executive authority is entitled and empowered to restrict such freedom, and eventually the protest, as and when may be required.

CURTAILMENT OF PAKISTAN TEHREEK-E-INSAF’S RIGHT TO PROTEST – A CASE STUDY:

A harmonious and logical extraction of the implied right to protest from the above-mentioned provisions of law vividly indicates how the right to protest is subject to certain qualifications. In the case of Pakistan Tehreek-e-Insaf’s Haqeeqi Azadi March- which was intended to be peaceful– the State sustained several losses. Offences including arson and vandalism,[25] hurling stones,[26] and damage to public properties[27] were committed in a brazen violation of the law that caused the government millions of Rupees in a bid to maintain law and order in the capital.[28] The government had restricted the right to protest by hindering the rights of movement, expression, association and assembly of the protestors not only through political and social rhetoric but also by placing physical barriers[29], which was a proactive move rather than an aftermath of the offences, if committed by the protestors. Moreover, many PTI members were arrested ahead of the protest[30]. Where the aforementioned interpretations of the Constitution elaborate the conditions where some specific rights in a protest can be compromised in the best interests of the public, Section 16 of the federal and provincial Maintenance of Public Order Ordinances also empowers the government to make arrests on commission of a verbal offence pertaining disruption of public order; both after and before commission of such an offence. So, the restrictions put forth by the government were legally and constitutionally valid. For, PTI had:

  • Lost its right to protest after it dishonoured the right of assembly by breaching the permissible legal code of conduct for protests, as forementioned.
  • Acted prejudicial to public interests by disrupting the public order, thus for the purposes of preservation of pubic tranquillity, the reasonable restriction had to be imposed by the authorities which resultantly curtailed the right to movement of the party.
  • Endangered the sovereign integrity of the state by disrupting the “public order and morality” as a consequence of breaching the restraints of peaceful protest, thus paving the way for authorities to possibly restrain the right to association of party’s supporters.
  • Punctured the barriers of free speech. The party narrative was constructed upon the notion of a ‘foreign conspiracy’ which later turned out not to be true[31]. The speeches highlighting the ‘foreign conspiracy’ incited millions to protest, and protest non-peacefully. This is a hindrance to not only to what Article 19 of the Constitution terms “friendly relations with foreign states” but also to the “public order”. Hence, any free speech that violates the provisions of the Constitution must be curtailed as per the law.

Conclusion:

Constitutional prescription of reasonable restrictions on the right of protest attempts to modify the legal effect of relevant provisions, by extending the protection of law to peaceful protests only. It establishes the individual right to peaceful protest without impairing the collective public interest. However, it is true that the extent of bars on rights prompted by these restrictions are greater than the restraints amongst the Constitutions of other civilized nations of the world. But Theodore Roosevelt would say, “obedience to the law is demanded as a right; not asked as a favour.” So, compliance to the Constitution is compulsory only in the manner provided therein and not otherwise, however unpleasant may it be.

[1] Article 15 of Constitution of the Islamic Republic of Pakistan 1973

[2] Ibid, Article 16

[3] Ibid, Article 17

[4] Ibid, Article 19

[5] Muhammad Umais v Cantonment Board Rawalpindi, 2022 PLD 148 LAHORE-HIGH-COURT-LAHORE

[6] Harkchand Ratanchand Bantia v Union of India, AIR 1970 SC 14453

[7] Pakistan Muslim League (N) v Federation of Pakistan, 2007 PLD 642 SUPREME-COURT

[8] Suo Moto Action Regarding Combating Corona Virus Pandemic, 2020 SCMR 731 SUPREME-COURT

[9] Justice Qazi Faez Esa v President of Pakistan, PLD 2021 SUPREME-COURT 1

[10] Riaz Hanif Rahi v Federation of Pakistan, 2020 PLD 175 ISLAMABAD

[11] Suo Moto Case No. 7 of 2017, 2019 PLD 318 SUPREME-COURT

[12] Faiz Ahmed Cheema v Federation of Pakistan, 2018 CLC 856

[13] Gohar Nawaz Sindhu v Province of Punjab, 2014 CLC 1558

[14] Shaheen Freight Services v Federation of Pakistan, 2021 CLC 323

[15] All Pakistan Muslim League v Government of Sindh, 2012 CLC 714

[16] Suo Moto Case No. 7 of 2017, PLD 2019 SC 318

[17] Faiz Ahmad Cheema v Federation of Pakistan, CLC 1160

[18] Mujeebullah Garsheen v Government of Balochistan, 2016 PLC (CS) 1267, AIR 1950 SC 129

[19] Mehtab Jan v Municipal Committee Rawalpindi, PLD 1958 (W.P.) Lahore 929

[20] Preamble, the Constitution of the Islamic Republic of Pakistan 1973

[21] Gohar Nawaz Sindhu v Province of Punjab, 2014 CLC 1558

[22] Riaz Hanif Rahi v Federation of Pakistan, 2020 PLD 175

[23] Mohsin Abbas v Air Waves Media (Pvt.) Ltd., PLD 2020 Sindh 400

[24] Reynolds v Times Newspaper Ltd., 1999 4 All ER 609

[25] Imran Khan, other PTI Leaders Booked over Arson and Vandalism (First Post) <https://www.firstpost.com/world/imran-khan-other-pti-leaders-booked-over-arson-and-vandalism-by-supporters-during-azadi-march-10724941.html> accessed 22nd June 2022

[26] ‘Azadi March’: PTI protesters pelt stones at Jang, Geo Islamabad office (Geo News) <https://www.geo.tv/latest/419013-azadi-march-pti-protesters-pelt-stones-at-jang-geo-islamabad-office>accessed 22nd June 2022

[27] PTI Marchers Damage Greenbelt of Islamabad-Peshawar Motorway (Dawn) <https://www.dawn.com/news/1691661/pti-marchers-damage-green-belt-of-islamabad-peshawar-motorway> accessed 23rd June 2022

[28] PTI’s ‘Haqiqi Azadi March’ cost government Rs 149 million (ANI) https://www.aninews.in/news/world/asia/ptis-haqiqi-azadi-march-cost-government-rs-149-million20220527230957/ > accessed 23rd June 2022

[29] PTI Azadi March: Govt decides to seal Islamabad’s Red Zone (The News) https://www.thenews.com.pk/latest/960079-ptis-azadi-march-govt-decides-to-seal-islamabads-red-zone> accessed 23rd June 2022

[30] Imran Khan’s Azadi March: PTI members arrested, Islamabad sealed (Business Standard) <https://www.business-standard.com/article/international/imran-khan-s-azadi-march-pti-members-arrested-islamabad-sealed-122052500304_1.html> accessed 23rd June 2022

[31]Imran Khan’s US Conspiracy Theory: A Close Examination (The Diplomat)

 https://thediplomat.com/2022/04/imran-khans-us-conspiracy-theory-a-close-examination/  > accessed 23rd June 2022

Bibliography

  1. Constitution of the Islamic Republic of Pakistan 1973
  2. Muhammad Umais v Cantonment Board Rawalpindi, 2022 PLD 148 LAHORE-HIGH-COURT-LAHORE
  3. Harkchand Ratanchand Bantia v Union of India, AIR 1970 SC 14453
  4. Pakistan Muslim League (N) v Federation of Pakistan, 2007 PLD 642 SUPREME-COURT
  5. Suo Moto Action Regarding Combating Corona Virus Pandemic, 2020 Scmr 731 Supreme-Court
  6. Justice Qazi Faez Esa v President of Pakistan, PLD 2021 SUPREME-COURT 1
  7. Riaz Hanif Rahi v Federation of Pakistan, 2020 PLD 175 ISLAMABAD
  8. Suo Moto Case No. 7 of 2017, 2019 PLD 318 SUPREME-COURT
  9. Faiz Ahmed Cheema v Federation of Pakistan, 2018 CLC 856
  10. Gohar Nawaz Sindhu v Province of Punjab, 2014 CLC 1558
  11. Shaheen Freight Services v Federation of Pakistan, 2021 CLC 323
  12. All Pakistan Muslim League v Government of Sindh, 2012 CLC 714
  13. Suo Moto Case No. 7 of 2017, PLD 2019 SC 318
  14. Faiz Ahmad Cheema v Federation of Pakistan, CLC 1160
  15. Mujeebullah Garsheen v Government of Balochistan, 2016 PLC (CS) 1267, AIR 1950 SC 129
  16. Mehtab Jan v Municipal Committee Rawalpindi, PLD 1958 (W.P.) Lahore 929
  17. Preamble, the Constitution of the Islamic Republic of Pakistan 1973
  18. Gohar Nawaz Sindhu v Province of Punjab, 2014 CLC 1558
  19. Riaz Hanif Rahi v Federation of Pakistan, 2020 PLD 175
  20. Mohsin Abbas v Air Waves Media (Pvt.) Ltd., PLD 2020 Sindh 400
  21. Reynolds v Times Newspaper Ltd., 1999 4 All ER 609
  22. Imran Khan, other PTI Leaders Booked over Arson and Vandalism (First Post) <https://www.firstpost.com/world/imran-khan-other-pti-leaders-booked-over-arson-and-vandalism-by-supporters-during-azadi-march-10724941.html> accessed 22nd June 2022
  23. ‘Azadi March’: PTI protesters pelt stones at Jang, Geo Islamabad office (Geo News) <https://www.geo.tv/latest/419013-azadi-march-pti-protesters-pelt-stones-at-jang-geo-islamabad-office>accessed 22nd June 2022
  24. PTI Marchers Damage Greenbelt of Islamabad-Peshawar Motorway (Dawn) <https://www.dawn.com/news/1691661/pti-marchers-damage-green-belt-of-islamabad-peshawar-motorway> accessed 23rd June 2022
  25. PTI’s ‘Haqiqi Azadi March’ cost government Rs 149 million (ANI) <https://www.aninews.in/news/world/asia/ptis-haqiqi-azadi-march-cost-government-rs-149-million20220527230957/ > accessed 23rd June 2022
  26. PTI Azadi March: Govt decides to seal Islamabad’s Red Zone (The News) https://www.thenews.com.pk/latest/960079-ptis-azadi-march-govt-decides-to-seal-islamabads-red-zone> accessed 23rd June 2022
  27. Imran Khan’s Azadi March: PTI members arrested, Islamabad sealed (Business Standard) <https://www.business-standard.com/article/international/imran-khan-s-azadi-march-pti-members-arrested-islamabad-sealed-122052500304_1.html> accessed 23rd June 2022
  28. Imran Khan’s US Conspiracy Theory: A Close Examination (The Diplomat) <https://thediplomat.com/2022/04/imran-khans-us-conspiracy-theory-a-close-examination/  > accessed 23rd June 2022

Authors

Taimoor Raza Sultan, Law Student (taimoor.patriot@gmail.com)

Ali Shouzab, Law Student (alishouzab9@gmail.com)

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