SC hearing: Can today be a landmark day in the history of Pakistan?
Supreme Court issues notices to Imran Khan and Tahir Ul Qadri | Hearing today on protest marches
Guest column by Barrister Ameer Abbas Khan
In such a political turmoil, which we have been witnessing for about a week now, and the government’s helplessness to deal with the situation manufactured by PTI and PAT, who claim to have been exercising their right to protest, a petition from Lahore High Court’s Multan Bar Association before the Supreme Court in relation to these protests is of greater significance.
In this respect, Supreme Court has issued notices to Imran Khan and Tahir Ul Qadri and the hearing has also been fixed for today, Thursday 21 August 2014.
Apparently, in its petition, the Bar Association has prayed that the apex court:
(i) Restrain the respondents, PTI and PAT, from illegal and unlawful trespassing of prohibited zones including Constitution Avenue, offices of foreign missions, Pakistan secretariat and secretariat offices
(ii) Ban the respondents from conducting any sort of march including dharna and civil disobedience by offending public peace and tranquility in any manner whatsoever in all times to come.
(iii) Direct the Federation of Pakistan to perform their functions in accordance with the mandatory provision of the Constitution in the face of unlawful and unconstitutional activities of movements of respondents.
In dealing with this petition, the Supreme Court may have to balance the parties’ “right to protest” against the government’s “duty to maintain law and order”.
No doubt that the government’s position in current environment is very sensitive and any heavy handedness on its part to stop people crossing the “red line” may create havoc and therefore the government may be relying on the Court’s decision to rescue it by either ordering the government to take some action or declaring the marches or approach of PTI and PAT unconstitutional or illegal.
If that’s what the approach of the government is then it must remember that law already empowers the government to take necessary steps in carrying out its functions and in that respect it does not need a specific direction from courts, which are there to judge if indeed the government took those steps within the parameters of the law.
But the petition before Court is not from the government and therefore point (iii) above could be taken as a failure on the part of government to carry out its function and therefore the Bar Council is seeking a specific direction from the Court for the government to carry out its functions and duties which includes the maintenance of law and order situation.
However, words “unlawful and unconstitutional activities of movements of respondents” are critical and they would need to be proved. It would very much depend upon the arguments put before the Court but the parties’ demands as such may not be held unlawful and unconstitutional and therefore much of the emphasis could be on the manner and intentions of the parties to achieve those demands and in that respect inciting speeches and tweets of the both parties’ leaders would play a decisive role.
It would be hard on any standard to justify words like “I won’t be able to control the crowd” in exercising right to a peaceful protest. Furthermore, demanding resignation of PM or dissolution of Assemblies in a threatening manner and without adopting due procedures would also be critical in determining one’s right to a peaceful protest.
As far as points (i) and (ii) are concerned, the “illegal and unlawful trespassing of prohibited zones” would need to be proved as well but isn’t it true that so far government has been limiting the area of the red zone and therefore in a way government has been allowing the protestors to come and protest in that zone.
In light of the law and order situation, it is for the government to determine the red zone and ensure that people don’t enter into it and that may include taking action as per the law against those who attempt to break into that zone.
It is also the responsibility of the government to deal with the sensitivity of the situation using its political influence and the Court’s job would be to judge if the government exercised its powers within the limit as prescribed by law. Mostly one seeks preemptive Court injunctions when no provisions are available in law to deal with that particular situation.
However, considering the threatening demeanor of the parties, the Court may restrain the parties’ leaders from using threatening language, which has the potential of inciting public or challenging the writ of the state.
Too strong or too weak?
In Pakistan, it is extremely unfortunate that either the institution is too strong to do anything or too weak to carry out its constitutional role and such a predicament not only applies an additional pressure on the Supreme Courts but also makes the role of Court ever more critical.
Therefore, the decision of Supreme Court on this petition would be very significant as it may define the “right to protest” in such a manner that either it would restrict parties challenging State right in its face defying due process and provisions of law or it may set a precedent for future protests of the types we are witnessing in Islamabad right now.
We can’t be certain what Supreme Court is going to decide but it would also be important to note the response of parties if any adverse order is made against them.
In addition to the Court’s decision, it would also be seen if the current system can sustain the rising temperature. Today therefore could be a landmark day in the history of Pakistan.
An Abdalian and Aitchisonian, Barrister Ameer Abbas Ali Khan, is a Solicitor-Advocate (UK), Advocte High Court. He has LLB (Hons) UK, LLM (LSE), Bar-at-Law from Lincoln Inn, and lives in London. His father has been an MP in Pakistan over several decades.
The opinions expressed in this guest post are the writer’s own and do not reflect the view of the walizahid.com blog.
Also by Ameer Abbas Khan:
Will PMLN govt survive PTI/PAT onslaught?
PTI + PAT V State of Pakistan: use of force instead of courts or dialogue
Article 245: digging own grave?
No right to blame others!
Arsalan case against Imran on moral ground may not stand
To sue, or not to sue? Iftikhar Chaudhry answers this question
Will PTI’s threats of August march, PA dissolution help democracy?
Musharraf: Let justice be done, though the heavens may fall!
Is Qadri’s path constitutional & legal? No
A tale of two bigwigs in two judicial systems
Arrest of Altaf Hussain: A big deal? No.