- Fundamental rights and public peace sometimes clash
By: Hasan Ejaz Khan
In November 2016, Pakistan Tehreek-e-Insaf (PTI), now the ruling party of Pakistan, had called its youth members to attend a convention. Iy was held inside a hall that was private property and it was managed by a private person inside Islamabad. Section 144 of Criminal Procedure Code 1898 (Cr.P.C) was imposed in Islamabad after PTI chief Imran Khan announced a countrywide protest at that time which did not allow 4 or more persons to assemble together. Over 100 were arrested, PTI Leader Shah Mehmood Qureshi accused the police of manhandling female workers and stated that none had any weapon. Was that assembly unlawful? It could not be categorized as a riot because the individuals were in a closed vicinity and practicing their right of freedom of association under Article 17 of the Constitution. The nature of their assembly can be categorized as a rout though, which is the planning of a riot before it takes place. Imran did call on his supporters to protest, as the government at the time was not pursuing a case of corruption which was to be looked at after panama leaks and had the names of many officials holding public office including the Prime Minister. The government at the time tried to restrict access of people into Islamabad by placing containers to block their passage, in contempt of court as the court of Mr Justice Shaukat Siddique categorically stated that, the right of protest is a fundamental right of every individual. Now, JUI(F) chief Maulana Fazul-ur-Rehman is coming to Islamabad leading people who want to exercise their right to protest. Again, the PTI is doing what was done to them, blocking Islamabad using Section 144. But what do the courts think of Section 144 being used to curtail rights of individuals.
As a community, we need to realize that the legislature is there to enact laws and the local government is still acting like the colonizers who set the law and implemented it. Section 144 is a chain attached to our fundamental rights and every government holds these chains to control the fundamental rights
The Constitution allows for freedom of speech, of association, of assembly, while Section 144 exists under the CrPC. Its ingredient is prevention of any sort of trouble that can disturb public order. The word prevention allows the ordering body to pass any order that would allow them to control the public. Public peace is the main purpose of this law, but time and time again it has been proved that fundamental rights are also compromised because of it. The battle between fundamental rights and public peace is ongoing.
Court precedents have detailed to an extent where passing such orders is valid. It has been held that in passing orders under section 144, the authorities will no doubt pay due regard to the observations contained in the civil court’s judgment with regard to private rights, but the paramount consideration should be that of maintenance of law and order. The contention here is that private rights and public peace needs to be weighed. The passing of such orders may interfere with the person’s enjoyment of private rights. Like in M.D. Tahir’s case, it was contended that Basant be banned according to the order passed under Section 144. The court in the case explained that Article 8 of the Constitution enabled laws inconsistent with or in derogation of fundamental rights to be void explicitly. The order passed under Section 144 at the time was because of the deaths caused by the steel threads being used to fly kites. Moreover, the order also banned Basant because the people were using guns for aerial firing and also playing loud music during the night which caused nuisance. The order also banned the manufacturing of the threads as well which caused disruption in business. The court held that the ban on the festival is justified only because of the great injuries and disturbance caused in the community during the night. The firing of guns has laws already placed in the country, the Arms Act 1878. The plaintiffs also contended that banning the manufacturing and sale of threads was not prohibited under any law, but Section 144. The court made the order void as every individual has freedom of trade, business or profession. This case reflects how if there is no threat of large public injury, then the fundamental right will be allowed. This case did not state however that any business cabbot be regulated by law.
In Rizwan Zaka Gill’s case, it was laid down that any business can be regulated under Section144 if it is in the interest of the public safety. The petitioner contended that, the closing of marriage halls at 10 pm affected the life and liberty of the persons and the fundamental right of conducting free trade and business. Although in the previous precedent it was held that a law needs to be made by the government and an order under Section 144 cannot be indefinite unless notified by the government, while a law made by the legislature is indefinite until amended. The defendant raised the question of regulating one’s rights and the court in this case also did understand the argument that rights should be regulated and made the order a valid one. The court allowed the order to be valid on the basis of “restricting” one’s rights so that the larger public can served. It can be understood that the fundamental rights are not absolute but also not unlimited, there needs to be a substantial weight given to both fundamental rights and public peace. Freedom of enjoyment of life itself is curtailed by the use of section 144, and marriage halls are closed by 10 pm, the reasoning given being of immorality. It is immoral for one to stay out late and hold a function according to the local government of Islamabad. The court in Rizwan Zakka Gill’s case limited the use of Section144 for a maximum of 2 months, but the local government renews the rules every two months now and restricts the local marriage halls from entertaining the guests after 10 pm.
As a community, we need to realize that the legislature is there to enact laws and the local government is still acting like the colonizers who set the law and implemented it. Section 144 is a chain attached to our fundamental rights and every government holds these chains to control the fundamental rights of the people. These chains can only be broken when we realize our potential to use the system to our advantage and not to that of certain individuals. Until then our fundamental rights to life can never be certain.
