The Supreme Court has disposed of the Faizabad dharna case and ordered action against army officers who engaged in political activity during the 2017 sit-in, media houses who aired material inciting hatred and violence and said the military cannot censor the press.
The Tehreek-i-Labbaik Pakistan (TLP) staged a protest from November 5, 2017 to November 26 at the Faizabad Interchange in Islamabad, virtually paralyzing the capital. Several people also lost their lives.
The protest began after a change was made to the Election Bill, 2017, changing the affirmation of the finality of the prophethood of Hazarat Muhammad (peace be upon him) for Muslim parliamentarians who take oath from “I solemnly swear” to “I believe”.
The protest ended after the government gave in to their demands and reversed the change. The law minister at the time, Zahid Hamid, also resigned.
The court had taken suo motu notice of the protest and announced its verdict in the case on Wednesday morning by uploading the court order on its website. You can read the full order here.
Justice Qazi Faez Isa and Justice Mushir Alam were on the two-judge bench that heard the case.
The court gave several important orders in the case.
Action against TLP protesters
To start with, it ruled that all citizens and political parties have “the right to assemble and protest provided such assembly and protest is peaceful and complies with the law imposing reasonable restrictions in the interest of public order”. Clearly defining what “public order” is, the court said this right is only guaranteed as long as it does not infringe on the fundamental rights of others, including “their right to free movement and to hold and enjoy property”.
“Protestors who obstruct people’s right to use roads and damage or destroy property must be proceeded against according to the law and held accountable,” ruled the court.
“As per the unanimous view of all the intelligence agencies, the TLP wanted to maximize political mileage for itself,” observed the court. “The ambitious leadership of a fledgling political party projected itself as the defender of the Muslim faith. They provoked religious sentiment, stoked the flames of hatred, abused, resorted to violence and destroyed property worth Rs163,952,000 [Rs163 million].”
“Intelligence agencies reported that politicians visited TLP’s leadership camped on the Faizabad Interchange. TLP received prime-time free media coverage and publicity, transforming it overnight into a household name. Two of its candidates got elected as members of the Sindh Assembly and TLP got a sizeable number of votes in the July 25 general elections,” observed the judges.
“The leaders of the dharna intimidated, hurled threats, abused, provoked and promoted hatred,” it said, ruling that this was against the constitution and did not, therefore, guarantee them the right to protest.
Lack of action by the ECP
The court reprimanded the Election Commission of Pakistan for not following the law regarding political parties declaring their source of income and failing to take action against the TLP for this.
“The Constitution earmarks the responsibilities of the Election Commission which it must fulfill. If a political party does not comply with the law governing political parties then the Election Commission must proceed against it in accordance with the law. The law is most certainly not cosmetic as contended on behalf of the Election Commission,” read the order.
The court asked the ECP for information on whether the TLP abided by the political parties’ code of conduct, whether it is foreign funded and whether it has foreign membership. The ECP never provided the information.
The court quoted the Article 17 of the Constitution as saying that political parties must not act in a manner “prejudicial to the sovereignty and integrity of Pakistan” and they “shall account for the source of funds”.
However, according to data provided to the court, a resident of the UAE, who had a NICOP, represented the TLP before the ECP and “attended to all its matters and secured TLP’s registration as a political party”.
It detailed the procedure for the ECP to follow “if a political party ‘is a foreign aided political party or has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan or is indulging in terrorism”. It is supposed to submit a complaint to the federal government, which then refers the matter to the top court, which can then decide whether to dissolve the party or not.
However, the ECP never referred the matter to the government. The order said the director general of law and the secretary of the Election Commission confirmed that the TLP did not provide the financial information, however, he stated that the law is “(to use their words) cosmetic in nature therefore the Election Commission could not take action against TLP”.
“The Election Commission should disabuse itself that constitutional and legal provisions are cosmetic. The responsibilities placed on the Election Commission by the Constitution and the law must be fulfilled, they are not optional,” said the judges.
The court also ruled that all political parties have to account for the source of their funds.
May 12 violence
The judges said that the government’s handling of the May 12, 2007 protests and its failure to prosecute senior officials responsible for the murder and attempted murder of peaceful citizens, it set a “bad precedent” and “encouraged others to resort to violence to achieve their agendas”.
“The state must always act impartially and fairly. The law is applicable to all, including those who are in government and institutions must act independently of those in government,” it ruled.
No more harmful fatwas
The Supreme Court said, “A person issuing an edict or fatwa, which harms another or puts another in harm’s way, must be criminally prosecuted under the Pakistan Penal Code, the Anti-Terrorism Act, 1997 and/or the Prevention of Electronic Crimes Act, 2016.”
Censorship is illegal
One of the issues tackled by the court was the censorship of the media during the protests. It also addressed the fact that some media organisations actively supported the TLP.
“TLP’s leadership created hatred amongst the people, they abused, threatened and advocated violence; and this was broadcasted by some private television channels,” it said. “Broadcasters who broadcast messages advocating or inciting the commission of an offence violate the PEMRA Ordinance and the terms of their licences and must be proceeded against by PEMRA in accordance with the law,” ruled the court.
It specifically mentioned Channel 92, which, according to an ISI report, “supported the TLP” and “its owners had supplied food to the protestors occupying the Faizabad Interchange”. PEMRA, however, did not take any action against the channel, or others violating the terms of their licenses.
“Those spreading messages through electronic means which advocate or incite the commission of an offence are liable to be prosecuted under the Prevention of Electronic Crimes Act, 2016,” ruled the court.
It also tackled the issue of censorship, referencing a complaint filed by the Pakistan Federal Union of Journalists that said that “unannounced censorship was being imposed by state institutions across Pakistan… through coercion, control on advertisement, harassment and even carrying attacks on the journalists… Journalists in particular and society as a whole are scared of those elements who are either guns, or claiming to be the religious god-fathers”.
The Council of Pakistan Newspaper Editors alleged that “that editors and journalists are forced to self-censor their work amid pressure from certain quarters”. The court said Dawn was targeted the most.
“Overt and covert censorship is unconstitutional and illegal. Nebulous tactics, such as issuing advice to self-censor, to suppress independent viewpoints, to project prescribed ones, to direct who should be hired or fired by media organisations is also illegal,” ruled the court.
“No one, including any government, department or intelligence agency can curtail the fundamental right of freedom of speech, expression and press beyond the parameters mentioned in Article 19 of the Constitution. Those who resort to such tactics under the mistaken belief that they serve some higher goal delude themselves,” it said.
It also censured cable operators who took Dawn News and Geo News off air in cantonment areas and defence housing areas in the country, which was confirmed by PEMRA. It also reprimanded PEMRA for doing “nothing to protect the interests of its licencees” or taking action against the cable operators responsible for taking them off air.
“Cable operators who stopped or interrupted the broadcast of licenced broadcasters must be proceeded against by PEMRA in accordance with the PEMRA Ordinance, and if this was done on the behest of others then PEMRA should report those so directing the cable operators to the concerned authorities,” directed the court.
Intelligence agencies should stick to their mandates
The court expressed its disappointment with the way the government handled the case and the public perception that the ISI was involved in it.
“By ignoring an issue, it does not go away. The perception that the ISI may be involved in or interferes with matters with which an intelligence agency should not be concerned with, including politics, therefore was not put to rest,” it said. ‘Intelligence agencies’ here refers to the ISI, Intelligence Bureau and Military Intelligence.
When the court asked the ISI whether the TLP paid income tax or had bank accounts, the ISI said it “did not have the mandate to gather such information”. The court was then informed by the attorney general of the laws, rules and regulations governing the ISI and its mandate. However, this information was provided to the court in a sealed envelope with the request that it not be disclosed.
“He [the attorney general] did not give any reason for such secrecy except that this was also the practice in other countries but did not cite the example of a single one. We therefore ascertained whether other countries maintained secrecy about the mandate of their intelligence agencies,” said the court. Its order gave examples of several countries – the UK, USA, Canada, Australia, New Zealand and Norway – which have clearly defined and publicized the jurisdiction and mandate of its intelligence agencies.
It referenced the decision in the Air Marshal Asghar Khan case, which declared, that “Involvement of the officers/members of secret agencies ie ISI, MI, IB etc in unlawful activities, individually or collectively calls for strict action being, violative of oath of their offices, and if involved, they are liable to be dealt with under the Constitution and the law.”
“Pursuant to the judgment in Air Marshal Asghar Khan’s case, the involvement of ISI and of the members of the armed forces in politics, media and other ‘unlawful activities’ should have stopped. Instead when TLP’s dharna participants received cash handouts from men in uniform the perception of their involvement gained traction,” said the court. It also said the director general of the Inter-Services Public Relations (ISPR) had also taken to commenting on political matters.
The court said it would not “allow the honour and esteem due to those who lay down their lives for others to be undermined by the illegal actions of a few” and that “intelligence agencies should not ignore those who promote violence and hate”.
Therefore, it ruled that all intelligence agencies and the ISPR must not exceed their respective mandates. “They cannot curtail the freedom of speech and expression and do not have the authority to interfere with broadcasts and publications, in the management of broadcasters/publishers and in the distribution of newspaper,” it ruled.
Referring to the ISI’s statement that it could not provide information on the activities of the TLP, the court said, “Intelligence agencies should monitor activities of all those who threaten the territorial integrity of the country and all those who undermine the security of the people and the state by resorting to or inciting violence.”
But most importantly, it said “To best ensure transparency and the rule of law it would be appropriate to enact laws which clearly stipulate the respective mandates of the intelligence agencies.” Having laws like the ones in the UK, USA and other countries that the court referenced would clearly determine the jurisdiction and functioning of the intelligence agencies.
“The Constitution emphatically prohibits members of the armed forces from engaging in any kind of political activity, which includes supporting a political party, faction or individual. The Government of Pakistan through the Ministry of Defence and the respective chiefs of the army, the navy and the air force are directed to initiate action against the personnel under their command who are found to have violated their oath,” read the order.
Develop an SOP
The court also ordered the police and other law enforcement agencies to develop standard plans and procedure on how best to handle rallies, protests and dharnas, and ensure that such plans and procedures are flexible enough to attend to different situations. “It is clarified that though the making of such plans/procedures is not within the jurisdiction of this court, however, we expect that in the maintenance of law and order every effort will be taken to avoid causing injury and loss of life,” read the order.
The court also directed the federal and provincial governments to monitor those “advocating hate, extremism and terrorism and prosecute the perpetrators in accordance with the law”.