Fundamental Rights vs Section 144 of Criminal Procedure Code

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Fundamental Rights vs Section 144 of Criminal Procedure Code

In November 2016, Pakistan Tehreek-e-Insaf (PTI), currently the ruling political party in Pakistan, had called its young members to attend a youth convention. The convention was held inside a hall which was private property and managed by a person in private capacity within the premises of Islamabad. Section 144 of the Criminal Procedure Code 1898 (CrPC) had been imposed in Islamabad at that time, according to which 4 or more persons were not allowed to assemble together. As a result, over 100 persons got arrested. PTI leader Shah Mehmood Qureshi also accused the police of manhandling female workers of the party and stated that none of the workers possessed any sort of weapons. The district magistrate had imposed S.144 in response to Imran Khan’s announcement of countrywide protest.

The question is: was that assembly unlawful? It cannot be categorized as a riot because the individuals were in a closed vicinity and practising their right to freedom of association and assembly as prescribed under Article 17 of the Constitution of Pakistan. The nature of their assembly could be categorized as a rout[1] perhaps, which is the planning of a riot before the riot can take place. PTI leader, Imran Khan, did call upon his supporters to stage a protest against the government which at the time had not been addressing corruption cases in the aftermath of Panama Leaks in which many public office holders had been named, including the Prime Minister.[2] The government at the time tried to restrict access of the people into the capital by placing containers to block passage, which was in contempt of court orders. The court of Justice Shaukat Siddique had categorically stated that the right to protest was a fundamental right of every individual of Pakistan.[3]

This time Maulana Fazul-ur-Rehman wants to march to Islamabad leading people who want to exercise their right to protest. But the PTI is now doing the same as what had been done to them by blocking the capital using S.144 of CrPC. This article aims to analyze how the courts view S.144 when used to curtail fundamental rights of individuals.

Freedom of speech, freedom of association and freedom of assembly have been granted under the Constitution of Pakistan while S.144 exists under the Criminal Procedure Code. The aim of section 144 is the prevention of any sort of activity that can cause trouble to public order. The word ‘prevention’ allows the regulating body to pass any order that will allow it to control the public and maintain public peace, but it has been proved time and time again that fundamental rights are also compromised as a consequence.

The precedent set by courts also details to an extent the validity of passing such orders. It has been held that in passing orders under section 144 CrPC, authorities will have to pay due regard to the observations contained in the civil court’s judgment with regard to private rights, however, they should still give paramount consideration to the maintenance of law and order.[4] The contention here is that private rights and public peace need to be balanced accordingly.

The passing of such orders may interfere with a person’s enjoyment of private rights. In the case of M.D. Tahir Advocate v Government of Punjab through Chief Secretary and 3 others,[5] it was contended that the festival of basant be banned according to the order passed under S.144 CrPC. The order passed under S.144 at the time was because of the deaths caused by the use of steel threads to fly kites. Moreover, the order had also banned basant because the people had been using guns for aerial firing and had also been playing loud music during the night causing nuisance within communities. The order had banned the manufacturing of threads as well, causing disruption in the manufacturers’ business. The court explained how Article 8 of the Constitution enabled laws to be deemed void if they were inconsistent with or in derogation of fundamental rights, but ultimately held that the ban on the festival was justified because of the grave injuries and disturbances caused within the community. The firing of guns was already being regulated under the Arms Act 1878. The plaintiffs further contended that the ban on manufacturing and selling threads had not been prohibited under any law in Pakistan and that the use of S.144 to ban them was an overreach. The court declared the order in this instance void since every individual had the right to join a trade, business or profession. This case reflects that if there is no threat of serious public injury then fundamental rights should be allowed. However, the case did not state whether a business could not otherwise be regulated by law.

The case of Rizwan Zaka Gill v Government of Punjab and others[6] explored the question of whether businesses could be regulated under S.144 of CrPC in the interests of public safety. It had been contended that the closing time of wedding halls at 10 pm affected the enjoyment of life and liberty of individuals and their fundamental right to conduct free trade and business. The court had allowed the order to be valid on the basis of serving larger public interests, even though the reasoning given for the passing of the order was to address the ‘immorality’ of staying out late. On the other hand, it was noted that an order passed under S.144 could not be in place for an indefinite period of time unless notified by the government and that only the laws passed by legislature were supposed to be in force for an indefinite period of time, until amended. Therefore, the court in Rizwan Zaka Gill v Government of Punjab and others, limited the use of S.144 for a maximum period of 2 months. However, the local government now renews the rules every 2 months and is still able to restrict local wedding halls from entertaining guests past 10 pm.

We as a community need to realize that the legislature exists to enact laws but local authorities are still acting like colonizers who implement and enforce laws at whim. S.144 is like a string attached to our fundamental rights and used by the government to curtail our freedoms. These chains can only be broken when we realize our potential to use the system to our advantage and not for the advantage of certain individuals. Until then, even our fundamental right to life can never be certain.

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References

[1] Jerome Hall, Criminal Attempt—A Study of Foundations of Criminal Liability, 49 YALE L.J. 789, 793 (1940); cf. BISHOP, supra note 53, at 609 (“[O]ut of a particular form of attempted riot, the law has created a separate offence, known as an unlawful assembly”)
[2] PLD 2017 SC 265
[3] Justice Shaukat Aziz Siddiqui remarking while hearing a case on placing blockades in the city of Islamabad. https://tribune.com.pk/story/1215978/no-lockdown-pti-can-hold-protest-designated-area-ihc/
[4] K. Murugappa Mudaliar and others v. Kuppuswami Mudaliar and others AIR 1949 Mad. 212, Abdulkadir Lebba Abdul Rahiman and others v. State and 2 others AIR 1952 Tr. Cochin 251,
[5] 1999 M L D 2579 
[6] PLD 2016 Lahore 258

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.

Hassan Ejaz Khan

The writer is currently practising law in Islamabad and Rawalpindi. His experiences also include legislative drafting and working in a federal regulatory department. He tweets @hassanejazkhan



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