Why is Section 144 only shunning PTI’s voice?

On Thursday evening, during a peaceful protest held in Islamabad, the police stormed the Pakistan Tehreek-e-Insaaf (PTI) youth convention in Islamabad and arrested party workers. This has raised some serious legal questions, specifically in regard to the administrative powers of the state.

Section 144 of The Criminal Procedure Code is:

“Power to issue order absolute at once in urgent cases of nuisance or apprehended danger.”

This was first introduced in 1861; the sole purpose was to curb any native, Indian nationalist uprising against the British Sovereign. During the time of the British Raj, we see that this law wasn’t used to uphold the individual rights rather as a tool by the oppressor to oppress. Any mass uprising or assembly seemed to be an impending threat for the rulers and they would thus impose this law to make the situation dissipate as soon as possible – and prevent it becoming from becoming a force stronger than they could tackle.

This law was promulgated more than 150 years ago, yet the state is comfortable enough to use it frequently across the country.

Many have argued that Section 144, if used fairly, can prevent public nuisance for example in 2012, Section 144 was imposed in Skardu where sectarian violence claimed at least 16 lives and injured over 50,  or in 2015 when Sindh’s Provincial Home Department had issued a notification imposing Section 144 in the Karachi division, which banned display of weapons in the city. The ban was due to the operation against militants in Karachi.

However, the trouble starts when the law enforcing agencies seem to be using this law for almost every matter, for instance the recent ban on pillion riding in Abbottabad during the Muharram time, or the multiple times it has been imposed during examinations. This raises questions as to the seriousness of this law and the discretionary power of the state.

Let us be clear; although the state was well within their rights to impose the ban, the arrest of the arbitrary PTI workers cannot be ethically or legally justified. It’s a citizen’s right to protest. The constitution allows citizens to protest peacefully. The gathering of the PTI workers in Islamabad could in no way be seen as a ‘nuisance’ or ‘apprehended danger’. Every citizen has the right to ventilate their grievances and it’s the responsibility of the state to address them.

By imposing Section 144, the state cannot shy away from people’s problems and concerns. Ironically, the very section that was imposed on a ‘peaceful’ protest on grounds of ‘apprehended danger’ or ‘nuisance’ is what made violence ensue, with firing commencing right after. 627 PTI members were arrested, and 2000 men were deployed to maintain peace in the city.

If PTI’s ‘peaceful’ protest posed as quite the threat, why wasn’t Section 144 imposed when the banned outfits, leaders of the Difa-e-Pakistan Council, entered into Islamabad? Why were they not stopped from staging their own protest? Why was Ahle Sunnat Wal Jamaat (ASWJ) allowed to hold their own rally a day later where they openly declared that Section 144 does not apply to them? Or, do gatherings of proscribed leaders and their followers not come across as threatening to the Punjab government as a group of peaceful protestors?

Following the crackdown, Chief Minister of Sindh, Murad Ali Shah, has said that any protests being held in Sindh will not be condemned, given that they are non-violent and do not threaten assets or people’s lives, adding that:

“It’s the democratic right of people to organise protests,”

With laws that are made to ensure the functioning of a country, when the ministers within cannot see eye to eye with one another or the provincial government fails to apply the same rule across all parties in the region, that is where room for bias seeps through. And that is far more threatening to a country and its people’s well-being than a peaceful protest.

Many cases have challenged the constitutional validity of this section. In the interest of rule of law states; a serious infringement of constitutional rights should be illegal. However, the question is whether a law that has an absolute power to take away such rights can be declared void or unconstitutional.

It is correct that it is the state’s responsibility to maintain peace and prevent any activity that can cause public nuisance. However, even if the government anticipated such a threat on November 2, 2016, imposing a two month ban cannot be legally justified.

It is extremely important to review the legality of the government’s action when imposing Section 144, and whether those actions fell into the purview of Section 144. A magistrate, who has the power to impose Section 144, should bear in mind that every citizen has the right to express their grievances either in public or private, and seek redress.

The state must understand that it cannot use the law as a tool to further its cause, especially when the law can only be used in extraordinary situations and circumstances. It must apply the test and hold each situation against a firm and steady yardstick before charging into the crowd with a baton in hand. It is about time that the state was held accountable for its (mis)interpretation and abuse of the law.