Updated: Wednesday February 06, 2019/AlArbia'a
Jamada El Thaniah 01, 1440/Budhavara
Magha 17, 1940, at 06:58:12 PM
IN THE SUPREME COURT OF
(Original Jurisdiction)
PRESENT: Mr. Justice Mushir Alam
Mr. Justice Qazi Faez Isa
Suo Moto Case No. 7/2017
(Suo Moto action regarding
Islamabad-Rawalpindi
Sit-in / Dharna)
In Attendance: Attorney
Generals for
Deputy Attorney General, Mr. Sohail Mehmood.
Advocate General,
Additional Advocate Generals,
Razzaq A. Mirza and Barrister Qasim Chauhan.
Secretary, D.G. Law and A.D.G. Law of the Election
Commission of
Yaqoob Fateh, Mr. M. Arshad and Malik Mujtaba respectively.
Chairman, Head Legal, D.G. (Operation and Broadcast
Media) and D.G. (Operation Distribution) of PEMRA, Mr. Saleem Baig, Mr. Ali Zeeshan
Gondal, Mr. Sohail Asif and Mr. Muhammad Farooq respectively.
Director and Joint Director of I.B., Mr. Malik
Aziz-ur-Rehman and Mr. Anwar-ul-Haq Khawar respectively.
Director (Legal) and Deputy Director (Legal), Ministry
of Defence, Brigadier Falak Naz and Lieutenant Commander Shafiq
Deputy Secretary Interior, Mr. Nasir Khan.
Assistant Director (Legal), Mr.
Shafiq-ur-Rehman.
IGP and SP,
Mr. Liaqat Hayat Niazi respectively.
Dates of Hearing: 21st
November, 2017, 23rd November, 2017, 30th November, 2017, 3rd
January, 2018, 16th February, 2018, 19th March, 2018, 15th April, 2018,
11th October, 2018, 16th November, 2018 and 22nd November, 2018.
JUDGMENT
SMC. No. 7/2017 2
Qazi Faez Isa, J.
Background
1. Muslim candidates contesting elections have
to submit a declaration in a prescribed written form affirming that Prophet Muhammad
(peace and blessings be upon him) is the last prophet sent by Almighty Allah.
This declaration used to state, “I solemnly swear…” but the words were
substituted, in the Elections Act, 2017 with, “I believe…”1. Due to the
change in the wording of the declaration there were widespread protests. The
Government decided to undo the change made to the wording of the declaration and
revert the law to its original position.
2. The Minister of Law, Justice and
Parliamentary Affairs on 5th October, 2017 introduced a bill to
revert to the original text of the said declaration. The “Statement of
Objects and Reasons” of the Bill2 is reproduced hereunder:
Subsequent to the enactment of the Elections
Act, 2017 (XXXIII of 2017), misgivings have been expressed in the National
Assembly and also reported in the media regarding the wording of the
“DECLARATIONS BY THE CANDIDATE” in the nomination form (FORM A) attached with
the Act.
2. In order to avoid further controversy,
there is consensus amongst the political parties in the National Assembly that
the original text of “DECLARATION AND OATH BY THE PERSON NOMINATED”, included
in original Form-IA, should be restored in toto.
3. Misgivings have also been expressed
regarding the omission of Articles 7B and 7C consequent upon the repeal of the
Conduct of General Elections Order, 2002 (Chief Executive’s Order No. 7 of
2002). Again to avoid further controversy, there is consensus amongst the political
parties that the provisions of Article 7B and 7C ibid be retained through
amendment in section 241 of the Elections Act, 2017. Hence this Bill.
1 The Elections Act, 2017, The Gazette of
2 National Assembly of
31st January, 2019.
SMC. No. 7/2017 3
Parliament accepted the aforesaid amendment
and the Elections (Amendment) Act, 20173 was enacted on 19th October, 2017 and
the words “solemnly swear” found their way back into the law. The
relevant part of the declaration as it stands since 19th October,
2017 is reproduced hereunder:
I, the above mentioned candidate, solemnly
swear that:
(i) I believe in the absolute and unqualified
finality of the Prophethood of Muhammad (peace be upon him), the last of the
prophets and that I am not the follower of any one who claims to be a Prophet
in any sense of the word or of any description whatsoever after Prophet
Muhammad (peace be upon him), and that I do not recognize such a claimant to be
Prophet or a religious reformer, nor do I belong to the Qadiani group or the
Lahori group or call myself an Ahmadi.
(ii) I will be faithful to the declaration
made by the Founder of
TLP’s Dharna
3. Parliament had resolved the misgivings with
regard to the language of the declaration (on 19th October, 2017), however, the
Tehreek-e-Labaik
SMC. No. 7/2017 4
effectively paralyzed the cities of
Those needing medical treatment could not
reach doctors or hospitals. Ambulances transporting the seriously ill could not
get to Emergency.
4. The leaders of the dharna intimidated,
hurled threats, abused, provoked and promoted hatred. The media provided unabated
coverage to TLP. Anyone having a grouse against the government joined in. The
report4 submitted by Inter Services Intelligence (“ISI”) under the title
“Public Support” and subtitle “Political Parties/Personalities” listed the
following: “1) Sheikh Rasheed Ahmed (Chairman AML), 2) Ejaz-ul-Haq (PML-Z), 3)
PTI Ulema Wing Islamabad released audio message and 4) Sheikh Hameed (PPP)”.
Inflammatory speeches were delivered by irresponsible politicians. Some
unscrupulous talk-show hosts incited and provoked citizens. The free publicity
made TLP, a little known political party, into a phenomenon. Basking in the 4
C. M. A. No. 1229/2018.
SMC. No. 7/2017 5
limelight, TLP’s leadership became ever more
intransigent, abusive and aggressive. With each passing day, as they grew in
strength and number they became delusional and alleged that people would be
rendered objects of Divine displeasure (which is a criminal offence5) unless
they followed the chosen path of the TLP. Protests turned violent and spread to
other cities.
5. It was in abovementioned background that on
21st November, 2017, this Court passed an order, the relevant part whereof
is reproduced hereunder:
4. The prevailing situation demonstrates that
the matter is one of public interest and a number of Fundamental Rights of
citizens enshrined in the Constitution of the Islamic Republic of Pakistan,
including, right to life (Article 9), freedom of movement (Article 15), right
to education (Article 25A) are prima facie being infringed, which enables this
Court to take notice under Article 184 (3) of the Constitution…
6. We would therefore issue notices to the
Attorney General for
Article 184 (3) of the Constitution and
Supreme Court’s Jurisdiction
6. This Court had invoked jurisdiction under
Article 184 (3) of the Constitution of the Islamic Republic of Pakistan (“the
Constitution”), which provision is reproduced hereunder:
Without prejudice to the provisions of Article
199, the Supreme Court shall, if it considers that a question of public
importance with reference to the enforcement of any of the Fundamental Rights
conferred by Chapter 1 of Part II is involved, have the power to make an order
of the nature mentioned in the said Article.
5 Section 508 of the Pakistan Penal Code, 1860
makes it a punishable offence to induce a person to believe that he will be
rendered an object of Divine Displeasure, and illustration (a) thereunder is
with regard to a person who “sits dhurna”.
SMC. No. 7/2017 6
Chapter 1 of Part II referred to in Article
184 (3) of the Constitution is titled “Fundamental Rights” and Articles
9 through to 28 of the Constitution set out specific fundamental rights. These fundamental
rights are categorized as human rights in many countries and in international
treaties.
7. The jurisdiction invoked by this Court was
neither questioned nor challenged. However, as the original jurisdiction of this
Court was invoked we should ensure that it was done in accordance with the
Constitution. Part VII of the Constitution is titled “The Judicature”
and is divided into different chapters:
Chapter 1 – The Court, Chapter 2 – The Supreme
Court of Pakistan, Chapter 3 – The High Courts and Chapter 3A – Federal Shariat
Courts. The Constitution stipulates that, “No court shal have any
jurisdiction save as is or may be conferred on it by the Constitution or by or
under any law”6. The Constitution confers a number of different
jurisdictions on the Supreme Court. The most commonly used one is this Court’s
appellate jurisdiction whereunder appeals and petitions for leave to appeal are
heard;
these arise from cases already decided by a
High Court or tribunal8. Under its transfer jurisdiction this Court may, “transfer
any case, appeal or other proceedings pending before any High Court to any
other High Court”.9 The advisory jurisdiction of this Court may be availed
of by the President to seek the opinion of this Court, “on any
question of law which he considers of public 6 Article 175 (2) of the
Constitution of the Islamic Republic of Pakistan.
7 Article 185 of the Constitution of the
Islamic
8 Article 185 of the Constitution of the
Islamic
9 Article 186A inserted by the Revival of the
Constitution of 1973 Order (Presidential Order No. 14 of 1973) affirmed by the
Constitution (Eighth Amendment Act, 1985 and incorporated as Article 270A in
the Constitution of the Islamic Republic of Pakistan.
SMC. No. 7/2017 7
importance”10. The Supreme
Court is also empowered to decide, “Any dispute between any two or more
Governments”
11. In the exercise of its review jurisdiction
this Court has the power to review its own judgments and orders
12. The Supreme Court also has an ancillary
power, “for doing complete justice in any case or atter pending before it”
13. Jurisdiction under Article 184 (3)
may be invoked by the Supreme Court if two preconditions are met. Firstly, the
matter must be one of public importance and, secondly, it must pertain
to the enforcement of any of the Fundamental Rights. The term public importance
however is not defined in the Constitution. We may therefore, in accordance
with settled principles of interpretation, consider whether the same phrase – public
importance – is used elsewhere in the Constitution, and if so, by reference
thereto the scope of these words can be better determined. Every citizen has the
fundamental right to access “information in all matters of public
importance”14. The President may “obtain the opinion of the Supreme
Court on any question of law which he considers of public importance”15.
Appeals from a judgment, decree, order or sentence of an
11 Article 184 (1) of the Constitution of the
Islamic
13 Article 187 (1) of the Constitution of the
Islamic
14 Article 19A of the Constitution of the
Islamic
15 Article 186 (1) of the Constitution of the
Islamic
Emphasis added.
16 Article 212 (3) of the Constitution of the
Islamic
Emphasis added.
matter isn’t, in itself, sufficient to invoke
jurisdiction. The matter must be one of public importance, that is, it
must involve the rights of the public too.
9. In the case of Benazir Bhutto v
Federation of Pakistan17 this Court held that, “It is only when the
element of “public importance” is involved that the Supreme Court can exercise
its power to issue the writ”18. In the case of Manzoor Elahi v
Federation of Pakistan19, this Court had deliberated on what is
meant by public importance:
Now, what is meant by a question of public
importance.
The term “public” is invariably employed in contradistinction
to the terms private or individual, and connotes, as an adjective, something
pertaining to, or belonging to, the people; relating to a nation, state, or community.
In other words, it refers to something which is to be shared or participated in
or enjoyed by the public at large, and is not limited or restricted to any
particular class of the community. As observed by the Judicial Committee of the
Privy Council in Hamabai Franjee Petit v. Secretary of State for
India-in-Council ILR 39 Bomb. 279, while construing the words public
purpose such a phrase “whatever else it may mean must include a purpose, that is
an object or aim, in which the general interest of the community, as opposed to
the particular interest of individuals, is directly and vitally concerned”.
This definition appears to me to be equally applicable to the phrase “public
importance”.
The aforesaid definition of public
importance, has been consistently followed by this Court. In Suo Moto
Case No. 1320 the definition as had been enunciated in the cases Manzoor
Elahi and Benazir Bhutto (above) was reiterated:
The public importance of case is determined as
observed by this Court in Manzoor Elahi’s case (supra) on
question affecting the legal rights and liberties of the people at large, even
though the individual who may have brought the matter before the Court is of no
significance. Similarly, it was observed in Benazir Bhutto’s case (supra),
that public importance should be viewed with reference to freedom and liberties
guaranteed under the Constitution, their protection and invasion of these
rights in a manner, which raises a serious question regarding their enforcement,
irrespective of the fact whether such infraction of right, freedom or liberty
is alleged by an individual or a group of individuals.
17 Benazir Bhutto v Federation of
18 Benazir Bhutto v Federation of
19 Manzoor Elahi v Federation of
20 Suo Motu Case No. 13 of 2007 (PLD
2009 SC 217, 229).
In Sohail Butt v Deputy Inspector General
of Police21 this Court observed:
Public importance must include a purpose or
aim in which general interest of the community as opposed to the particular
interest of the individuals is directly and vitally concerned.
In Watan Party v Federation of Pakistan22
this Court said that the scope of public importance had been settled,
and it related to the general interest of the community:
It is settled that public importance must
include a purpose or aim in which the general interest of the community as
opposed to the particular interest of the individuals is directly and vitally
concerned.
Thus, a fortiori, this Court may invoke its
power under Article 184 (3) of the Constitution provided the matter is one of public
importance and pertains to the enforcement of any of the Fundamental
Rights.
10. To ensure that in matters of public
importance the citizens are not deprived of their fundamental rights is the
underlying objective of Article 184 (3) of the Constitution. Before an order is
made under Article 184 (3) of the Constitution it would be appropriate if this
Court identifies the public importance of the matter and the fundamental
right/s requiring enforcement. And every possible care should be taken before
making an order under Article 184 (3) since there is no right to appeal such an
order.
Applicability of Article 184 (3) of the
Constitution to this Case
11. Protestors had converged on major roads
and highways, they pelted stones, damaged and burnt vehicles and properties.
Ambulances, doctors, paramedic staff and other
organizations
21 Sohail Butt v Deputy Inspector General
of Police (2011 SCMR 698, 704).
22 Watan Party v Federation of
providing emergency services, including those
of firefighters, Bomb Disposal and Rescue were prevented from rendering
emergency assistance or would get unreasonably delayed searching for alternative
routes to the emergency. Deprived of access to doctors and medical facilities
countless people suffered. An eight-year-old boy lost his life because the dharna
on the Faizabad Interchange prevented the ambulance, in which he was being
taken, to reach the hospital23. There may have been many more such similar
cases which were not reported.
12. Preventing the sick from reaching doctors
and hospitals infringes their right to life (guaranteed under Article 9 of the Constitution)
which requires enforcement. Blocking roads for long durations prevents citizens
from exercising their right to freedom of movement (guaranteed by Article 15 of
the Constitution) and this right of theirs requires enforcement. When students
cannot attend schools and educational institutions their right to education (guaranteed
under Article 25A of the Constitution) requires enforcement. When litigants’
access to courts is blocked their right to fair trial and due process
(guaranteed by Article 10A of the Constitution) requires enforcement. Abusing,
threatening and attacking people undermines their right to live a life of
“dignity” (guaranteed under Article 14 (1) of the Constitution) which requires enforcement.
When shops and businesses are forced to shut, when people cannot pursue their
vocation, when poor daily workers are denied the possibility of earning a
livelihood their right to work (guaranteed by Article 18 of the Constitution)
requires 23 ‘Army called in to restore peace after cop martyred, over 200 hurt
in Islamabad clashes’ The News International (Islamabad, 25th November
2017) <https://www.thenews.com.pk/amp/248716-faizabad-sit-in-operation-todisburse-protesters-begins-as-deadline-ends>
accessed 1st February, 2019.
enforcement. When property is damaged or
destroyed the right to hold and enjoy property (guaranteed under Article 23 of
the Constitution) requires enforcement.
13.
Protests spread to other cities. The country
effectively came under lockdown. The matter undisputedly was one of public
importance and required the enforcement of the fundamental rights of
nearly every citizen. This Court therefore invoked its jurisdiction under Article
184 (3) of the Constitution.
Reports and Proceedings
14. On 23rd November, 2017 the learned
Attorney General for
25 C. M. A. No. 8578/2017.
26 C. M. A. No. 8733/2017.
SMC. No. 7/2017 12
of the Inspector General of Police,
15. On 25th November, 2017 the law enforcement
personnel used tear gas and water cannons to disperse the protestors, but failed,
and gave up after a hundred and seventy-three of them suffered serious injury.
The law enforcement personnel were not allowed to use firearms and were
provided only with anti-riot equipment28. “The mob/protestors were so
prepared that they even cut the wires of all relevant cameras installed within
the jurisdiction of
16. We had sought additional information from
PEMRA, the Ministry of Defence and the ISI on 19th March, 2018 and on 24th
27 C. M. A. No. 1229/2018.
28 C. M. A. No. 8733/2017.
29 C. M. A. No. 8733/2017, page 7.
30 C. M. A. No. 8733/2017, page 9.
31 ‘Why was
April, 2018. Inexplicably, the case was not
fixed again for over five months. On 11th October, 2018, we directed the
Election Commission of Pakistan (“the Election Commission”) to submit a report
regarding the registration of TLP as a political party and the provisions
whereunder it was registered. Information as to whether TLP abides by the
political parties’ code of conduct, whether it is foreign funded and whether it
has foreign membership was also sought. The matter next came up for hearing on
16th November, 2018 when it was noted (in the following paragraphs) that some
of the information had still not been provided:
2. On the last date of hearing the Inter Services
Intelligence (“ISI”) submitted CMA No. 8712/2018 which was to be
considered today. With the assistance of the learned DAG, we have examined the
report which states that ISI can neither ascertain whether a person has a bank account
nor if he is a tax payer, and such information can only be obtained from the
State Bank of
5. We expect the learned AGP to come prepared
to attend to the matters noted herein as well as those in earlier orders. We
also need to determine the parameters of protests and how these have to be
handled by the State. In this regard whether there are parallels with earlier
protests and how those were handled, including those of 12th May, 2007 in
6. To be continued to be treated as part
heard. To come up on 22nd November, 2018.
17. All the hearings in this case were
conducted in open court.
We had permitted those aggrieved and those
whose interest may be affected to come forward and had also permitted them to
file documents and written submissions. Two applications were submitted. The
first application32 was by Syed Iftikhar Hussain Gilani, a senior advocate of
this Court, who stated that his normal 32 C. M. A. No. 8732/2017.
commute from his residence to the Supreme
Court took about thirty-five minutes, which now, on account of the dharna,
was taking three hours. He further complained that the administration had
adopted a siege mentality by placing large shipping containers across roads to
block the protestors from continuing their advance.
He also pointed out that the protest had
spread to other parts of
18. The last hearing in this case took place
on 22nd November, 2018 when we again heard the learned AGP and others. After hearing
them we permitted an additional four weeks for the submission of documents,
reports and written arguments.
However, there was no filing and the four
weeks ended on 22nd December, 2018.
33 C. M. A. No. 8803/2017.
34 C. M. A. No. 8803/2017, page 6.
19. When this case commenced, both in the
Federation and the
Previous Protests and TLP Dharna
20. Mr. Siraj Ahmed in his application35
complained that the protestors of the 2014 dharna by PTI-PAT were not
treated like those of the TLP. We also wanted to understand the difference in approach
and had referred to the 12th May, 2007 Karachi massacre, the 2014 dharna by
PTI-PAT in Islamabad (referred to by Mr. Siraj Ahmed) and the TLP Faizabad
Interchange dharna by TLP36. Were the earlier gatherings handled
differently by the State?
21. 12th May, 2007
36 Order of 16th November, 2018.
express their support for him and an
independent judiciary.
General Musharraf however did not want the
Chief Justice to be welcomed. Massive shipping containers were brought from the
port on trucks and by using mobile cranes were placed across all roads leading
to the airport. But this did not deter the people, who abandoned their vehicles
and peacefully proceeded on foot to the airport, and this is when they were targeted
by gunmen. Fifty-five persons were mercilessly killed and hundreds suffered
bullet injuries on 12th May. 2007. The Muttahida Qaumi Movement (“MQM”)
and its leader, Mr. Altaf Hussain, supported General Musharraf. Incidentally,
the shipping containers used to block roads were brought from ports, which were
under the domain of the Federal Minister incharge of ports, a nominee of the
MQM.
22. 2014 dharna by PTI-PAT at
Litigants, and even judges, had to find
alternative routes to reach the Supreme Court. The PTI-PAT dharna took
place on
Pursuant to allegation of rigging in the
General Elections 2013 in particular by Pakistan Tehreek-e-Insaf, a political 37
The General Elections 2013 Inquiry Commission Ordinance, 2015, The Gazette of
Pakistan, Extraordinary, Part-I, dated 4th April, 2015.
party and denied by Pakistan Muslim League
(Nawaz), a political party and a party in power, an accord was arrived at
between them to setup a Commission to inquire into the allegation of rigging in
the General Elections 2013. The Commission to be known as the General Elections
2013 Inquiry Commission shall comprise three Judges of the Supreme Court of
Pakistan to be constituted by the Chief Justice of Pakistan on the request of
the Federal Government. The Commission shall inquire into and determine whether
or not, the General Elections 2013 were organised and conducted impartially,
honestly, fairly, justly and in accordance with law; the General Elections 2013
were manipulated or influenced pursuant to a systematic effort by design by
anyone; and the results of the General Elections 2013, on an overall basis, are
a true and fair reflection of the mandate given by the electorate.
The judicial commission which was constituted
was headed by Mr. Nasirul Mulk, the then Chief Justice of
23. We have considered three different protests
and the State’s handling of them. On 12th May, 2007 unarmed citizens wanted to go
to the airport to receive the Chief Justice of Pakistan. The Constitution
guarantees the freedom of movement, however, citizens were prevented from going
to the airport. Large shipping containers were placed across roads by the State
at public expense. The citizens were not deterred and proceeded on foot when
they were fired upon and by day’s end fifty-five lay dead and hundreds more
were injured. Seven years later came the PTI-PAT dharna. The
three-member Inquiry Commission, headed by the Chief Justice of Pakistan,
unanimously concluded that the results of the general elections of 2013
reflected the mandate of the 38 General Elections 2013 Inquiry Commission, Final
Report of the Genera Elections – 2013 Inquiry Commission 2015 (22nd July,
2015) page 236 [TOR 3a].
people. Then three years later the country was
faced with the TLP dharna.
TLP’s Methodology
24. The leadership of TLP must have noted that
despite the daylight slaughter of innocents on the streets of
Instead PTI received a lot of free publicity.
TLP had demanded that the words solemnly swear in the declaration of
Muslim candidates be restored. The government conceded and the law was amended.
As per unanimous view of all the intelligence
agencies TLP wanted to maximize political mileage for itself39. 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 163,952,000
rupees40. Nearly all economic activity in the country was brought to a virtual
standstill by TLP.
40 C. M. A. 1427/2018, page 31.
41 Gross Domestic Product of
calculated to be 88,786,180,821 rupees42.
Intelligence agencies reported that politicians visited TLP’s leadership camped
on the Faizabad Interchange43. 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 25th July general elections.
The Right to Protest
25. The Constitution does not specifically
stipulate a right to protest. However, democracy recognizes such a right, and
it was through democratic means that
43 C. M. A. No. 1229/2018.
44 The Preamble of the Constitution of the
Islamic Republic of Pakistan which is now, by virtue of Article 2A, a “substantive
part of the Constitution”.
45 The Preamble of the Constitution of the
Islamic
46 Article 16 of the Constitution of the
Islamic
47 Article 17 (1) of the Constitution of the
Islamic
member of a political party”48
and in the “in the right to freedom of speech and expression”49.
The Failure of the State
26. The TLP and its followers, from all
accounts, were determined to disrupt civic life. But, to meet this challenge
there was little preparation or preplanning by the government, the police and
other law enforcement agencies. No plan was apparently prepared to attend to
the different eventualities likely to emerge50.
The lack of preparedness to deal with similar
events is most likely the situation even today. It is also not clear whether there
was sufficient coordination between different authorities. A lack of vision,
clarity and indecisiveness seemed to prevail. The District Magistrate of the
49 Article 19 of the Constitution of the
Islamic
50 In different reports and documents which
have been submitted there is no plan attached nor is there any reference to
one. Islamabad Senior Superintendent of Police’s letters No. 25321-40/SEC dated
16th November, 2017, No. 25391-420/SEC dated 17th November, 2017, No.
25421-70/SEC dated 17th November, 2017 and No. 25581-610/SEC dated 19th
November, 2017 filed in C. M. A. 8578/2017 can not be categorized as plans.
51 Letter No. 10(3)-HC(G)/2017 dated 5th
November, 2017, page 14 of C. M. A.
No. 8578/2017.
The State however let them down.
The Right to Assemble Peacefully
27. The “right to assemble peacefully and
without arms”52 is “subject to any reasonable restrictions imposed by
law in the interest of public order”53. The right of assembly is recognized
as a right to preserve the democratic order, but it cannot be used to overthrow
a lawful government. Nor can the right of assembly be used to bring about a
revolution or insurrection. These principles were enunciated in the case of Islamic
It goes without saying that while the right of
Assembly is a very important right for the preservation of a democratic political
system yet it cannot be denied that no State can tolerate utterances or actions
which threaten to overthrow the Government established by law in that State by unlawful
or unconstitutional means. As observed by the American Supreme Court in the
case of American Communications v. Douds [(1951) 340
The maintenance of public order is the
paramount duty of the State. If anyone propagates, “hatred or contempt, or
excites or attempts to excite disaffection towards the Federal or Provincial Government”55
they commit the offence of sedition for which the punishment is imprisonment
for life. TLP sowed discord and dissension, it resorted to mob-rule, rioting
and the destruction of property.
52 Article 16 of the Constitution of the
Islamic
53 Article 16 of the Constitution of the
Islamic
54 Islamic
55 Section 124-A of the
28. The House of Lords of the
With regard to assembly on a public highway or
a public place it observed that if these:
… are reasonable, do not involve the
commission of a public or private nuisance, and do not amount to an obstruction
of the highway unreasonably impeding the primary right of the general public to
pass and repass, they should not constitute a trespass. Subject to these qualifications,
therefore, there would be a public right of peaceful assembly on the public
highway.57
29. The rights to free movement, peaceful
assembly and freedom of speech and expression (respectively Articles 15, 16 and
19 of the Constitution) are provided in Article 19 of the Indian Constitution, but
in
Demonstrations whether political, religious or
social or other demonstrations which create public disturbances or operate as
nuisances, or create or manifestly threaten some tangible public or private mischief,
are not covered by protection under Article 19(1). A demonstration might take
the form of an assembly and even then the intention is to convey to the person
or authority to whom the communication is intended the feelings of the group
which assembles. From the very nature of things a demonstration may take
various forms; ‘it may be noisy and disorderly’, for instance stone-throwing by
a crowd may be cited as an example of a violent and disorderly demonstration
and this would not obviously be within Article 19(1)(a) or (b)”.59
In Re Ramlila Maidan Incident case60
the Supreme Court of India observed:
56 Director of Pubic Prosecutions v Jones
(Margaret) and another [1999] 2 AC 240, 263.
57 Director of Pubic Prosecutions v Jones
(Margaret) and another [1999] 2 AC 240, 254 (Lord Irvine of Lairg, L.C).
58 Bimal Gurun v Union of
59 Bimal Gurun v Union of
60 In re Ramlila Maidan Incident (2012)
5 SCC 1.
To maintain and preserve public peace, and public
order
is unequivocal duty of the State and its
organs… There can be no social order or proper State governance without the
State performing this function and duty in all its spheres.61
The right of assembly, the freedom of
association and the freedom of speech cannot be exercised by infringing the fundamental
rights of others. Without obtaining permission public meetings cannot be held
on roads. Nor can a road be used as a camping ground or to assemble on it
indefinitely. Roads are for vehicular use and pavements are for the use of
pedestrians to enable the travelling public to move freely, which is
their fundamental right62.
TLP and the Election Commission
30. “Every citizen not being in the service
of
62 Article 15 of the Constitution of the
Islamic
63 Article 17 of the Constitution of the
Islamic
64 Article 17 (2) of the Constitution of the
Islamic
65 Article 17 (3) of the Constitution of the
Islamic
66 Page 45 of C. M. A. 9273/2018 submitted by
the Election Commission of Pakistan.
67 C. M. A. No. 9273/2018.
National Identity Card for Overseas
Pakistanis68 (“NICOP”), who was “entitled visa free entry to
(a) propagate any opinion, or act in a manner prejudicial
to the fundamental principles enshrined in the Constitution;
(b) undermine the sovereignty or integrity of
(c) promote sectarian, regional or provincial
hatred or, animosity;
(d) bear a name as a militant group or section
or assign appointment titles to its leaders or officebearers which connote
leadership of armed groups;
(e) impart any military or para-military
training to its members or other persons; or
(f) be formed, organized, set-up or convened
as a foreign-aided political party.
The phrase “foreign-aided political party”,
includes, receiving “any portion of its funds from foreign nationals”69.
31. 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
69 Explanation (c) of section 212 of the
Elections Act, 2017.
70 In the official gazette as per section 212
of the Elections Act, 2017.
32. The Election Commission’s report73 states
that TLP did not provide information about its funding despite repeatedly
directing it to do so. Section 211 of the Elections Act, 2017 and rule 161 (2) of
the Elections Rules, 2017, which were referred to by the Election Commission in
its notices to TLP, require that political parties submit the following
financial details:
Section 211 of the Elections Act, 2017
(1) A political party shall furnish to the
Commission the list of contributors who have donated or contributed an amount
equal to or more than one hundred thousand rupees to the political party for
its election campaign expenses.
(2) A political party shall furnish to the
Commission details of the election expenses incurred by it during a general
election.
Rule 161 (2) of the Elections Rules, 2017
(2) The details of election expenses under
this rule shall be submitted by the political party within sixty days of the publication
of the names of returned candidates in the official gazette.
The Director General (Law) and the Secretary
of the Election Commission confirmed that TLP did not provide the requisite financial
information, however, stated that the law is (to use their words) cosmetic
in nature74 therefore the Election Commission could not take action against
TLP.
71 Section 212 (2) of the Elections Act, 2017.
72 Section 212 (3) of the Elections Act, 2017.
73 C. M. A. No. 9273/2018.
74 Order dated 16th November, 2017.
SMC. No. 7/2017 26
33. The Election Commission is a
constitutional body75 and the Constitution stipulates that the Election
Commission shall ensure that, “the election is conducted honestly, justly,
fairly and in accordance with law, and that corrupt practices are guarded against”76.
The Election Commission is also required to undertake, “such other functions
as may be specified by an Act of Majlis-e-Shoora (Parliament)”77. Article
17 (3) of the Constitution requires political parties to account for the source
of their funds and section 211 of the Elections Act, 2017 demands that details
of election expenses be provided. The Election Commission confirmed that TLP
did not account for its funds and election expenses, but, surprisingly,
professes its helplessness because the law according to it is cosmetic in
nature. 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. The Constitution also empowers the Election Commission to get
requisite information from any executive authority - “All executive
authorities in the Federation and in the Provinces to assist the Commissioner
and the Election Commission in the discharge of his or their functions”78.
Freedom of Speech, Expression, Press and PEMRA
34. The freedom of speech and expression and
of the press are fundamental rights79. However, these rights cannot be used to denigrate
or undermine:
75 Article 218 of the Constitution of the
Islamic
76 Articles 218 (3) of the Constitution of the
Islamic
77 Article 219 (e) of the Constitution of the
Islamic
78 Article 220 of the Constitution of the
Islamic
79 Article 19 of the Constitution of the
Islamic
… the glory of Islam or the integrity,
security or defence of Pakistan or any part thereof, friendly relations with
foreign States, public order, decency or morality or in relation to contempt of
court, or commission of or incitement to an offence.80
The Pakistan Electronic Media Regulatory
Authority Ordinance, 2002 (the “PEMRA Ordinance”) mirrors the aforesaid restrictions
as set out in the aforequoted Article 19 of the Constitution and further
prohibits broadcasts which are, “likely to create hatred among the people or
is prejudicial to the maintenance of law and order or is likely to disturb
public peace and tranquility”81. The licences which PEMRA issues further
stipulate that broadcasts cannot be made which, “encourage violence, terrorism,
racial, ethnic or religious discrimination, sectarianism, extremism, militancy,
hatred”82.
35. TLP’s leadership created hatred amongst
the people, they abused, threatened and advocated violence; and this was broadcasted
by some private television channels. ISI’s report83 identified “Channel 92” as
a television channel supporting TLP and stated that its owners had supplied
food to the protestors occupying the Faizabad Interchange. PEMRA, however, did
not take action under the PEMRA Ordinance against any of its licencees for
violating the terms of their licences. PEMRA abdicated its statutory duty, a
duty which it was legally obliged to fulfil.
36. PEMRA also failed to protect the
legitimate rights of its licensed broadcasters. Broadcasts by “DAWN” and “Geo”
television channels were stopped/interrupted; complaints stating this were 80
Article 19 of the Constitution of the Islamic Republic of Pakistan.
81 Section 27 (a) of the PEMRA Ordinance,
2002.
82 Section 20 (c) of the PEMRA Ordinance,
2002.
83 C. M. A. No. 8712/2018.
acknowledged by PEMRA84. “DAWN” and “Geo” were
particularly targeted in the cantonment and defence housing authority areas of the
country, which too was confirmed by PEMRA. But, sadly, PEMRA looked the other
way. It did nothing to protect the interests of its licencees nor took action
against those cable operators who were responsible. On 19th March, 2018 and on
24th April, 2018, information was sought from PEMRA as to who was responsible, but
PEMRA professed ignorance.
37. In compliance with our order85 the
Pakistan Telecommunication Authority through the Deputy Attorney General for
11. Hate speech
Whoever prepares or disseminates information,
through any information system or device, that advances or is likely to advance
interfaith, sectarian or racial hatred, shall be punished with imprisonment for
a term which may extend to seven years or with fine or with both.
12. Recruitment, funding and planning of
terrorism
Whoever prepares or disseminates information,
through any information system or device, that invites or motivates to fund, or
recruit people for terrorism or plans for terrorism shall be punished with
imprisonment for a term which may extend to seven years or with fine or with
both.
The hate which was spread and the violence
which was incited through electronic means appears not to have been investigated,
let alone the violators prosecuted and punished. If serious violations of the
law are ignored then the law loses respect and efficacy.
84 Order dated 25th April, 2018.
85 Order dated 3rd January, 2018.
86 C. M. A. No. 2379/2018.
87 The Prevention of Electronic Crimes Act,
2016, The Gazette of
Censorship
38. Television channels and newspapers had
complained about interference in their broadcasts and the delivery of their publications.
We, therefore, tried to determine whether there was substance in their
complaints. The organisation of journalists88, editors89, broadcasters90 and
newspapers91 complained that media is being suppressed and at times even
silenced. The resolution92 of the Federal Executive Council of Pakistan Federal
Union of Journalists (“PFUJ”) makes troubling allegations:
The Press Freedom in
The Council of Pakistan Newspaper Editors (“CPNE”)
has alleged93 “media repression”, “that editors and journalists are
forced to self-censor their work amid pressure from certain quarters” and
it “appealed to all state and non-state actors to refrain from such unconstitutional
practices”. It seems that “DAWN”, the oldest English language newspaper of
the country, which was founded by Quaid-e-Azam Muhammad Ali Jinnah, was
targeted the most.
39. 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 88 Pakistan Federal Union of Journalists.
89 Council of
90
91 All
92 Federal Executive Council of
93 ‘CPNE passes resolution against media
repression’ Pakistan Today (
<https://www.pakistantoday.com.pk/2018/06/27/cpne-passes-resolutionagainst-
media-oppression/> accessed 1st
February, 2019.
should be hired or fired by media
organisations is also illegal. This Court has castigated those who had resorted
to such tactics in the past. It had directed that there should be “no
hindrance or obstruction”94 of television broadcasts and the Provincial
Police Officers were directed to take action against the perpetrators. 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.
40. A half century ago Justice Brendeis96 of
the Supreme Court of the
Those who won our independence believed that
the final end of the state was to make men free to develop their faculties, and
that in its government the deliberative forces should prevail over the
arbitrary. They valued liberty both as an end and as a means. They believed liberty
to be the secret of happiness and courage to be the secret of liberty. They
believed that freedom to think as you will and to speak as you think are means indispensible
to the discovery and spread of political truth; that without free speech and
assembly discussion would be futile; that with them discussion affords ordinarily
adequate protection against the dissemination of noxious doctrine; that the
greatest menace to freedom is an inert people; that public discussion is a
political duty;
and that this should be a fundamental
principle of the American government. They recognized the risks to which all
human institutions are subject. But they knew that order cannot be secured
merely through fear of punishment for its infraction; that it is hazardous to discourage
thought, hope and imagination; that fear breeds repression; that repression
breeds hate; that hate menaces stable government; that the path of safety lied
in 94 Dr. Shahid Masood v Federation of Pakistan (2010 SCMR 1849 at
pages 1860-1861).
95 Article 5 of the Constitution of the
Islamic Republic of Pakistan, inserted by the Eighteenth Amendment to the
Constitution by the Constitution (Eighteenth Amendment) Act, 2010.
96 Whitney v People of State of
the opportunity to discuss freely supposed
grievances and proposed remedies; and that the fitting remedy for evil counsels
is good ones… Men feared witches and burnt women. It is the function of speech
to free men from the bondage of irrational fears97.
41. Freedom of speech, expression and the
press are guaranteed as fundamental rights in the Constitution. Therefore, the quintessential
words of Justice Brendeis are equally applicable to the rights conferred by the
Constitution upon the citizens of this great country. Quaid-e-Azam Muhammad Ali
Jinnah wanted journalists to be responsible, independent and fearless and welcomed
criticism. He said:
The power of the press is great, but you must
remember that this power which you are wielding is a trust. Look upon it as a
great trust, and remember that you are guiding honestly and sincerely the progress
and welfare of your nation. At the same time, I expect you to be completely
fearless… If I go wrong, or if the League goes wrong in any direction of its
policy or programme, I want you to criticise it honestly.98
Intelligence Agencies
42. The report submitted by ISI did not
disclose the “source of livelihood, place of work, address, funding of their
organisations, et cetera”99 of the TLP leadership. Subsequently, we had
inquired whether they paid income tax or had bank accounts. ISI responded by
stating that it did not have the mandate to gather such information and
therefore was unable to provide answers to our queries100. The learned AGP was
thus asked101 to inform us about the law/rules/regulations governing ISI and
its mandate. The learned AGP tendered a document (in a sealed envelope) which spelled
out ISI’s mandate, but requested that the mandate of ISI should not be
disclosed. He did not give any reason for such 97 Whitney v People of State
of
98 Quaid-i-Azam Muhammad Ali Jinnah
(Speeches, Statements, Writings, Letters, etc.), Muhammad Haneef Shahid
(1st edn, Sang-e-Meel 1976) 51.
99 Order dated 23rd November, 2017.
100 C. M. A. No. 1229/2018 and 8712/2018.
101 As noted in our order dated 16th November,
2018.
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.
43. The
Country and their Intelligence
Agencies
Laws Governing Intelligence
Agencies
Secret Intelligence Service (MI6), Security
Service (MI5) and Government Communications Headquarters (GCHQ)
The Security Service Act, 1989, Intelligence
Services Act, 1994, Regulation of Investigatory Powers Act, 2000, Justice and
Security Act, 2013 and The Investigatory Powers Act, 2016.
Central Intelligence Authority (CIA) and
Federal Bureau of Investigation (FBI)
The National Security Act of 1947, Central
Intelligence Agency Act of 1949 and The Intelligence Reform and Terrorism
Prevention Act of 2004.
Intelligence and Security Act, 2017.
Australian Security Intelligence Organisation
(ASIO) and Australian Secret Intelligence Service (ASIS) Australian Security
Intelligence Organisation Act, 1979 and Intelligence Services Act, 2001.
Canadian Security Intelligence Service (CSIS)
The Canadian Security Intelligence Service
Act, 1984.
Norwegian Intelligence Service (
(FSA)
The Oversight of Intelligence, Surveillance
and Security Services Act of 1995.
We are disappointed in the manner in which the
Government handled this aspect of the case; by ignoring an issue it does not go
away. The perception that 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.
44. The late Air Marshal Asghar Khan, the
youngest officer who headed
Involvement of the officers/members of secret
agencies i.e.
45. 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 uniform106 the perception of their
involvement gained traction. The Director General of the Inter-Services Public Relations
(“ISPR”) has also taken to commenting on political matters: “history
will prove the 2018 general elections were transparent”107. The Armed
Forces, and all agencies manned by the 102 Air Marshal (Retd.) Muhammad
Asghar Khan v General (Retd.) Mirza Aslam Baig, Former Chief of Army Staff (PLD
2013 SC 1).
103 Article 244 of the Constitution of the
Islamic
104 Oath of the ‘Members of the Armed Forces’,
Third Schedule to the Constitution of the Islamic
105 Air Marshal (Retd.) Muhammad Asghar
Khan v General (Retd.) Mirza Aslam Baig, Former Chief of Army Staff (PLD
2013 SC 1, 119) [102 (11)].
106 ‘Why was
29 November, 2017) https://www.bbc.com/news/world-asia-42149535 accessed
1st February, 2019.
107 ‘History will prove 2018 elections were
transparent: DG ISPR’ DAWN (
personnel of the Armed Forces, including ISI,
Military Intelligence (“MI”) and ISPR serve
46. ISI states that it cannot monitor the
financials of those advocating violence and carrying out violent acts. However,
in the context of terrorism, the Anti-Terrorism Act, 1997 does envisage a role
for “Intelligence Agencies, Armed Forces and Civil Armed Forces”109.
Intelligence agencies should not ignore those who promote violence and hate. If the proponents
of violent ideology and action are not monitored and checked they often mutate against
the State and terrorize the people. Those who resort to abuse, hate and
violence should never be pampered, instead they should fear the State, its
police and intelligence agencies.
47. The Directorate of the Inter Service
Intelligence was established during the Premiership of Mr. Liaquat Ali Khan.
The Directorate’s first head, designated as the Director of Intelligence, 108
Article 245 of the Constitution of the Islamic Republic of Pakistan.
109 Section 19 of the Anti-Terrorism Act,
1997.
was Brigadier S. Shahid Hamid110. With very
limited resources the Directorate had managed to fulfill its assigned
responsibilities and it did so professionally and by strictly adhering to its
prescribed mandate (as disclosed to us), which did not include either politics or
the media. The newly founded State of Pakistan, which included the then
Quaid-e-Azam Muhammad Ali Jinnah visualized
Freedom Movement and
48.
111 The opening words of the Preamble to the
Constitution of the Islamic Republic of Pakistan.
112 Air Marshal (Retd.) Muhammad Asghar
Khan v General (Retd.) Mirza Aslam Baig, Former Chief of Army Staff (PLD
2013 SC 1, 101) [84], quoting Quaid-e-Azam Muhammad Ali Jinnah.
Prophet Muhammad (peace and blessings be upon
him), the founder of the great Islamic tradition of akhlaq (ethics and
morals) and aadab (decency and etiquette), who never uttered an abuse nor
a word which could be construed as abusive. Men and women of integrity,
sincerity and good manners achieved
Islam
49. Prophet Muhammad (peace and blessings be
upon him) is designated as Rehmatul lil Aalameen (Mercy of the Worlds).
Divine revelation states that his was a “great moral character”113 (khuluqin
azimin). The Prophet (peace and blessings be upon him) said, “I am sent
only to perfect the noble qualities of character”114; to bring about a
moral-ethical transformation. He was the epitome of virtue, ethics, morality
and self-abnegation. Threatening another, violating the law, occupying public
roads, destroying property, injuring or causing death does not emulate the
example of the Prophet (peace and blessings be upon him), his akhlaq and
aadab.
Those who employ such tactics cannot be the
standard bearers of the Muslim faith. Prophet Muhammad (peace and blessings be upon
him) taught his followers to live in peace and taught them to greet by saying –
“assalam-u-aleykum” (peace be upon you) and to respond to the greeting
by saying - “walaykum assalam” (and upon you too) or with a still better
response – “waleykum assalam wa rahmatullahe barakatuhu” (and upon you
too and upon you be the Blessings and the Mercy of Allah). Muslims must remain
vigilant against the self-righteous and arrogant. “The servants of (Allah)
Most Gracious are those who walk on the earth in humility, and when the ignorant
address them, they say, ‘Peace’ ”. The Almighty 113 Al-Quran, Surah
Al-Qalam (68) verse 4.
114 Reported in Tirmidhi.
dislikes pride and conceit – “Allah likes
not the proud and boastful”.
Those hurling abuses want only need to study
the Holy Quran which denigrates even the raising of one’s voice – “The
harshest of sounds without doubt is the braying of the ass”115.
50. The first words inscribed in the
Constitution are – “In the name of Allah, the most Beneficent, the most
Merciful”116. Its preamble then unequivocally affirms that sovereignty
belongs to Allah Almighty alone and that the authority is to be exercised by the
people “within the limits prescribed by Him”117. The Constitution does
not permit “the glory of Islam”118 to be denigrated. When a mob abuses,
threatens and resorts to violence ostensibly in the name of Islam it does
exactly this. True believers abhor such conduct. Slowly, and over a period of
time, the real face of Islam is being effaced and the voices of believers, who practice
akhlaq and aadab, have been muffled. Ironically, the most offensive
speech and violent behavior purports to represent Islam and Muslims; this is
against Islam and the sunnah of Prophet Muhammad (peace and blessings be
upon him). The Constitution holds out the promise that Muslims will be enabled
to live “in accordance with the fundamental principles and basic concepts of
Islam”119, and the State shall endeavour, “to promote unity and observance
of the Islamic moral standard”120. Abuse, threats and violence are the
antithesis of the Islamic moral standard.
115 Al Quran, Surah Luqman (31) verse
19.
116 The first line which precedes even the
title, ‘The Constitution of the Islamic Republic of Pakistan’.
117 The opening words of the Preamble to the
Constitution.
118 Article 19 of the Constitution of the
Islamic
119 Article 31 (1) of the Constitution of the
Islamic
120 Article 31 (1) of the Constitution of the
Islamic
51. This case brought to the fore a number of
important matters.
We examined the Constitution, determined what
constitutes public importance, interpreted fundamental rights, considered the consequences
of institutional overreach, the tactics used to achieve political agendas, how
the State protects citizens and their fundamental rights, the security
mechanisms in place, the mandate and role of the intelligence agencies, the
independence and obligations of the media, the responsibilities of PEMRA, the role
of the Election Commission and what Islam teaches.
52. We are aware that some of the matters
considered by us are moral, political and religious. For instance, those in
government on 12th May, 2007 (when unarmed citizens were massacred) or those who
extended support to the Faizabad Interchange mob (who disrupted civic life and
destroyed property) are today in coveted positions at the highest levels of
government. While the general moral decline and the loss of political and
religious values can only be commented upon we however have not lost sight of
the parameters of the jurisdiction of this Court under Article 184 (3) of the
Constitution.
Conclusion
53. For the reasons mentioned above this case
is disposed of with the following declarations and directions:
(1) Subject to reasonable restrictions imposed
by law, citizens have the right to form and to be members of political parties.
(2) Every citizen and political party has 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. The right to assemble and protest is circumscribed only to the
extent that it infringes on the fundamental rights of others, including their
right to free movement and to hold and enjoy property.
(3) Protestors who obstruct people’s right to
use roads and damage or destroy property must be proceeded against in accordance
with the law and held accountable.
(4) 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.
(5) All political parties have to account for
the source of their funds in accordance with the law.
(6) 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.
(7) When the State failed to prosecute those
at the highest echelons of government who were responsible for the murder and
attempted murder of peaceful citizens on the streets of Karachi on 12th May,
2007 it set a bad precedent and encouraged others to resort to violence to
achieve their agendas.
(8) 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.
(9) 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.
(10) 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.
(11) 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.
(12) All intelligence agencies (including ISI,
IB and MI) 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 newspapers.
(13) 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.
(14) 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.
(15) 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.
(16) The police and other law enforcement
agencies are directed to develop standard plans and procedure with regard to
how best to handle rallies, protests and dharnas, and ensure that such
plans/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.
(17) We direct the Federal and provincial
governments to monitor those advocating hate, extremism and terrorism and prosecute
the perpetrators in accordance with the law.
54. It would be apt to conclude this judgment
by quoting Quaide-Azam Muhammad Ali Jinnah:
I consider it my duty to call upon the Muslims
to temper their resentment with reason and to beware of the dangers which may
well overwhelm their own State. Should they allow their feelings of the moment
to gain mastery over their actions.121
It is of utmost importance that
is bound to shake… its foundation and cause
irreparable damage to its future.122
I pray to God that He who has bestowed on us
this great boon of a sovereign State, may now give our people courage to…
preserve intact the peace of
55. The office is directed to send copies of
this judgment for information and compliance to the Government of Pakistan, through
the Cabinet Secretary, Secretary Defence, Secretary Interior, Secretary Human
Rights, Secretary Religious Affairs and Interfaith Harmony, Secretary
Information, the Chief Secretaries of the provinces, the Election Commission of
Pakistan, the
Electronic Media Regulatory Authority, the
122 Quaid-i-Azam Muhammad Ali Jinnah
(Speeches, Statements, Writings, Letters, etc.), Muhammad Haneef Shahid
(1st edn, Sang-e-Meel 1976) 97.
123 Quaid-i-Azam Muhammad Ali Jinnah
(Speeches, Statements, Writings, Letters, etc.), Muhammad Haneef Shahid
(1st edn, Sang-e-Meel 1976) 98.
Inter Services Intelligence, the Director
General Inter Services Public Relations and the head of the Military
Intelligence. Secretary Interior is directed to forward the judgment to the
Director General Intelligence Bureau, Director General Federal Investigation
Agency, Inspector Generals of Police of the provinces and the
56. This case and all pending applications are
disposed of in the aforesaid terms.
Judge
Judge
Bench-III
(Rana Ali Wajahat Khan)
_______.2.2019
Announced in open Court at
Judge
Approved
for Reporting
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