Right to “peaceful” protest 

Dr. Ikramul Haq & Abdul Rauf Shakoori

“The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others”—Article 21 of the International Covenant on Civil and Political Rights, adopted on December 16, 1966, by the General Assembly Resolution 2200A (XXI)

The right of peaceful protest is recognised by the United Nations (UN) General Assembly with certain limitations. Pakistan has ratified the International Covenant on Civil and Political Rights to the extent of allowing this right. However, Pakistan so far has not opted to be a state party to Optional Protocol to the International Covenant on Civil and Political Rights that allows the people to file a petition before Human Rights Committee (OHCRH) believing that state is violating or violated their human rights listed under this Covenant.

In the democratic world, the right of peaceful protest is cherished and respected as long as it remains peaceful and does not violate public safety, property or pose any threat to national security and law and order. However, where protestors cross the limits becoming a threat to national security or public safety, incite violence, damage public property as well as health or morals, then concerned governments take serious note and punish wrongdoers.

In the United States of America (USA), the First Amendment protects the right to assembly and express views through protests that extends to freedom of speech, the press, assembly, and the right to petition the Government for redress of grievances. However, law enforcement agencies are allowed to place certain restrictions to maintain peace and ensure public security.

The recent Baltimore protests escalated to violence in which arrested demonstrators were later punished. The law not only imposes a sentence to be slapped with a misdemeanor but also imposes fine from $500 to $5,000. Additionally anyone who is caught harming property would have to face a specific jail term with bail set at US$ 500,000.

Article 12 of the Charter of Fundamental Rights of the European Union, 2000 extends the right of freedom of assembly and association. It guarantees everyone the right to freedom of peaceful assembly and freedom of association at all levels, in particular in political, trade union, and civic matters, which entitles everyone to form and to join trade unions for protection of their interests. Like the USA countries in Europe do not tolerate violence through protests.

Like Europe and the USA, other countries also punish protestors involved in violation. For example, Hong Kong enforces various restrictions on travel, re-education, through labour or imprisonment. North Korea mandates five years’ correction in jail, and Russia imposes heavy fines, etc.

Pakistan’s turbulent social and political landscape has been a source of frequently-erupting protests and clashes. Triggers have been different, including but not limited to political, social, ethical, and religious issues. This continuous trend is hampering businesses and the economic cycle and is impeding the process of making Pakistan an investment friendly country. Article 16 of the Constitution of Islamic Republic of Pakistan [the Constitution] unequivocally states: “Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality”. 

Similarly, the Pakistan Penal Code 1860, the Code of Criminal Procedure 1898, the Maintenance of Public Order, 1960, and the Police Order 2000 not only extend the right of peaceful assembly but explain the procedure for permission of staging protest. However, the recent trend in Pakistan shows that protestors paying no regard to the due process of law, block main highways, key entry points of the cities and allied artery networks which disrupt people’s lives causing unmanageable traffic jams.

The Global Protest Tracker, a one-stop source for following crucial trends in the most significant anti-government protests worldwide since 2017, lists some notable protests, marches and sit-ins in the last few years in Pakistan:  

• Pakistan Tehreek-e-Insaf (PTI) long March and sit-in for 126 days in Islamabad
• Kissan Ittehad (Pakistan Farmers’ Unity) agitations for rights of farmers
• PTI’s nationwide protests against no confidence motion
• fuel price protests June 2022
• Tehreek-e-Labbaik (TLP), religious-cum-political-outfit, long march/protests of October 2021
• youth killing protests March 2021, triggered by discovery of dead bodies of four young men in a ditch outside the city of Bannu, Khyber Pakhtunkhwa
• opposition protests October 2021 against the government of Imran Khan
• blasphemy protests, November 2018—Asia Bibi’s acquittal by the Supreme Court of Pakistan 
• Pashtun Tahafuz (Protection) Movement (PTM) protests of 2018 against alleged extrajudicial of Naqeebullah Mehsud by police
• oath protests, November 2017—proposal to change Pakistan’s electoral oath that would alter a reference to the holy Prophet Muhammad (PBUH) 

In addition to above, mentioned by Global Protest Tracker, the country has witnessed the following by political parties of Pakistan in their individual capacity:

• JUI Azadi March /15-day sit-in in Islamabad, led by Maulana Fazl ur Rehman
• Pakistan Peoples Party (PPP) Long March under the leadership of Bilawal Bhutto Zardari during the last days of PTI’s regime
• Pakistan Muslim League Nawaz (PMLN) Long March led by Maryam Nawaz and Hamza Shehbaz Sharif
• Ongoing Haqeeqi Azadi [real independence process] March by PTI

It is obvious that in Pakistan all parties are at liberty to stage their protests, apparently without any prior restrictions. Protest organisers, whether political or civil, take pride in violating special operating procedures agreed with the authorities for public assemblies. In majority cases, they do not even bother to contact the authorities for permission as required by the law. Their protests sometimes not only damage public property but also cause distress to peace-loving citizens and disturb business activities by forcing shopkeepers and markets to close down their operations. These actions not only create problems for ambulances transporting patients to hospitals but also students going for examinations.

In most of the cases, the courts have also shown benevolence towards protestors in the name of democratic rights. While the administration puts restrictions and issues guidelines to ensure public safety and security, the courts tend to conversely facilitate protestors by assigning them their choice venues, putting restrictions on the administration. Resultantly, the protestors roam around freely, damage infrastructure and the law enforcement agencies look helpless before these aggressive elements. The incident of May 25, 2022, according to official quarters, confirmed this when the protesters burnt trees and damaged public property in Islamabad during the PTI long march, allegedly flouting directions contained in the Supreme Court’s order of May 25, 2022. The Supreme Court decided to start contempt proceedings against the former Prime Minister, Imran Khan, on the application of government, in a split 4-1 decision on October 27, 2022. The reply was sought for November 2, 2022 and then for November 5, 2022.

On November 5, 2022, Imran Khan’s lawyer filed an application in the contempt of court case after the PTI’s head on November 3 sustained bullet wounds in his legs in Wazirabad during the Haqeeqi Azad March that started from Lahore on October 28, 2022. It was prayed in the application that as Imran Khan was admitted in a hospital due to the “unfortunate incident” it was not possible to submit a reply. In view of the seriousness of the matter, on November 7, 2022 the Supreme Court allowed one more week.

We have to realize that Pakistan is fifth largest populous country in the world and seventh nuclear state. Continuation of protests without any valid reasons are not only affecting our overall economy but also posing threats to our national security.  Our parliament, law enforcement agencies and courts have an extended responsibility to ensure the citizens’ safety and security without compromising their right to peaceful protests. However, Pakistanis should also consider and analyse the demands and actions of organisers before joining them.

Parliament should form strict rules for protests, law enforcement agencies should implement them and courts should play an impartial role acting as watchdogs to check fair application of those rules. Pakistan’s economy is plummeting. Recent floods have devastated one-third of Pakistan but our internal politics is adding fuel to fire to the miseries of the citizens. Peaceful protest is a democratic right subject to conditions and accountability of organizers depending on their previous or existing positions in the government. Our judiciary should also revisit its role. Extending blank immunity for protests by disabling the administration will not do any good to the country. Rather it would lead to anarchy, which is a potential threat to our national security and economy.

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Dr. Ikramul Haq, Advocate Supreme Court, specialises in constitutional, corporate, media, ML/CFT related laws, IT, intellectual property, arbitration and international tax laws. He is country editor and correspondent of International Bureau of Fiscal Documentation (IBFD) and member of International Fiscal Association (IFA). He isVisiting Faculty at Lahore University of Management Sciences (LUMS) and member Advisory Board and Visiting Senior Fellow of Pakistan Institute of Development Economics (PIDE).

Abdul Rauf Shakoori, Advocate High Court, is a subject-matter expert on AML-CFT, Compliance, Cyber Crime and Risk Management. He has been providing AML-CFT advisory and training services to financial institutions (banks, DNFBPs, investment companies, money service businesses, insurance companies and securities), government institutions including law enforcement agencies located in North America (USA & CANADA), Middle East and Pakistan. His areas of expertise include legal, strategic planning, cross border transactions including but not limited to joint ventures (JVs), mergers & acquisitions (M&A), takeovers, privatizations, overseas expansions, USA Patriot Act, Banking Secrecy Act, Office of Foreign Assets Control (OFAC).