PTI ‘Azadi March’: SC orders ISI, IB to file report on D-Chowk violence

We are disappointed to note that bona fide effort made by court was disrespected, reads written order

ISLAMABAD:

The Supreme Court on Wednesday sought reports from director-generals of Inter-Services Intelligence (ISI), Intelligence Bureau (IB), and IG Islamabad, interior secretary and others over the alleged involvement of PTI leaders in instigating party workers to reach Islamabad's D-Chowk in violation of Supreme Court's May 25 order.

"The AGP claims that the PTI workers and supporters moved forward to the D-Chowk area in response to the call made by their leader. Notwithstanding the said request by the AGP, we exercise restraint for the time being for a number of reasons. Firstly, Mr Imran Khan has called off the rally/public meeting. That gives a recess to the charged mob witnessed last night," the written order issued by majority members of larger bench led by Chief Justice of Pakistan Umar Ata Bandial stated.

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It said that prudence advises that time be given for sanity to prevail among the stakeholders. "In any event, facts and materials need to be collected to establish the sequence of events, the identity of the perpetrators and of the instigators, if any. At this stage therefore it is directed that the IGP ICT, the Chief Commissioner ICT, the Secretary Ministry of Interior, the Director General Intelligence Bureau, and the Director General ISI shall file reports answering the questions," the order said.

The order asked the executive authorities to apprise as at what time did Imran Khan make the announcement for party workers to reach D-Chowk.

"When, where and how did the crowd cross the barricade to enter a hitherto closed area. Was the crowd entering the Red Zone organised or supervised or did it move randomly? Were there any acts of provocation or breach of assurance by the government? Was any action or treatment meted out by the ICT police against the protesters disproportionate to the actual or perceived wrong committed by the protesters," the court questioned.

The court also asked how many protesters managed to enter the Red Zone. "Which security arrangements, if any, were relaxed by the executive authorities? Whether any security barrier cordons were broken or breached by protestors? Did any protestor/party worker reach the G-9/ H-9 ground? How many civilians were injured, killed, hospitalised or arrested," the order said.

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The order said that the said reports shall be filed within one week for perusal in chambers by the members of this larger bench.

However, one member of the larger bench Justice Yahya Afridi dissented from the majority opinion by saying that there is sufficient material available to initiate a contempt proceeding against former prime minister Imran Khan over violation of the May 25 order.

"There is a need for verification of, inter alia, factual aspects of the events that occurred in order for the Court to evaluate and decide whether action for violation of assurances/undertaking given to the Court and recorded in our order dated 25.05.2022 ought to be initiated and against whom."

The court observed that the disregard of assurances and undertakings given to the court involves separate proceedings from the present one. Therefore, it added, that the prayer made by the learned AGP in these proceedings is misconceived.

The court dismissed AGP's application. "For independent proceedings to be maintained, relevant and credible material must be presented to the court for it to assess whether there are valid grounds to justify appropriate action against the offending persons, if any," it added.

The court also noted that directions to executive authorities in its May 25 order was to protect the constitutional rights of the people of Pakistan as guaranteed in Article 15, which secures the right of free movement, and Article 16, which protects their right of freedom of assembly.

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"These constitutional provisions are to be read in conjunction with the most crucial right guaranteed by the Constitution, namely, the right to life. The violation of the right to life of citizens under Article 9 of the Constitution caused by the arrest of hundreds of political workers across the country without recording FIRs or serving detention orders were accordingly quashed by our aforesaid order as a protective measure under the Constitution. However, it must be understood that each of the foregoing fundamental rights is subject to corresponding qualifications. The provisions of Articles 9, 15 and 16 of the Constitution may be read to appreciate the point. The right to life and liberty is interpreted widely and the same cannot be interfered with except as authorised by law."

The court maintained that the freedom of movement can be subjected to reasonable restrictions imposed by law in the public interest, adding that the freedom of assembly may be regulated by similar restrictions applied in the interest of public order.

"The foregoing limitations on the rights granted by the Constitution empower the state to take only such reasonable, proportionate and lawful action that is necessary in aid of public interest and public order so that public place, public life and property are not disturbed, disrupted or destroyed."

"By acting upon assurances given on behalf of the top leadership of PTI and issuing directions to the government, our order dated 25.05.2022 created a balance between the mutual rights and obligations of the protesting people, the ordinary public and the duties of the state," the order stated.

It said that the balance was recorded in good faith by the court whilst trusting the representations made on behalf of the two opposing parties before it. "We are disappointed to note that the bona fide effort made by the court was disrespected," it added.

"Although it was meant to create harmony between the two opposing sides for the sake of protecting the public interest and the constitutional rights of the people, such order was passed by trusting the representations made and assurances given to the court."

The court order stated that the judicial trust reposed by the court on the parties before it confers moral legitimacy and authority upon their actions.

"The resulting high moral ground lends credibility to the entitlement and to the propriety of actions taken by such parties. In the present case, to say the least, the moral high ground held by the parties has diminished because public rights, interests, and property of the disinterested public have been breached and damaged badly."

The order said that the court expected that the high functionaries of the executive throughout the country and the top leadership of the PTI and other political parties shall abide and settle a fair code of securing free, fair, and peaceful political activity in the country leading to the holding of the national election.

"It may be reiterated that whilst the right of peaceful protest is a constitutional right it must be exercised subject to permission by the state. Such permission must be granted unless there are reasonable restrictions imposed on valid grounds in terms of Articles 15 and 16 of the Constitution. In other words, the right of protest cannot be denied without lawful, reasonable and proportionate grounds nor can such executive authority hamper public life or injure public or private property," it said.

The court order stated that any violation of the balance envisaged in this behalf by the Constitution and the law is cognisable by the competent courts for enforcement.

The court also disposed of the Islamabad High Court Bar Association petition in this connection.