ISLAMABAD: The release on Sunday of over 600 Pakistan Tehreek-i-Insaf (PTI) and Pakistan Awami Tehreek (PAT) protesters – arrested over the past couple of days – on the orders of the Islamabad High Court and various magistrates indicates that the government is aware that the charges will not stick, but continues to round up people, ostensibly in a bid to disrupt the ongoing protests.
These arrests, made under the Maintenance of Public Order (MPO) 1960 and for violations of Section 144 of the Criminal Procedure Code (CrPC), have been widely dubbed as harassment by most observers.
These laws, which date from the times of the British Raj, were originally used by the colonisers to stamp out dissent among the natives of united India.
Legal experts say most cases registered under Section 144 are liable to be quashed in court
Following subsequent partitions; India, Pakistan and even Bangladesh retained the laws within their legal framework.
In nearly all cases, the laws are still used to silence political protest and often target political opposition parties.
In Pakistan, the laws have been used, at one point or another, against all major political parties, currently in parliament.
Section 144 of the CrPC, entitled ‘Power to issue order absolute at once in urgent cases of nuisance or apprehended danger’, is most notorious.
But in the Pakistan Penal Code (PPC), Sections 141 thru 160 – part of Chapter VIII, entitled ‘Of Offences Against The Public Tranquillity’ – lay out the rules under which an assembly of five or more persons is declared illegal.
The promulgation of Section 144 of the CrPC can, according to a former law officer of the state, only be carried out by the relevant commissioner, deputy commissioner or additional commissioner.
Tariq Mehmood Jahangiri, a former Deputy Attorney General, told Dawn that when Section 144 is in force, suspects are usually charged under Section 188 of the PPC, entitled ‘Disobedience to order duly promulgated by public servant’.
The complainant in FIRs registered in such cases, according to Mr Jahangiri, can only be the promulgating authority, i.e. the various commissioners or their boss, the chief commissioner.
Any FIRs where the complainant is a police officer – as has been the case with most cases registered in recent days against PAT and PTI workers – is illegal and liable to be quashed by the courts.
According to documents available with Dawn, in all the cases registered for violation of Section 144 against more than 400 individuals over the weekend, sub inspectors and assistant sub inspectors were the complainants.
First, on August 13, about 20 workers of both protesting parties were detained under section 3 of the MPO, which states, “Government, if satisfied that with a view to preventing any person from acting in any manner prejudicial to public safety or the maintenance of public order, it is necessary so to do, may, by an order in writing, direct the arrest and detention in such custody as may be prescribed.”
These men were released from Adiala Jail after the detention order was challenged.
According to a lawyer who has represented individuals detained under MPO, those booked under Sections 3, 5 and 16 of the MPO are not allowed visitors and can only meet their family with the approval of the provincial home secretary. The same applies to those detained under Section 144 of the CrPC.
On August 31, police arrested over 100 protesters over the August 30 violence, where demonstrators stormed Parliament House and also tried to enter into the Prime Minister’s House.
In addition to various sections of the PPC, the police also invoked section 7 of Anti Terrorism Act, 1997 against the protesters. This move, legal experts say, is excessive. It would be difficult for the government to prove such charges before an Anti Terrorism Court and the accused may be released by the courts if the prosecution cannot provide enough evidence to convince the court, they said.
Then, ahead of PTI’s planned ‘One Nation Day’ celebrations to mark the one-month anniversary of its protests on Saturday, over 250 people were booked under Section 188 of the PPC.
Shiraz Ranjha, a PTI lawyer, told Dawn that violation of Section 188 was a non-bailable, but was confident that the party would be able to secure the release of their workers.
It is surprising that these laws have never been amended by any of the political parties that have come into power, despite the fact that they have been used against opposition parties several times in the past.
Mr Jahangiri told Dawn that the violation of Section 188 used to be a bailable offence, because the punishment was quite mild.
However, in the wake of the Qaumi Ittehad movement, which saw widespread protests against the government of Zulfikar Ali Bhutto, the law was changed and the offence wasa made non-bailable.
A senior lawyer who has argued on behalf of several political prisoners in the past, told Dawn that whenever he appeared on behalf of workers from the Pakistan People’s Party, “Judges would grimace and say that it was your government that made the laws that you are now being prosecuted by.”
Published in Dawn, September 15th, 2014