ISLAMABAD: The Islamabad High Court chief justice on Monday highlighted the need for ending colonial legacy and removing draconian laws from the statute book to protect the fundamental rights of free speech, freedom of assembly and association.

Chief Justice Athar Minallah stated this when Islamabad Deputy Commissioner Hamza Shafqaat informed the court that criminal cases registered against 23 protesters had been withdrawn.

Police had arrested them for protesting the arrest of Pashtun Tahaffuz Movement (PTM) chief Manzoor Pashteen a few days ago.

Initially, the police invoked sedition charges against the protesters. However, the relevant section of the of Anti-Terrorism Act (ATA) was also added to the FIR in the light of the observation of additional district and sessions judge (ADSJ) Mohammad Sohail.

ADSJ Sohail had, while dismissing the post-arrest bail petition of the arrested people, observed that the protesters had chanted slogans against the government and the army and, therefore, they might be booked under the anti-terror law.

Chief Justice Minallah calls for removing draconian laws to protect fundamental rights of free speech

IHC Chief Justice Minallah, however, granted bail to the protesters and expressed displeasure over the remarks of ADSJ Sohail and invoking sedition charges against the unarmed protesters.

On Monday, Deputy Commissioner Shafqaat appeared before the court and said that the matter was reviewed and consequently criminal cases registered against the petitioners had been withdrawn.

The court noted that “liberty, freedoms of expression, assembly and association are constitutionally guaranteed rights and their importance cannot be overstated in a democracy. It is inevitable for the progress and development of a just society to jealously guard against intrusions in these crucial constitutionally guaranteed rights”.

“It is obviously not expected from democratically elected executive authorities and constitutional forums to allow attempts, in any form, aimed at suppression of free speech,” Justice Minallah observed, adding that “it is for the Majlis-i-Shoora (parliament) to weed out from the statute books those draconian offences and powers which have a colonial legacy and are inconsistent with the fundamental rights guaranteed under the Constitution”.

According to the IHC chief justice, “the offence of sedition under Section 124-A of the Pakistan Penal Code, 1860, definitely requires to be considered by the Majlis-i-Shoora having regard to the constitutionally guaranteed fundamental rights of free speech and the freedom of assembly and association. Likewise, the powers under Section 144 of the Criminal Procedure Code, 1898, cannot be exercised in derogation to the fundamental rights guaranteed under the Constitution”.

On Feb 11, the court had observed that “every detention is a tort unless the authority directing it can adequately justify the actions and intrusions in the constitutionally guaranteed rights. If the authority fails to adequately justify deprivation of liberty strictly in accordance with the law, then in such an eventuality the latter would be exposed to claims of damages on the ground of false imprisonment”.

The court disposed of the petitions filed by the protesters “with the expectation that the authorities while exercising executive powers shall take utmost care in ensuring that the fundamental rights guaranteed under the Constitution are not infringed”.

Advocate General for Islamabad Niazullah Niazi said that “citizens should exercise restraint by avoiding criticism of the state and its institutions”.

Chief Justice Minallah, however, observed that neither “the state nor its institutions are so weak to fear dissent or criticism. Dissent or criticism is an integral part of democracy and its protection is a constitutional obligation of the state. Stifling dissent and criticism is an attribute of a repressive society and unacceptable in a democracy governed under the constitution”.

“It is, therefore, expected that the principles of democracy and the fundamental rights guaranteed under the Constitution will be jealously guarded by the executive authorities while exercising powers vested under the law,” the court concluded.

Published in Dawn, February 18th, 2020