• Imposition of Section 144 sans illegal act not violation of fundamental rights, IHC rules
• Advises party to seek permission from district administration

ISLAMABAD: The PTI’s planned long march received a jolt on Monday when the Islamabad High Court (IHC) dismissed its challenge to the restriction on processions in the federal capital.

IHC Chief Justice Athar Minallah, however, advised the party to adopt legal recourse and seek permission from the district administration for holding any procession. The petitioners may come to the court to redress their grievance in case of any issue, the chief justice noted.

Senior PTI leaders Asad Umar and Ali Nawaz Awan, both elected to the National Assembly from Islamabad in 2018, had challenged the imposition of Section 144 of the Code of Criminal Procedure, which prohibits public gatherings in view of threats to public order.

Appearing on behalf of the petitioners, Babar Awan argued that Section 144 was imposed for an indefinite period, which was a violation of the fundamental rights guaranteed under Articles 8, 15 and 16 of the Constitution.

The section that could have been enforced for two days had been placed by the district administration for past four months, he added.

The court observed that the petitioners continued to enjoy the status of members of parliament and asked their counsel if they had been prevented by public functionaries in any manner.

Mr Awan said the petitioners were ‘not aggrieved’ by any act of public functionaries, but the vires of Section 144 had been ‘challenged in public interest’.

Justice Minallah also asked whether Section 144 had been repealed by the provincial legislatures, where the PTI held majority and whether it had never been imposed by the executive authorities in those provinces. The counsel was then informed that Section 144 was imposed on multiple occasions when PTI was in power.

The chief justice observed, “Section 144 explicitly shows that the power has been conferred upon the executive authorities in order to protect the citizens from harm and to prevent unlawful disturbance. The grounds described under sub section (2) of section 144 definitely meet the threshold of ‘reasonable restrictions’ in the context of enjoying the constitutionally guaranteed rights under Articles 15 and 16 [freedom of movement and freedom of assembly].”

The court noted that the principles and law regarding regulating political rallies, assembly or meetings intended to be scheduled by a political party were highlighted by the Supreme Court.

“Maintenance of law and order or preventing disturbance of public tranquillity falls within the exclusive domain of the executive authorities.

“Their decisions regarding handling of rallies, protests or assemblies are not justiciable nor is a court equipped or competent to substitute their assessments and opinions,” explained Justice Minallah.

However, he said, the court would treat a petitioner as an ‘aggrieved person’ in the context of Article 199 of the Constitution if an act of a public functionary could demonstrably be shown as an abuse of powers conferred under Section 144.

According to the IHC decision, no political party or group of persons can claim a right to hold rallies, protests or other assemblies “in disregard to the principles and law” highlighted by the apex court in the aforementioned judgment. The power conferred under Section 144 of CrPC is meant to be exercised solely in public interest.

Published in Dawn, October 11th, 2022