Aamir Qureshi—AFP
The Supreme Court on Wednesday directed intelligence agencies, including the Inter-Services Intelligence (ISI), to submit a report within seven days explaining whether the government or the Pakistan Tehreek-e-Insaf (PTI), or both, had violated the judiciary’s orders for the party’s ‘Azadi March’ on May 25.
The 14-page majority order—issued on a plea filed by the Islamabad High Court Bar Association against the government’s blocking of roads in the federal capital to halt the PTI’s protest—observed that while peaceful protest was a constitutional right, it must only “be exercised subject to permission by the state.” It stressed that 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.”
Regretting that the court’s efforts to ensure “balance” between the rights and obligations of the protesters, the public and the duties of the state had been “disrespected,” it said the court had acted on assurances of the top leadership of the PTI. “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,” it said, adding that it expected the government, the PTI, and all other political parties to abide by, and establish, a fair code of securing free, fair, and peaceful political activity in the country “leading to the holding of the national election.”
The five-member bench, led by Chief Justice of Pakistan (CJP) Umar Ata Bandial, noted that it was still unclear whether the riots at D-Chowk on May 25 were a result of mob anger—as alleged by the PTI—or could be blamed on the PTI leadership—as claimed by the government. “So far there is no evidence or allegation that such acts were committed on the instigation of any party or happened randomly. At its most elementary level, the PTI leader appears to have assured [the court of] the holding of a political rally at the G-9/H-9 ground and therefore not to assemble and sit in another venue including at D-Chowk in G-5 Islamabad,” it said.
Yet, the court acknowledged, the attorney general had maintained that PTI workers and supporters had moved toward D-Chowk after its top leader, Imran Khan, urged them to gather there instead of the designated area, and had committed contempt of court. “Notwithstanding the said request by the AGP, we exercise restraint for the time being for a number of reasons,” the court said.
“Firstly, Mr. Imran Khan has called off the rally/public meeting. That gives a recess to the charged mob witnessed last night. Secondly, 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,” it said. In this regard, the court directed the Islamabad inspector general of police; the interior secretary; the director-general of the Intelligence Bureau; and the director-general of the ISI to file reports within seven days and answer the following questions:
- At what time did Imran Khan call on his 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 organized 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 Islamabad police against the protesters disproportionate to the actual or perceived wrong committed by the protesters?
- 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 protesters? Did any protester/party worker reach the G-9/ H-9 ground?
- How many civilians were injured/killed/ hospitalized/arrested?
“There is 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 ought to be initiated and against whom,” it added.
Dissenting note
While the majority judgment dismissed the government’s plea to initiate contempt proceedings against the PTI leadership without more proof, Justice Yahya Afridi authored a dissenting note in which he said that he disagreed with the CJP’s ruling that “there is no credible material” for initiating independent contempt proceedings against Khan.
He quoted Khan’s video statement—issued over an hour after the court order directing the government to remove all barriers to the PTI’s long march—to explain his stance. “Wherever Pakistanis are, there is good news: the Supreme Court has issued an order that there will be no hurdles and no one will be arrested. This is why I want all Pakistanis to come out of their homes today; people in Islamabad and Rawalpindi should try their best to reach D-Chowk because I will reach there within one-and-a-half-hours,” the PTI chairman said.
“The above statement of Khan, coupled with his conduct that followed thereafter in proceeding beyond the venue decided in the order for the political gathering, is in my opinion, sufficient to prima facie show that Khan disobeyed the order of this court,” wrote Justice Afridi. “With profound respect, instead of calling for reports from the named officials of the state agencies/departments, as directed by my learned brother, I am of the opinion that there is sufficient material before this court to proceed against Imran Khan for the alleged disobeyance of the court order dated 25.05.2022 passed in Constitution Petition No.19, which warrants the issuance of notice by this Court to Mr. Imran Khan to explain why contempt proceedings should not be initiated against him,” he added.
Justice Afridi also expressed “surprise” at the attorney general’s plea to “allow law enforcement agencies” to arrest rioters for the maintenance of law and order. “The prayer made is against the very principle of trichotomy of powers enshrined in our Constitution, which has assigned separate roles to the three organs of the state: the legislature, the executive and the judicature. To maintain law and order in the country is the domain and mandate of the executive. Thus, the very prayer is contrary to the constitutional mandate and is, therefore, not legally entertainable,” he wrote.