To ban or not to ban

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“144. Power to issue order absolute at once in urgent cases of nuisance or apprehended danger. in cases where, in the opinion of a District Magistrate, Sub-Divisional Magistrate, (or of any other Executive Magistrate] specially empowered by the Provincial Government or the District Magistrate to act under this section, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in manner provided by section 134, direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management, if such Magistrate considers that such direction Is likely to prevent, or tends to prevent, obstruction, annoyance or injury, or risk of obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, or an affray.”

 

Bolo Bhi recently created a timeline to determine how many times, between 2000-2013 Section 144 was imposed in the great nation of Pakistan. It is a living timeline and will continually be updated upon research and findings. The reason for conducting the research was to determine whether the state has been within its powers to impose section 144. It is available under Timelines in the Resources category on Bolo Bhi’s website.

Section 144 confers power to magistrates to restrict assembly in a certain place, in an attempt to preemptively counter any potential disturbances of peace. The authorities can also, under this section, restrict any action or possession if it is the cause of the nuisance that the authorities are trying to prevent. As per subsection 6, such an imposition may only last 2 2 months, unless lifting the ban may lead to threats to security and lives of citizens. The law here is providing an immediate solution to the state when faced with an urgent situation, and does mandate a written order (Section 134). If a written order cannot be directed to the individual(s) in question, then it must be written and published in a manner that is readily accessible and can be effectively communicated.

[A magistrate is defined as: “Any individual who has the power of a public civil officer or inferior judicial officer, such as a Justice of the Peace.” Online Legal Dictionary]

Generally being a nation notorious for violent rioting, protests and lawlessness, one can draw the conclusion that most of the time, these magistrates/ministers and public authorities seem to have made justifiable decisions.

The imposition of section 144 has generally interfered with the freedom to assemble and has some implications on the right to bear arms.

The freedom to assemble and protest is one ingrained in world laws: Universal Declaration of Human Rights (Article 20), International Covenant on Civil and Political Rights (Article 21)

European Convention on Human Rights (Article 11) American Convention on Human Rights (Article 15). Domestic laws also protect one’s right to assembly, for example, Article 16 of the Pakistani Constitution categorizes the right to assembly as a fundamental human right, with reasonable restrictions.

The right to bear/possess arms, however, is not one that can be considered a universal right. The Universal Declaration of Human Rights does not provide for it, and countries have their own laws that govern possession. The Pakistan Arms Ordinance (1965) governs licensing and possession of arms in the nation; however it must be noted that the right to possession is NOT guaranteed by law. Private arms are also strictly prohibited in “educational institutions, hostels or boarding and lodging houses, fairs, gatherings or processions of a political, religious, ceremonial or sectarian character, and on the premises of Courts of law or public offices” [http://www.gunpolicy.org/firearms/region/pakistan]

Freedom of assembly comes with stipulations; this freedom may be revoked when the authorities may presume that such a gathering may lead to riots and violent protesting, or may endanger life and security of individuals. As made clear by the law, citizens’ right to assembly must be without arms, and should be peaceful and for just cause. Unlicensed weapons are illegal, and licenses may also be revoked at any time, even if legal.

Looking over the research, its hard to argue with the reasoning behind the impositions. As a nation accustomed and, perhaps, desensitised to violence and chaos, the state may have to take extreme countermeasures, which they should not be criticised for. It is their duty to uphold law and order in the nation, and protect their citizens, even if doing so may sometimes lead to a violation of citizen rights. The state, however, may only impose this section for up to 2 months usually, and thus should have the foresight to look into long term solutions to curb violence and terrorism.

Difficult to digest that for once, the state and I agree on something, I must, thus, highlight the times when the state has acted ultra vires. A few instances in 2006, of Lowar Sharif, and Women Rights Rally led by Mai (each different instances), or the imposition during the LLB exams in Rawalpindi. The aforementioned instances are generally non violent assemblies, for justified reason, and the “injury” or “danger” in these events cannot be clearly identified. Another instance that should be mentioned here is the post election protests of 2013. Being denied our constitutional and democratic right to vote, the people of the nation, peacefully, marched out on the street to demand things to be made right; a Section 144 being imposed on this event can be seen as a negative step taken by the state. It would be miraculous if the government had managed to do something flawlessly, and may have even given a cynical individual as myself some hope. But that is just wishful thinking.

 An activist, in the hopes of finding yet another instance of an abuse of power, embarked on this research, which ended up in being without controversy; the media headlines, the written text and reporting, however, delivered the news in a way that on first glance, one immediately assumed overstepping of mandates. But after reviews and follow ups on the media text, the government’s decision and imposition can be understood.

The law does give them the power to limit the mentioned rights in order to prevent damage and injury, and protect its citizens from instances of harm and danger. On the other hand an argument can be made instead of the ban, the government should look into long term solutions to avoid these events all together. For instance, the government could designate an area for those who choose to fly kites and provide certain rules and regulations to limit injury, or develop small water parks for people to relieve themselves from the heat. Certain activities of citizens can be identified as annual, and/or regular, at a certain time of the year and thus, the patterns can be established and alternate solutions can be found.

However, what is significant that the research has helped identify a potential distrust and lawlessness of the nation. Despite bans/restrictions being placed, citizens continued to carry out the banned actions; it could be the distrust of intentions of their government, or frankly, a lack of concern to uphold the law. Case in point, the ban of kite flying; year after year people die as a result of carelessness, yet the society continues to participate in this activity. Or the ban on swimming in the sea; high tides causing drowning, spread of waterborne diseases (indicated by health reports) didn’t deter citizens from escaping to the beach in search of relief from the heat. This blatant disregard for authority and law is evident in the behaviour of citizens Yet, we complain if the government takes unreasonable and aggressive stances in order to compel the citizens to abide by the law.

Its important for citizens to recognise the role they place in implementing the law. Policing and punishment can only do so much; it is the job of every citizen to uphold the law and respect it, and inspire others to do the same. We shouldn’t complain about the law if we don’t follow it; what good are written laws if one doesn’t understand the importance of them? So today, if you get pulled over (for a justified reason hopefully), make sure to not bribe the policeman to get away with it, take that ticket/fine, and abide by the traffic laws. You can’t complain about the corrupted if you are the corrupter now, can you?

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