Bail plea of PTM, AWP workers: Dissent or criticism integral part of democracy: IHC

The Islamabad High Court (IHC) on Monday said that dissent or criticism was an integral part of democracy and its protection was a constitutional obligation of the State and the courts.

A single bench of IHC comprising Chief Justice Athar Minallah stated this, while hearing bail petitions of 23 workers of the Pashtun Tahaffuz Movement (PTM) and the Awami Workers Party (AWP), who were arrested by the Islamabad police last month, while protesting against the arrest of PTM chief Manzoor Pashteen.

Islamabad Deputy Commissioner Hamza Shafqat informed the court that the matter was reviewed and consequently the criminal cases registered against the petitioners had been withdrawn.

The bench on the basis of his statement disposed of the case.

The bench noted in its order, "Though important questions of public importance have been raised in these petitions but in the light of the statement made by the deputy commissioner, the prayers sought are no more justifiable. The grievance of the petitioners to the extent of registration of the criminal case stands redressed."

It added, "These petitions are disposed of 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."

During the hearing, the Advocate General, Islamabad Capital Territory stated that citizens should exercise restraint by avoiding criticism against the State and its institutions.

In this regard, Justice Athar said: "It is noted that neither State nor its institutions are so weak to fear dissent or criticism. Dissent or criticism is an integral part of democracy and its protection 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 also observed that liberty, freedoms of expression, assembly and association were constitutionally guaranteed rights and their importance could not 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. They are the most precious and important rights for strengthening democracy and upholding the sanctity of the Constitution.

"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. It is for the Majlis-e-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," maintained Justice Minallah.

He continued that the offence of "sedition" under Section 124-A of the Pakistan Penal Code, 1860 definitely requires to be considered by the Majlis-e-Shoora (Parliament) 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.

The IHC CJ said, "This Court had observed in the last order, dated 11 February 2020 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 law, then in such an eventuality the latter would be exposed to claims of damages on the ground of 'false imprisonment'".