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Is Supreme Court’s Faizabad sit-in Judgement an example of rigid Textualism?

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News Analysis |

In the latest development, the Supreme Court of Pakistan has directed the government, law enforcers, intelligence agencies and the army’s media wing to operate within their mandate. The apex court has declared its decision in a Suo Motu case of the 2017 Faizabad sit-in staged by the Tehreek-i-Labbaik Pak­is­tan (TLP). On Nov 22, 2018, a two-judge SC bench comprising Justice Qazi Faez Isa and Justice Musheer Alam had reserved its judgment and closed the hearing of the case that was initiated on a Suo Motu on Nov 21, 2017.

In 2017, the government of Pakistan Muslim League-Nawaz (PML-N) was accused of having drafted some objectionable changes to Khatam-e-Nabuwat in the Election Act 2017. The TLP Chairman Khadim Hussain Rizvi not only condemned it but also organized a sit-in in Faizabad to demand the resignation of the law minister Zahid Hamid. The government initially ignored the protest but later on, it had to deal with it since the protestors paralyzed daily activities in the federal capital.

It is also important to note that many political analysts and legal experts view the judgment of the court as ‘over-legalistic’ which has failed to take into consideration the existing socio-political realities.

As the government launched an operation against the TLP members nationwide protests erupted. Roads in all major cities of Pakistan were immediately blocked, residences of politicians were attacked, and anti-government slogans were raised by the protestors.  Finally, Pakistan Army played the role of mediator and as a result, an agreement was signed between the government and TLP.

The judgment has drawn some broad and important conclusion. For example, the court has directed the federal and provincial governments to monitor and prosecute those advocating hate, extremism, and terrorism. It also ordered the government ─ through the defense ministry and respective chiefs of the armed forces ─ to initiate action against armed forces’ personnel found to have violated their oath.

Read more: Tehreek e Labaik fails to capitalize Faizabad sit-in

Observers argue that Asghar Khan is an example of the fact that how spy agencies took place in manipulating the political process. But the SC’s insistence to implement its decision and make Asghar Khan case an exemplary case is also a reflection of the rule of law and independence of the judiciary.

The judgment further states that any person who issues an edict or fatwa that “harms another or puts another in harm’s way must be criminally prosecuted under the Pakistan Penal Code, the Anti-Terrorism Act, 1997, and/or the Prevention of Electronic Crimes Act, 2016.”

It is worth noting here that the TLP leadership issued Fatwas not only against the judges who convicted Mumtaz Qadari, the killer of governor Punjab Mr. Salman Taseer, and Ms. Asia Bibi, a Christian woman accused of blasphemy and acquitted by the apex court but also against the army chief. For many political commentators, such ‘irresponsible’ statements by the religious leaders were a threat to public order in the country already experiencing social instability and political uncertainty.

Pakistan army was ordered by the civilian government to come in and help to reach a peaceful settlement of the issue. For many experts, it cannot and should not be taken as army’s hand behind the protest.

Moreover, the judgment penned by Justice Isa has also clarified that individuals, as well as political parties, have the right to assembly and protest but within ‘reasonable’ restrictions imposed by the law. The apex court has also observed that the state should always be neutral and institutions must work independently to ensure the rule of law.

Finally, the judgment states that Inter-Services Intelligence, the Intelligence Bureau, Military Intelligence and the Inter-Services Public Relations “must not exceed their respective mandates”. It also reinforced the idea of freedom of speech which, the court said, is also subject to the law.

Read more: Supreme Court not satisfied with ISI’s report on Faizabad sit-in

However, analysts point out many flaws in the judgment. For instance, the court has used repeatedly the term ‘reasonable’ and ‘hate speech’ but without clearly defining it.  Prominent legal expert Ms. Reema Omer tweeted and said: “Three takeaways for me from the #Faizabad judgment: 1. There’s a constant tussle between what SC is saying and what it can say given the limits of the judicial domain. This shows there’s some introspection about the use of Art. 184(3) The tension is summarised well in this para:”

She further said that “2. As is often the case with such sweeping judgments, the analysis is very powerful but the directions lack teeth + declarations do little to clarify existing standards What is hate speech? What are unreasonable restrictions? We get a restatement of the law – not much clarity”

And also she added that “3. Given the lack of clarity on what constitutes “hate speech” and how it is being used as an excuse to silence dissenting/critical voices, the emphasis on agencies + Govt. monitoring, taking action against such content is concerning, as is the direction to use ATA in such cases”

But at the same time, many analysts acknowledged the judgment and appreciated the court. Mehr Tarar, a prominent columnist, said that “Way to go, Supreme Court, thank you. This is something I have been writing about for years: there should be absolutely NO leniency for those who incite violence or hatred that leads to violence. You cannot hold the state and people hostage misusing religion that forbids it all.”

It is also important to note that many political analysts and legal experts view the judgment of the court as ‘over-legalistic’ which has failed to take into consideration the existing socio-political realities. For example, the PML-N committed a mistake by omitting an important clause from the nomination form and it was taken up by the religious parties. Pakistan is a religiously conservative society where people in rural as well as urban areas revere authority and religious leaders.

Read more: Faizabad Dharna Discredits Army

Therefore, a charged group of people in Islamabad that was ready to die in the name of the Prophet (PBUH) needed to be treated with great care. Pakistan army was ordered by the civilian government to come in and help to reach a peaceful settlement of the issue. For many experts, it cannot and should not be taken as army’s hand behind the protest. It was further clarified when the TLP leadership in Lahore issued Fatwas against the army chief and grilled the armed forces.

Therefore, it is argued that the present case needed moderate contextualism not rigid textualist approach to ensure the supremacy of law and stability of public order.