Prosecute hateful fatwa givers under terror laws

Wed, February 06, 2019

ISLAMABAD: The Supreme Court on Wednesday recommended that persons, issuing edict or fatwa, harming others, must be dealt with under the Anti-Terrorism Act and ruled that all intelligence agencies must not exceed their respective mandate.

A two-member bench of the apex court comprising Justice Qazi Faez Isa and Justice Mushir Alam disposed of a suo motu case of the 2017 Faizabad sit-in staged by the Tehreek-e-Labbaik Pakistan (TLP) and issued a detailed judgment. Last year in November, the court had reserved its judgment.

The judgment authored by Justice Qazi Faiz Isa ruled that a person issuing an edict or fatwa, which harms others or puts others 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. The verdict observed that the law applies equally to the government and state institutions.

“Protesters who obstruct people’s right to use roads and damage or destroy property must be proceeded against in accordance with the law and held accountable”, the verdict held. The court observed that subject to reasonable restrictions imposed by law, citizens have the right to form and to be members of political parties.

“Every citizen and political parties have the right to assemble and protest provided such assembly and protest is peaceful and complies with the law imposing reasonable

restrictions in the interest of public order,” the verdict ruled, adding that the right to assemble and protest is circumscribed only to the extent that it infringes on the fundamental rights of others, including their right to free movement and to hold and enjoy property.

The court noted that when the state failed to prosecute those at the highest echelons of government who were responsible for the murder and attempted murder of peaceful citizens on the streets of Karachi on 12th May, 2007, it set a bad precedent and encouraged others to resort to violence to achieve their agendas.

The verdict ruled that the Constitution earmarks the responsibilities of the Election Commission which it must fulfil, however, if a political party does not comply with the law governing political parties then the Election Commission must proceed against it in accordance with the law.

“The law is most certainly not cosmetic as contended on behalf of the Election Commission,” says the verdict and held that all political parties have to account for the sources of their funds in accordance with the law.

The verdict stressed that the state must always act impartially and fairly and held that the law is applicable to all, including those who are in government and institutions must act independently of those in government.

The verdict ruled that broadcasters who broadcast messages advocating or inciting the commission of an offence violate the Pemra Ordinance and the terms of their licences and must be proceeded against by Pemra in accordance with the law.

“Cable operators who stopped or interrupted the broadcast of licenced broadcasters must be proceeded against by Pemra in accordance with the Pemra Ordinance, and if this was done on the behest of others then Pemra should report those so directing the cable operators to the concerned authorities,” says the verdict. The verdict said Pemra has been failed to protect the rights of its licence holders.

The verdict further held that those spreading messages through electronic means which advocate or incite the commission of an offence are liable to be prosecuted under the Prevention of Electronic Crimes Act, 2016.

The court ruled that all intelligence agencies (including ISI, IB and MI) and the ISPR must not exceed their respective mandates. “They cannot curtail the freedom of speech and expression and do not have the authority to interfere with broadcasts and publications, in the management of broadcasters/publishers and in the distribution of newspapers,” says the verdict.

The court ruled that intelligence agencies should monitor activities of all those who threaten the territorial integrity of the country and all those who undermine the security of the people and the state by resorting to or inciting violence. The verdict said the role of agencies in foreign countries is clear.

“To best ensure transparency and the rule of law, it would be appropriate to enact laws which clearly stipulate the respective mandates of the intelligence agencies,” the verdict ruled.

The verdict held that the Constitution emphatically prohibits members of the armed forces from engaging in any kind of political activity, which includes supporting a political party, faction or individual. The court directed the Government of Pakistan through the Ministry of Defence and the respective chiefs of Army, Navy and Air Force to initiate action against the personnel under their command who are found to have violated their oath.

The court said that in the context of terrorism, the Anti-Terrorism Act, 1997 does envisage a role for intelligence agencies, armed forces and civil armed forces. Similarly, police and other law enforcement agencies were directed to develop standard plans and procedure with regard to how best to handle rallies, protests and dharnas, and ensure that such procedures are flexible enough to attend to different situations.

The verdict clarified that though the making of such plans/procedures is not within the jurisdiction of the apex court, however, the court expects that in the maintenance of law and order every effort will be taken to avoid causing injury and loss of life.

The court also directed the federal and provincial governments to monitor those advocating hate, extremism and terrorism and prosecute the perpetrators in accordance with the law. It directed its office to send copies of this judgment for information and compliance to the Government of Pakistan, through the cabinet secretary, secretary defence, secretary interior, secretary human rights, secretary religious affairs and interfaith harmony, secretary information, the chief secretaries of the provinces, the Election Commission of Pakistan, Pemra, Pakistan Telecommunication Authority and the chief commissioner of Islamabad.

Similarly, the court directed the secretary defence to forward the judgment to the heads of the armed forces, the DG ISI, DG ISPR and the head of the Military Intelligence. The secretary interior is directed to forward the judgment to the DG Intelligence Bureau, DG Federal Investigation Agency, IGs of Police of the provinces and the Islamabad Capital Territory. The secretary information is directed to forward the judgment to the directors of all press and information departments, who in turn are directed to forward it to all newspapers published in their territories. Pemra is directed to forward this judgment to all television channels and all its licenced broadcasters and operators.

Justice Qazi Faiz Isa concluded the judgment by quoting Quaid-e-Azam Muhammad Ali Jinnah: “I consider it my duty to call upon the Muslims to temper their resentment with reason and to beware of the dangers which may well overwhelm their own state. Should they allow their feelings of the moment to gain mastery over their actions. It is of utmost importance that Pakistan should be kept free from disorder, because the outbreak of lawlessness... is bound to shake... its foundation and cause irreparable damage to its future. I pray to God that He who has bestowed on us this great boon of a sovereign state, may now give our people courage to... preserve intact the peace of Pakistan for the sake of Pakistan.

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