The International Human Rights Framework on the Right of Peaceful Assembly
Pakistan is a state party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Pakistan is not a state party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the state has violated their human rights as protected under the Covenant.
There is no regional Asian human rights treaty to which Pakistan could become party.
The Domestic Legal Framework on the Right of Peaceful Assembly
Article 16 of the 1973 Constitution of Pakistan (as amended) grants every citizen the right "to assemble peacefully and without arms, subject to any reasonable restrictions imposed by law in the interest of public order".
Freedoms of assembly and association under Articles 16 and 17 of the Constitution of Pakistan are not unfettered and the state may impose reasonable restrictions in the interest of “public order”. The term “public order” has not been specifically defined, but it was held by the Lahore High Court in Abdul Hameed Qadri v. S.D.M. LahorePLD 1957 Lahore 213.and subsequently in Shukar Din v. Government of West PakistanPLD 1965 Lahore 522.that danger to property, human life, and safety and the disturbance of public tranquility fall within the purview of reasonable restrictions that may be imposed in the public interest by state officials and law enforcement agencies to avert danger or disturbances.Association for Progressive Communications, Report on the State of Freedom of Peaceful Assembly and of Association Online in Pakistan, at: https://www.apc.org/sites/default/files/FoAA_Online_Report_Final_0.pdf.
In November 2019, in the Islamabad High Court, Chief Justice Athar Minallah stated that
a peaceful protest staged by unarmed persons is a constitutionally protected right…. This right stems from the fundamental rights of freedom of assembly, freedom of association and freedom of speech/expression, which are guaranteed the Articles 16, 17 and 19 of the constitution respectively…No law-abiding citizen can, therefore, be denied the right of protest…. The state only in extraordinary and exceptional circumstances can restrain a person from exercising their right to protest on the grounds of national security….
Peaceful protesters cannot be allowed to infringe the fundamental rights of other citizens. It is thus the duty of public functionaries to ensure that the constitutionally guaranteed rights of every citizen are protected. Maintaining public order is a crucial responsibility of the state and its functionaries….
The right to protest is indeed not an absolute right but it is subject to reasonable conditions. It is the responsibility of the law enforcing authorities to consider several factors while imposing restrictions or conditions for the purposes of regulating a peaceful protest so that the rights of other citizens also remain protected.https://tribune.com.pk/story/2080642/1-ihc-disposes-petitions-jui-f-azadi-march/.
According to Article 233 of the Constitution, when a Proclamation of Emergency is in force, the President may, by Order, declare that the right to move any Court for the enforcement of fundamental rights "shall remain suspended for the period during which the Proclamation is in force, and any such Order may be made in respect of the whole or any part of Pakistan".
A range of national legal instruments concern aspects of assemblies in Pakistan: the 1860 Pakistan Penal Code, the 1898 Code of Criminal Procedure, the 1960 Maintenance of Public Order, and the 2002 Police Order.
Authorisation in writing from the Head of District Police or Assistant or Deputy Superintendent of Police is required for any assembly. Spontaneous assemblies are therefore unlawful, although they sometimes occur without police intervention. Under the 1860 Penal Code, the authorities may refuse to allow an assembly to be held if they determine it is likely to cause a breach of the peace.S. 120, Penal Code.It is also accepted that law enforcement agencies may impose restrictions regarding the route or the venue of a protest.
In Islamic Republic of Pakistan v. Abdul Wali Khan,PLD 1976 SC 57.the Supreme Court held: “Freedoms of speech, press, and assembly are dependent upon the power of the constitutional government to survive. If it is to survive, it must have the power to protect itself against unlawful conduct and under some circumstances, against incitements to commit unlawful acts.”
In February 2020, the Chief Justice of the Islamabad High Court declared that
the powers under Section 144 of the Criminal Procedure Code, 1898, ["Power to issue order absolute at once in urgent cases of nuisance or apprehended danger"] cannot be exercised in derogation to the fundamental rights guaranteed under the Constitution.https://www.dawn.com/news/1535171.
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the state and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
Under the 1898 Code of Criminal Procedure, if a person "forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest." It is also provided, however, that this does not grant "a right to cause the death of a person who is not accused of an offence punishable with death or with [imprisonment for life]." With respect to assemblies, Section 128 allows force to be used to disperse an assembly.
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
Section 129 of the 1898 Code of Criminal Procedure even allows use of firearms to disperse an assembly "under the specific directions of an officer of the police not below the rank of an Assistant Superintendent or Deputy Superintendent of Police". This does not comply with international law.
A police officer may also call on the armed forces to disperse the assembly.
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
In its 2017 Concluding Observations on Pakistan, the Human Rights Committee did not address the right of peaceful assembly. In the context of its 2017 Universal Periodic Review under the Human Rights Council, Pakistan's national report also did not address the right of peaceful assembly.
Office of the United Nations High Commissioner for Human Rights
In 2018, the Office of the United Nations High Commissioner for Human Rights (OHCHR) issued a report on the human rights situation in Indian-Administered and Pakistan-Administered Kashmir.OHCHR, "Report on the Situation of Human Rights in Kashmir: Developments in the Indian State of Jammu and Kashmir from June 2016 to April 2018, and General Human Rights Concerns in Azad Jammu and Kashmir and Gilgit-Baltistan", 14 June 2018, at: https://www.ohchr.org/Documents/Countries/IN/DevelopmentsInKashmirJune2016ToApril2018.pdf.It reported several restrictions on the freedom of speech and expression in Pakistan-administered Kashmir. It stated that:
The interim constitution of AJK has placed several restrictions on anyone criticizing AJK’s accession to Pakistan, ... in contravention to international standards on the rights to freedoms of expression and opinion, assembly and association. It explicitly states, “[N]o person or political party in Azad Jammu and Kashmir shall be permitted to propagate against or take part in activities prejudicial or detrimental to the ideology of the State’s accession to Pakistan.
The Gilgit-Baltistan Empowerment and Self-Governance Order 2009 imposes similar restrictions on freedom of expression and association of people under its jurisdiction. Article 9(2) of the fundamental rights section states: “No person or political party in the area comprising Gilgit-Baltistan shall propagate against, or take part in activities prejudicial or detrimental to the ideology of Pakistan."
In 2019, the OHCHR highlighted that the Interim Constitution of Azad Jammu and Kashmir places several restrictions on anyone criticising the region’s accession to Pakistan, in contravention of Pakistan’s commitments to uphold the rights to freedoms of expression and opinion, assembly and association.OHCHR, "Update of the Situation of Human Rights in Indian-Administered Kashmir and Pakistan-Administered Kashmir from May 2018 to April 2019", 8 July 2019, at: https://www.ohchr.org/Documents/Countries/IN/KashmirUpdateReport_8July2019.pdf.The amended Interim Constitution of 2018 provides that
no person or political party in Azad Jammu and Kashmir shall be permitted to propagate against, or take part in activities prejudicial or detrimental to, the ideology of the State’s accession to Pakistan.”
Authorities in Gilgit-Baltistan are said to use the 1997 Anti-Terrorism Act (ATA) to target political activists, human rights defenders, and student protesters.
There is no regional human rights mechanism with jurisdiction over Pakistan.
Views of Civil Society
According to Freedom House's 2019 report on Pakistan:
The constitution guarantees the right to assemble peacefully, though the government can harness legal provisions to arbitrarily ban gatherings or any activity designated a threat to public order. In 2018, the authorities arbitrarily and systematically prevented PTM [Pashtun Tahafuz Movement] supporters from holding rallies to protest the killing by police of a Karachi-based aspiring fashion model, Naqibullah Mehsud, in January. The authorities tried to block rallies in Lahore in April and in Karachi in May through mass arrests, by preventing PTM leaders from flying, and by restricting media coverage of the movement. In May, the Human Rights Commission of Pakistan expressed concern over reports that more than 150 PTM activists had been detained or disappeared in the run-up to the Karachi rally. Later, 19 leaders of the movement were named in a police complaint regarding antistate activities, in connection with their participation in a demonstration in Swabi in August, and at least one of them was put on the ECL [Exit Control List]. In contrast, when Islamist groups held violent demonstrations in Islamabad to protest the acquittal of Aasia Bibi, the authorities eventually dropped proceedings against those accused of participating in the violence, prompting widespread criticism.