Blockading NATO supplies:- 'Peshawar High Court declaration'

The Peshawar High Court’s (PHC’s) declaration that blockading NATO supplies bound for Afghanistan from Pakistan is illegal presents an interesting debate about the constitutionality of protest.

A petition was moved by a businessman arguing that Pakistan Tehreek-e-Insaaf (PTI) workers were blocking the highways to Afghanistan and inspecting the documents and cargo of trucks en route. The petitioner argued that blocking the roads and holding up trade violated his rights under Article 18 of the Constitution, guaranteeing freedom of trade and profession, since he is a legitimate, tax-paying exporter of goods. It may be noted that the West Pakistan Highways Ordinance 1959 makes blocking or encroaching on national highways without consent from the body governing their use a punishable offence and that since 1991, authority over national highways exists solely with the National Highway Authority, subsuming the responsibilities and powers that previously lay with provincial governments. In effect, the PTI-led coalition in Khyber Pakhtunkhwa (KP) never had the authority to blockade a national highway; only the federal government can do so. The declaration of the PHC seems to have taken this into account. The court recognised that under existing law, blockading roads was illegal and further that vigilantism can’t be tolerated, no matter how well intentioned.

The debate likely to occur, however, is how far any group can go in pursuit of policy change if their actions violate the constitutional rights of others. The nuances of our rights need to be seen in the light of specific laws governing the polity. In this case, the PTI and its coalition partner in KP, the Jamaat-e-Islami, while exercising their right to protest, impinged on the rights of others because blocking national highways is illegal, not because protest is. Similarly, the constitution guarantees the right to peaceful assembly, but this should be taken with a pinch of salt given the existence of the notorious Sections 141 to 145 of the Pakistan Penal Code (PPC), which declare the legal limits of peaceful protest. Those sections provide strict limitations on the right to assemble peacefully, which are hangovers of colonial police powers. The argument can be made that by acting outside the law, the PTI assemblies were not peaceful — particularly with regard to the Highways Ordinance — causing financial harm to other persons, quite aside from impeding the right to trade of another citizen. The court’s recognition of this is welcome. However, the limitations on peaceful assembly described by the PPC also reflect a lingering undemocratic constitutional order, designed specifically to suppress the Indian independence movement under British rule. The PTI now plans to challenge the declaration. However, within the existing laws they are likely to lose that fight.