An open letter to Supreme Court of Pakistan. By Hem Raj Jain

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To,

Hon’ble Chief Justice

Supreme Court of Pakistan

Islamabad (Pakistan) 

Subject:- To turn down the June 1, 2022 petition of the PTI about ‘June March to Islamabad’ by directing the PTI to approach concerned administrative / police authorities for permission of this march and if denied permission then to first approach concerned Subordinate & High Courts 

Hon’ble Sir

I am a citizen of India and permanent resident of the USA. As a citizen of a SAARC member country India, I closely follow the political activities of Pakistan which is not only a SAARC member country but is an important member of SAARC the political dynamics of which will crucially decide the fate of the SAARC as a cohesive political entity. 

The Higher Judiciary of Pakistan quotes the judgments of the Supreme Court of India (SCI) too, in its various judgments because the judicial system of both countries (India and Pakistan) are inherited from Britishers when they were ruling united India before partition in 1947. Hence I am writing this letter to Your Honor with a belief that it will assist in strengthening the judicial system of a SAARC country, Pakistan.

This refers to a petition filed by ‘Pakistan Tehreek-e-Insaf (PTI) on June 1, 2022 in Hon’ble Court as reported in prominent mainstream media of Pakistan https://www.dawn.com/news/1692592/pti-moves-sc-to-bar-govt-from-stopping-second-long-march . This petition is ought to be turned down by Your Honor with direction as mentioned below :-

(1)- First and foremost the Hon’ble court ought to ask the PTI  - “[why the PTI didn’t apply for permission for ‘May 25 march (from all over Pakistan) to and Jalsa / Dharna at Islamabad’ to administrative and police authorities of Punjab, Sindh, Balochistan, KPK and Islamabad. And if such permission were applied for by the PTI but denied by these authorities then why the PTI didn’t move the courts of competent jurisdiction for relief. Moreover why the PTI without getting such permission from authorities started the ‘May 25 march’ for Jalsa/ Dharna at Islamabad. Obviously now the PTI wants to take advantage of its wrong (of not taking permission for ‘May 25 March’) through this petition of June1, 2022 in Hon’ble Court. 

(2)- The following 9 questions have been  raised in this petition for seeking judicial opinion / declaration of the Hon’ble Court (i)- Whether freedom of movement and the right to peaceful protest and procession are fundamental rights of all citizens of Pakistan under the Constitution? (ii)- Whether constitutional rights, enshrined in Articles 4, 5, 8, 9, 10,14, 15, 16, 17, 19, and 25 of the Constitution, can be unreasonably curtailed by executive authorities through the use of disproportionate and unlawful force on peaceful citizenry? (iii)- Whether the fundamental rights, enshrined in Articles 8, 9, 10, 14, 15, 16, 17, 19 and 25 of the Constitution must be respected and protected from unconstitutional and illegal curtailment by the governmental authorities? (iv)- Whether the state and governmental agencies of Pakistan can unlawfully deprive citizens of their liberty, guaranteed under Article 9 and 10 of the Constitution, by arresting individuals who are participating in or intend to participate in a peaceful protest for the attainment of their democratic rights? (iv)- Whether the governmental agencies can, without any cause or reason, browbeat, intimidate, or physically harm individuals and groups who gather for a peaceful procession, thus violating their inviolable dignity and privacy of home, as guaranteed under Article 14 of the Constitution? (v)- Whether the citizens of Pakistan have the right to peacefully enter, move around and remain in various territories of Pakistan, in accordance with Article 15 of the Constitution? (vi)- Whether the citizens have the right to peacefully assemble, protest and hold demonstrations, for the achievement of their democratic demands, in accordance with the letter and spirit of Article 16 of the Constitution? (vii)- Whether the PTI, a duly registered political party, has the fundamental right to organize, associate and conduct a nationwide political rally, in accordance with Article 17 of the Constitution, without unlawful interference by the federal and provincial government authorities? (ix)- Whether the arrest and detention of members of the PTI prior to or during a peacefully organized protest amounts to illegal detention and arrest, as well as a violation of its rights under Article 17 of the Constitution?

(3)- There is no valid reason for the PTI to seek judicial opinion / declaration of the Hon’ble Court on all of these 9 issues because they are already mentioned (as enforceable rights including fundamental) clearly in the Constitution and Statute of Pakistan. The PTI has indulged in this subterfuge for the simple reason that it didn’t approach the administrative / police authorities for permission for ‘May 25 March to Islamabad’  and didn’t approach the court of competent jurisdiction for relief, if PTI was denied permission for ‘May 25 March to Islamabad’.

(4)- If police committed excesses and unauthorized violence (unsanctioned physical coercion) on and before ‘May 25 march’ on the office bearers, members and supporters of the PTI  then the PTI can file FIR in concerned police stations and if police refuses to register these FIRs for cognizable offenses then the PTI can approach the court of judicial magistrate for getting these FIR registered under section 156 (3) Cr.P.C. 

(5)- It is a settled law in all the democracies of the world that people (including through their political parties, NGOs etc) have a right to protest and demonstrate through march, Jalsa, Julus, Dharna etc at the seat of governments and executive magistrates (like Tehsil, District, Division, State capital and National capital). The governments are under legal / constitutional obligation not only to provide permission as per law for such political activities but also to provide proper place (with security, sanitation etc) for such political activities. If governments deny permission for such political activities then people need not go at distance in High Courts or Supreme court for relief but they can get relief easily near their places through lower civil courts (and not even district courts) in ‘mandatory injunctions’ under ‘specific relief act’ and other laws. 

(6)- The PTI should have applied to police / administration authorities for permission for ‘June march to Islamabad’ (by giving details of time, place and routes of these marches, Julus, Jalsa and Dharnas at various places and through all the 4 States of Pakistan and capital territory of Islamabad) along with names  of the office bearers of the PTI who will be responsible for proper conduct of all these marches, Julus, Jalsa and Dharnas. And if this permission was denied then the PTI should have approached the concerned Subordinate Courts and High Courts (of Punjab, Sindh, Balochistan, KPK and Islamabad) for getting their legal & constitutional fundamental rights secured about these  marches, Julus, Jalsa and Dharnas. But instead of doing this the PTI has approached the Hon’ble Court through this June 1, 2022 petition in a legally illegitimate & impermissible way. 

(7)- Your Honor will kindly appreciate that it is illegal to make the judicial system unnecessarily costly, distant and over-jurisdictional. Hence the Supreme Court ought not to entertain this June 1, 2022 petition of the PTI when remedy is available in High Courts and Subordinate Courts. In some especial case it can be done by Hon’ble Supreme Court as was rightly done by the Hon’ble Court on May 25 when on the petition by ‘Islamabad High Court Bar Association’ (IHCBA) the Hon'ble Court order the government to allow ‘May 25 March’ of the PTI and the PTI was order to conduct its jalsa in Islamabad peacefully [though this petition (which was ‘muddai sust gavah chust’)  should have been brought by the PTI to get said relief to it but Hon’ble Court rightly (in the interest of avoiding unnecessary bloodshed and sufferings to the people / PTI and even to law enforcing machinery) intervened on the petition of IHCBA].

Therefore  in the interest of strengthening the judicial system of Pakistan (by empowering and making relevant the High Courts and Subordinate Courts of Pakistan), the Hon’ble Supreme Court of Pakistan ought to turn down the June 1, 2022 petition of the PTI by directing the PTI to approach concerned administrative / police authorities for permission of ‘June March to Islamabad’ and if such permission is denied then to first approach (before coming to Hon’ble Court) the concerned Subordinate Courts and High Courts of the States of Punjab, Sindh, Balochistan, KPK and national capital territory, Islamabad.

Meanwhile, in letter to Federal cabinet approval for prosecuting Imran without ensuring political rights of PTI will accentuate Punjabi-Pashtun divide which may dismember Pakistan by Hem Raj Jain          

The Home Minister of Pakistan Rana Sanaullah in his press conference (https://www.youtube.com/watch?v=YnECUBy5SIU ) said on Tuesday that on his request to Shahbaz cabinet, a cabinet subcommittee has been formed which will investigate and then will recommend to the cabinet for granting permission to file criminal cases against former PM Imran Khan and the members of his party the PTI who were involved in criminal acts during May 25 ‘azadi march’ to Islamabad. No doubt action should be taken against any one who indulges in criminal acts during political activities of march, Jalsa, Dharna etc, but it should be kept in mind that Federal government was also responsible to protect the political rights of the people (PTI) to carry-out march or Jalsa or Dharna etc which were denied by Federal govt of PML-N and also by Punjab govt of PML-N (against which even criminal cases have been filed by the PTI for criminally obstructing the people from carrying out this ‘azadi march’) even to the extent that when on May 25 the Supreme Court of Pakistan (SCP) allowed this march, after that also government (as alleged by the PTI) tried to prevent the march by force, tear gas etc.

This has caused huge resentment among the PTI also due to the reason that during Imran / PTI government the political parties in present Shahbaz government (PPP, JUI-F, PML-N) were allowed march, Jalsa, Dharna at Islamabad and in Punjab but same was not allowed to Imran / PTI allegedly by police excesses in Islamabad and in Punjab (which constitute over half of the population of Pakistan) on the PTI & its supporters who wanted to go to Islamabad in this ‘azadi march’. It has created politically an explosive situation in Pakistan because it is construed by the PTI (especially its KPK element) that Punjabis (PML-N) in government at Center and in Punjab by criminally misusing its security forces sabotaged the May 25 ‘azadi march’ of the PTI headed by a Pashtun / Pathan Imran Khan.

Due to historical reasons other provinces in Pakistan had been complaining that Punjabis (having dominance in Pak - military) behave high-handedly & unjustly with them which was also the main reason that Pakistan was dismembered in 1971 when East Pakistan parted from West Pakistan and Bangladesh came into existence. Now again a similar situation is developing (as explained below) for another dismemberment of Pakistan where Pashtuns of PTI may take the lead for a country where Pashtuns will be in majority which will have Afghanistan, KPK, Balochistan (having 36 % Pashtuns) and AJK & GB (presently with PTI govt). Balochistan is already agitating due to Pak - military excess & missing persons and due to its claim that its ‘Instrument of Accession’ was taken by Pakistan under military pressure against the resolution of its Jirga (parliament) in 1948. As fas as AJK & GB they will prefer to join the new country because they may think there are chances this may one day solve the chronic & gory Kashmir problem which Pakistan has failed to solve [even after August 5, 2019 when India amended Article 370 and eliminated Article 35-A of the Constitution and converted the State of J&K into two union territories with attended arrest of political activists and other serious violations of human rights mainly of Kashmiris]

By denying the political rights of the PTI to go from all over Pakistan to and demonstrate & conduct Jalsa / Dharna at national capital Islamabad, the Home Minister of Pakistan of PML-N (with govt in Punjab too) said (https://www.youtube.com/watch?v=Y0Lgv0ROzIQ ) that he will not allow Imran / PTI to come through Punjab to Islamabad in 'Julus' (procession) in June from 'Khyber Pakhtunkhwa' (KPK). There is a PTI govt in KPK and its Chief Minister said that if the Federal government stops 'June azadi march' then last time during 'May azadi march' they were peaceful but this time he will use the force (police) of KPK if stopped https://www.youtube.com/watch?v=aEADHW7s4n8 . 

Shahbaz should know that it is not merely the CM of KPK who is threatening the State of Pakistan even Imran on Monday (that too in a lawyers convention said publicly that the SCP should protect the political rights of the PTI (about its ‘June azadi march’) otherwise this time he would opt for a different strategy and the PTI will carry out said march fully PREPARED (to take-on the security forces of the PML-N govts at the center and in Punjab if they indulged in excesses on the PTI & its supporters as they allegedly did with ‘May azadi march’) as reported at https://tribune.com.pk/story/2359164/pti-prepared-to-deal-with-obstacles-says-imran ) 

In such a situation where Federal government and State government are openly giving public threats of using their security forces against each other, it should not be a surprise that so far President of Pakistan, Prime Minister of Pakistan, the SCP and Governor of KPK have not taken cognizance or any action worth the name & legally expected of this bizarre civil war in Pakistan which is based not only on the warring political parties in power threatening to use security forces of the Centre & State against each other but is also creating ethnic divide between Punjabis v/s Pathans (the Pashtuns). This for the simple reason that the writ of Federal government doesn't run in KPK where Imran is presently residing and where in the present controversy (of Punjabis denying Azadi march to PTI led by a Pashtun) it is impossible for the security forces of the Federal government to arrest either CM KPK or Imran from KPK. 

The USA wanted Imran govt to be removed (as Imran claims out of so called ‘memo gate’ where Pak Ambassador in the USA sent a memo to ‘External Affairs Ministry’ in Pakistan that US - official Donald Lu threatened that ‘if If Imran is not removed from office through no-confidence resolution then there will be consequence because Imran was seen to be close to Russia and that too during Ukraine war’). This memo is the main cause of the ‘azadi march’ . But if Shahbaz thinks that by default the USA will support Shahbaz govt and the USA will help Pakistan in preventing another dismemberment then it is living in its make believe world. In 1971 the USA didn’t do anything worthwhile & effective to avoid the dismemberment of Pakistan (when Bangladesh came into existence) also due to the reason that Russia entered into a military treaty with India which discouraged the USA to intervene militarily in Bangladesh war (though the USA made a posture of sending its 7th fleet in Bay of Bengal). This time again Russia may enter into a military treaty with the said emerging country (dominated by Pashtuns) in order to ensure another dismemberment of Pakistan run by Shahbaz govt which came in power by dislodging (with US-support) Imran govt which was seen (by the USA) close to Russia.      

The Shahbaz govt is not realizing that this Punjabi v/s Pashtun divide has potential of spillover effect in bordering ‘militant Jihadi Pashtun’ dominated Afghanistan (having its militant Jihadi ally in Pakistan, the TTP) which doesn’t recognize Durand Line and has US - military equipments, arms and ammunition worth billions of dollars left by the USA, when it left Afghanistan in August 2021. Moreover, Imran is not called (by the West) as ‘Taliban Khan’ for nothing. If Shahbaz govt doesn’t ensue political rights of the PTI and doesn’t allow ‘June azadi march’ by Imran / PTI as per law then it will be paving the way for another dismemberment of Pakistan as mentioned above because not only Imran will carry out ‘June azadi march’ in order to save his political face but Pashtuns (Pathans) of KPK will also constrain Imran for ‘June azadi march’ because it will give them an opportunity to have a militant showdown with Punjabis.

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