The arrest and preventive detention of PTI and PAT workers across Pakistan, and specifically in the Punjab, under Section 3 of the Maintenance of Public Order Ordinance (MPO), is an abominable exercise of the State authority. The arrest of these individuals shows a general irreverence and disregard of the fundamental rights of citizens by the present Government. These arrests, many of which are persisting despite Court orders to the contrary, demonstrate that the Executive arm of the State is eager to extinguish the mandate of constitutional liberties of the citizens, so long as the same can lead to a weakening of PTI and PAT’s dharna in Islamabad. These preventive detentions of political workers are a manifestation of the fact that protecting the longevity of PML (N) Government is more sacred to our present day State institutions, than the sanctity of any individual’s fundamental rights.

In all modern democratic structures, it is the responsibility of the State to protect the ‘life, liberty and property’ of its citizens, while maintaining law and order in society. The objective of maintaining law and order, however, can frequently split atoms with the exercise of ‘liberties’ by the people. For this reason, almost all constitutions that enumerate fundamental rights, entrust State institutions with the solemn duty of safeguarding such rights and liberties. To this end, the State institutions are delegated (by the Constitution) certain powers (including use of force and the power to arrest), all of which must be used for the sole objective of protecting the ‘life, liberty and property’ of the citizens.

Furthermore, in order to ensure that the use of State authority is being exercised for the legitimately stated constitutional objectives, an independent judiciary serves as an over-arching guarantor of the constitutional rights, functioning as a check on the excesses of State authority.

Within this democratic paradigm, all countries, including Pakistan, are frequently faced with balancing the conflict between individual rights, on the one hand, and the maintenance of public order, on the other. And the true mettle of a nation’s constitutional resilience is revealed in the manner through which its institutions, including the judiciary, adhere to the spirit of protecting fundamental rights, at the cost of the brittle nature of public order.

Pakistan’s checkered history is no stranger to this unavoidable conflict. Grappling with four different periods of military intervention, and transient phases of authoritarian democracy (which, some would argue, have been worst than military dictatorship), Pakistan has experienced its fair share of public protests and a weakening law and order situation. To this end, under the very first martial law regime of General Ayub Khan, the then Governor of West Pakistan, on 2nd December, 1960, promulgated the MPO, in order to grant the civil bureaucracy with powers to detain individuals for the sake of maintaining public order. Specifically, Section 3 of the MPO, as amended, states that “Government, if satisfied that with a view to preventing any person from acting in any manner prejudicial to public safety or the maintenance of public order, it is necessary so to do, may, by an order in writing, direct the arrest and detention … of such person … for a period not exceeding six months at a time.” And under Section 26 of the MPO, the respective District Coordination Officers have been given the power to issue arrest warrants (under Section 3).

In exercise of this power, over the past six decades, numerous military and civilian governments have arrested and intimidated miscreants and innocent civilians alike. These powers have been exercised to victimize political rivals, as well as to arrest protesting lawyers and young doctors.

The honorable Superior Courts, in exercise of their Writ jurisdiction (under Article 199 and Article 184 of the Constitution) have periodically granted relief to individuals victimized through the MPO. This did not sit well with the governments of the time. As a result, in order to curb the jurisdiction of the honorable High Courts to interfere with, and to deny relief to the affectees of MPO, the government of Zulfiqar Ali Bhutto, through the Fourth and Fifth Constitutional Amendment, curtailed the power of the superior Courts, under Article 199, to release a person arrested under the MPO. Subsequently, however, through Presidential Order No. 14 of 1985, the Constitutional bar on the High Court’s power to interfere with orders issued under the MPO, was diluted, and since then, the honorable Courts have issued the ‘writ of habeas’, in order to produce and release individuals who have been illegally, and without just cause, victimized by the powers of Section 3 of the MPO.

Sadly, the instinct and desire to crush political opposition, through preventive detention under the MPO, has only gained force and vigor under the recent democratic dispensations, the most flagrant example of which is the ongoing arrests of PTI and PAT workers.

Laws, and the exercise of State authority, specifically, in a democratic regime, must all be geared towards expanding the empire of fundamental rights. This is the defining differential, between a public democracy, as opposed to dictatorial regime. Without this express and deliberate objective, of protecting the fundamental rights, even at the cost of public order, there can be no hope for dissent, which is the very essence of a democracy.

Our rulers, after seven decades of persecution of the citizenry, must finally begin to learn that the voice of the people, their yearning and their pain, cannot be silenced through arrests. That for democracy to flourish in this land, the voice of dissent and the right to protest, must not only be tolerated, but also encouraged. It must be nurtured, even treasured. That legal instruments, like the MPO, may succeed in lessening the attendance at some jalsa or dharna, but would never succeed in attaining long term prosperity. That the corridors of power cannot forever find the ‘legal instruments’ to feign harmony. And even if they do, the protection of our fundamental rights overrides the command of any subservient law made thereunder.

It is time to release the PTI and PAT workers, not for any partisan reason, but simply as a gesture of upholding our most fundamental freedoms. It is time, instead, to find political solutions to our political problems.

The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School.