Apr 29, 2020

Is Curfew an Extended Form of Section 144?

The Coronavirus (COVID-19), declared as a pandemic by the World Health Organization (WHO), is a contagious disease which first emerged in Wuhan, China in December 2019 and spread across the globe, sending billions of residents into protective lockdowns in order to reduce the burden on healthcare systems. Over 5,000 COVID-19 cases have been reported in Pakistan as well and we know that before the situation improves or recovers, things will get worse. The government has closed borders, even for its own citizens, placed strict controls on domestic travel and recommended people to stay at home. In order to protect the health of its citizens more effectively, the government has also enforced section 144 of the Code of Criminal Procedure (CrPC) 1898 which prohibits large gatherings and social occurrences.

Prime Minister Imran Khan in his address to the nation emphasized that a strict curfew could not be imposed in such a state of chaos due to existing severe economic and social issues. But he declared a countrywide imposition of section 144 (lockdown). It is quite tough to grasp the distinction between a curfew and a lockdown because both situations reflect discontinuance of daily routine.

Section 144 empowers the administration (technically a District Magistrate or any other executive magistrate) to issue an order in urgent cases of injury to human health. A lockdown can be enforced by a Collector or Chief Medical Officer in an area, particularly under the Epidemic Diseases Act 1897. This also implies that the fundamental right of peaceful assembly as provided in the Constitution can be curtailed by the administration. However, under a lockdown, the police have no power to arrest someone for breaching the lockdown, without the court’s permission. They can issue a warning and advise people to go home, but if a person behaves in an adversarial manner, the police have the right to arrest under section 188 of the Pakistan Penal Code (PPC). To invoke section 144, a complaint must be filed in written form against that person, stating that he or she has violated section 195 of the Code of Criminal Procedure (CrPC) (prosecution for contempt of lawful authority of public servants, for offences against public justice).

During a lockdown, there is a ban on sit-ins and processions, gatherings in marketplaces, wedding parties, sports gatherings and educational gatherings, etc. However, such restrictions do not apply to pharmacies, dispensaries, clinics, grocery stores, bakeries, milk shops, petrol pumps, meat shops, food outlets and food deliveries and takeaways. All goods are permitted to be transported without distinguishing between essential and non-essential items, so people can still step out of their homes to meet everyday needs. Other essential services including defense, police and local law enforcement, medical emergency services, district administration, hospitals, sanitation, banking services and internet connectivity are also available to the general public.

The word ‘curfew’ is derived from the French phrase ‘couvre-feu’ which means “cover the fire”. It was used in England during the 15th century but is not a legal term. A curfew is enforced by the administration using inherent executive powers vested in the state and its government. The government has the power to issue executive orders on any subject qualified to be legislated upon. A curfew is generally intended to keep citizens off the streets during anticipated incidence. Only emergency services are permitted during a curfew and passes are needed by individuals to move around. These curfew passes are provided by the Deputy Commissioner’s office or the local police station. In the modern age, people can also obtain online passes permitting movement during the curfew. Only a few exemptions are allowed during a curfew. For instance, people can avail essential commodities only during time periods specified by the authorities.

Curfew violators are typically punished via fines or imprisonment. Police have the power under section 188 of Pakistan Penal Code (PPC) to arrest any civilian for movement carried out without the permission of the authorities. Violators can also face further criminal charges according to local laws.

Stringent measures are enforced by the government during a curfew while a more calming environment for citizens is offered during a lockdown. A curfew is not an extended form of lockdown (section 144) but is the expected next step by the government to control the situation if a lockdown proves to be less effective.

-- Hamza Liaqat Dhothar