Saturday, 30 August 2014

State action, Tausif Kamal

State action, Tausif Kamal
The government would be legally justified to physically remove the PTI/PAT protesters from their present location who are stifling not only the city, posing a grave national risk, but also adversely impacting the national economy

The drama being played out in Islamabad is a farcical tragedy. It is a farce because a lone minority representation of people is challenging to bring down the country’s entire political system, and a tragedy because, in the process, it is eroding whatever little authority the state or the government is left with, while causing huge losses to our precarious national economy with long term damage to the country’s image, democracy, morale, unity and stability.

The two greedy, power hungry and egoistic demagogues, Imran and Qadri, along with their crazed followers, are like political vultures feasting upon the helpless carcass of a dying state. Pakistan has now been adjudged as the 10th most fragile state in the world (Foreign Policy 2014 survey on status of world states). Along with Pakistan in this bottom category of failed states are states like Somalia, Sudan, Congo and Mali.

We have been witnessing for the last three or four weeks a subversive and debilitating siege of our capital city of Islamabad by this handful of PTI and PAT zealots, and the corresponding near paralysis of the state apparatus to confront and end this brazen, ubiquitous lawlessness. There exists the real and looming threat of the total collapse of state authority if no action by the state or the government is taken.

Supporters of PTI/PAT cite the provisions of freedom of speech and expression in our constitution to justify their lawlessness, fascist like raid, 24/7 ranting and sit-ins in Islamabad. Though this guarantee of freedom of speech is valid, it is by no means absolute and without any restrictions. For instance, the right to speak against the judiciary and the armed forces is expressly curtailed in the constitution. More importantly, the right to incite violence or rebellion against a lawful government or to create and promote public disorder by words or conduct is also illegal, unconstitutional and strictly prohibited. The hateful, provocative, subversive and abase speeches of both Imran and Qadri along with their conduct clearly constitute such unprotected, unlawful speech and conduct.

As far as the citizen’s right to protest and the right to peaceful assembly, embedded in freedom of speech, is concerned, it is also not limitless. It does not give a licence to protest and assemble anywhere, anytime in the country. The US Supreme Court has consistently ruled, in such landmark cases as Boos vs Barry, Grayned vs City of Rockford, New York Times Co. vs Ed Sullivan, Plumhoff vs Rickard and Wood vs Moss, that the right to free speech and assembly is restricted in the face of a “compelling national or governmental interest” or to counter a “grave public risk”. Consequently, the government, in order to safeguard vital national interest, retains full authority to prescribe the place and time of peaceful assembly and protest.
In no democratic country of the world are citizens allowed to protest, sit, sleep, camp, make speeches anywhere, anytime they so desire for as many days as they want. Can you hang your dirty laundry, sleep for weeks in front of the US Congress, White House, or 10 Downing Street? To do so would mean anarchy, maelstrom and lawlessness.

The Pakistan government thus has a legitimate, compelling national interest not only in protecting key government buildings, foreign embassies and national institutions and to keep the arteries of the capital city open and accessible to all but also in preventing the collapse of the national economy. In order to perform this duty, the government would be legally justified to physically remove the PTI/PAT protesters from their present location who are stifling not only the city, posing a grave national risk, but also adversely impacting the national economy.

If the present imbroglio ends with an inconclusive whimper by virtue of the army’s intervention, it would nonetheless lack finality, authority of the government and state action. For one thing, a laconic outcome will not prevent ambitious charlatans in the future from orchestrating similar marches to the capital. On the other hand, such marches and dharnas (sit-ins) may provide  a convenient leitmotif and a shot to some at gaining power via a quick and easy shortcut without the imperative of the long political grind and majority vote.

This failure of assertion of state authority by the PML-N government is analogous to another recent debilitating chapter in Pakistan’s history: the rise, murderous assault and relentless onslaught by the Taliban/jihadists against the people and state of Pakistan. Yes, ultimately a final offensive was undertaken but not before the loss of thousands of citizens’ lives, destruction of property and assault on security bases.

In this connection, we should remember how, before the launching of this operation, a large segment of our population created hyperbolic hype about the fiery retaliation of the Taliban. We all know now that this phantom fear never materialised. Along similar lines, in the present dharna some are advising against using any force in any event whatsoever because of the exaggerated threat of nationwide violence and upheaval by a minority of the people. Our government it seems is acting on a mistaken assumption that force at its disposal can never be constructively used. Well, the whole concept of the nation state is based on its monopoly of coercive force and its willingness to use it for the maintenance of order, protection of the people, defence of the constitution and for the enforcement of its laws.

This is by no means an avocation of the use of force cart blanche but only that the government must be able and ready to employ it when and if necessary to protect legitimate national interests. If the government or the state does not use its inherent power when necessary then the state is bound to wither away. As the maxim goes: you loose it, if you do not use it.

The writer is a US-based attorney, author and independent analyst

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