Sunday, 21 September 2014

Dangerous contradictions, by Babar Sattar

YOU can call for reform of a dysfunctional constitutional order. You can declare that the existing order doesn’t work and needs to be replaced by a new one. But what are you thinking if you seek to delegitimise an existing order, cast aspersions on its institutions, inspire hate against its procedures and outcomes, and then appeal to the same institutions to produce outcomes of your liking? PAT wants a new constitutional order (even if it is coy about it). What about the PTI?
The latter’s conduct raises serious concerns about its commitment to our constitutional order. Its demands and tactics seem to be challenging foundational concepts of justice, otherwise settled by now: ‘innocent until proven guilty’; ‘right to trial by a neutral arbiter’; ‘no one to be a judge in own cause’; ‘legitimate means produce legitimate ends’; ‘rights and responsibilities go hand-in-hand’; ‘not to yell “fire” in a crowded theatre’; ‘your freedom ends where my nose begins’.
Article 225 states that no election can be called into question except by an election petition presented to the election tribunal. Imran Khan insinuates that election tribunals are either incapable or in Sharif’s control (except when they rule in PTI’s favour). Thus an ordinance must be brought in (without parliamentary debate) that somehow dances around Article 225 and enables a judicial commission to not only call into question election results in selected constituencies but also the overall electoral outcome across Pakistan.
This judicial commission should conduct a summary investigation, consider circumstantial evidence, not afford Article 10-A rights (fair trial and due process) to MNAs, and conclusively declare whether or not the entire electoral exercise in 2013 was a sham. But in doing so the commission is not to consider whether Imran Khan’s basic allegation (that Iftikhar Chaudhry, election commissioners, Returning Officers, Najam Sethi and Geo were all part of a grand conspiracy to deliver a fake mandate to Nawaz Sharif) is true and backed by evidence
So the PTI is demanding that the right of individual MNAs to represent their constituencies and the collective right of the PML-N to run the government be taken away without due process or a fair trial. The PTI is essentially saying that we, in view of the conclusive evidence we possess (not yet shared with a competent court) have concluded that we won the 2013 elections, which judgement must be accepted by all and sundry and thus the PML-N must now prove that it did not steal the PTI’s mandate to remain in power.
And what are the PTI’s means? The prime minister won’t resign just because the PTI is asking pertly. The khakis have clarified that they are not intervening. So is PTI relying on the Supreme Court for a face-saver? If the remedy lay with the apex court why did Imran Khan not file a petition instead of demanding intervention from atop his container? Should the court comply with his demand because there is a mob occupying Constitution Avenue, which might go rogue?
While one hears about the PTI’s rights, one seldom hears about its responsibilities. The PTI seems to have erroneously imagined that the right to protest includes the right to overthrow a government. The right to protest (which flows out of four fundamental liberties: to speak, associate, move and assemble) comes along with no guarantee or promise of immediate corrective action.
By protesting against an objectionable action or policy you record your disapproval while appealing to the conscience of the society and/or decision-makers. The demand is essentially moral in nature. If you seek to enforce such moral position through the use of force, you’re demanding right to violence under the garb of protest. Thus in Pakistan and in democracies across the world, the right to protest is subservient to public order. You have a right to assemble to protest. But if the assembly becomes illegal, the right extinguishes.
The priority accorded to public order means that the right to protest doesn’t come with the privilege to protest wherever and however you wish. Time, place and manner regulation of the right is standard practice across the world. Each Moharram, authorities work with organisers of marches to map out routes etc to ensure peace and public order, because under Article 16 of our Constitution the “right to assemble peacefully” is “subject to reasonable restrictions imposed by law in the interest of public order”.
Have the PTI/PAT breached any laws while exercising their right to protest? Under Section 141 of the Pakistan Penal Code, for example, any assembly of five persons or more becomes unlawful if the common purpose is to overawe by use or show of force the government, legislature or public servants, to resist the execution of any law or lawful process, to commit mischief or trespass, or to obtain possession of property or deprive anyone of the enjoyment of right of way etc.
The PAT/PTI protesters violated the initial permission to protest by changing the venue and moving into the red zone. We saw PTV attacked, parliament’s fence broken, its premises trespassed, and police officers beaten up. We saw senior PTI leaders obstructing prison vans, IG police threatened by Imran Khan and the release of arrested PTI workers secured by force by the mighty Khan personally. We see vigilantes controlling the right of way on Constitution Avenue and even Supreme Court judges have to take a detour to reach the court.
Is this a lawful assembly?
Abuse of authority by the state has a long, abhorrent history. But the remedy lies in availing legal solutions and moving courts (which exist to uphold citizen rights and check the arbitrary exercise of state power) as opposed to relying on vigilantism. Can responsible leaders incite protesters to attack officials and then disown their responsibility for transforming an assembly into a mob?
State institutions and their legitimacy are hard to build but easy to destroy. The police uniforms being demonised represent state authority and not the Sharif government. Pakistan can’t expect progressive evolutionary change if its proclaimed agents of change aim to settle partisan scores by hacking at state institutions and state authority. Once delegitimised, the erosion of state authority will affect all uniforms and not just those worn by civilians.
The writer is a lawyer.
Twitter: @babar_sattar
Published in Dawn, September 22nd, 2014

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