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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