Fettering freedoms

Legal eye
The writer is a lawyer based in Islamabad.
Fettering fundamental rights and shrinking public space for free speech, free flow of information, freedom to think and produce ideas, be guided by one’s conscience and engaging in business and trade will retard the development of Pakistan and its future generations. The only thing that is worse than the state failing to uphold and expand fundamental rights is bad policy intervention by a myopic state nurturing a myopic society incapable of appreciating the rights that sustain alive and dynamic societies.
The Lahore High Court has banned the broadcast of Altaf Hussain’s speeches. Some lawyers want the Pakistan Bar Council to ban Asma Jahangir and Khalid Ranjha for defending Altaf Hussain’s right to speak publicly, thus fettering his Article 10-A due process rights too. Back in 2007 lawyers had demanded that Naeem Bokhari be barred from the practice of law because he wrote a pithy and piercing critique of former CJ Iftikhar Chaudhry. A mob of lawyers attacked him in Rawalpindi District Court to punish him for his speech and his ideas.
During CJ Chaudhry’s reign we saw the bench chide lawyers for representing ‘tainted’ clients. The age of righteous instant justice on the basis of media trials had set in. The casualty was due process and the principle that everyone is innocent until proven guilty. During the ‘chief-teray-jaan-nisaar’ days, a trade-unionist ethic of law emerged, with lawyers relying on physical numbers and intimidation to achieve desirable consequences. Seldom did one hear about the judicial code of conduct or lawyers’ ethics.
So intoxicating is the nuisance and power that vests in elected representatives of lawyers in this culture of strikes and collective bargaining that even the most skilled lawyers capable of relying exclusively on the merit of their arguments seem beholden to this decadent culture when elected. Instead of using the farewell reference to critique Justice Jawwad Khawaja’s jurisprudence and approach to judgeship and initiate a meaningful conversation between the bar and the bench, lawyers’ leaders broke with tradition and boycotted his farewell.
Imitating this now entrenched practice of boycotts, self-righteous intimidation, and passing judgement without due process, lawyers who petitioned for banning Altaf Hussain’s speeches also want Asma Jahangir banned for her audacity to represent a client many hold responsible for killing of lawyers in May 2007. Asma Jahangir has been the most potent and unwavering voice of courage within the legal community who has never had a problem speaking blunt truth to power. A handful of misguided peers can do her no harm.
But it is in their capacity as leaders of the legal fraternity that Asma and other senior members of the bar need to worry about degenerating ethics and decorum within our profession. Is it not time for our leaders to say that in electing to defend an accused, the lawyer will be guided only by the voice of his conscience? That the bar will stand against any lawyer or judge who attempts to fetter the right of an accused to able legal representation and due process of law, no matter how heinous his alleged crimes?
Lawyers seeking to ban fellow lawyers for defending clients deemed unworthy aren’t acting in a vacuum. We are in an age of melting rights and liberties. The state’s narrative is that anyone declared anti-state and thus a villain is bereft of all rights, including the right to due process and fair trial. Parliament endorsed this when it legalised military courts through the 21st Amendment and the Supreme Court endorsed this when it concluded that the military being judge, jury and executioner offends no one’s fundamental rights.
The medium to long-term damage that riding roughshod over fundamental rights will inflict on our polity in a drive to achieve unsustainable quick results is a price we don’t wish to contemplate in our state of impatience. Are we losing our ability to think rationally through issues to make logical cause-and-effect calculations or are we a people who simply don’t appreciate the concept of freedom, free-choice, human autonomy and agency?
The PML-N government wishes to censor any debate about Saudi responsibility for loss of Pakistani lives in Mina. Pemra has dutifully counselled the media to abstain from such discussion, projecting it as ‘reasonable restriction’ under Article 19 to protect ‘friendly relations with a foreign state’. The issue here is even more basic than accountability for loss of valuable Pakistani lives. It is the fundamental right of citizens to debate ideas and perspectives critical of, and unpopular with, the state and ruling government.
The PML-N government also wishes to introduce a cybercrime law that will adopt the text of Article 19 and delegate to lowly state officials the right to censor and expunge any speech or discussion from the internet in the name of ‘glory of Islam’, ‘integrity, security and defence of Pakistan’, ‘friendly relations with foreign states’, and ‘public order, decency and morality’. This makes Pakistan one of the very few countries ambitious enough to want to cleanse the internet to protect the ‘innocence’ of its adult citizens.
The state assumes that it has a right to block exposure, even of adults, to ideas it finds abhorrent. What is more sustainable and progressive: a state investing in critical faculties of citizens to enable them to decipher good ideas from bad and determine what is true and what is not? Or a state obsessed with indoctrinating citizens so they unquestioningly accept whatever propaganda they are fed?
Whether it is the YouTube ban, the Pemra directives or the proposed cyber crime law, the state wishes to clone citizens in its own mould. Let us assume for a minute that such misguided enterprise is even capable of success. Once we have 200 million clones of the official mindset, where will critical and corrective ideas come from? How will we end dependence on others in a world where some are investigating whether Mars has water and life, while we are focused on subduing curiosity and promoting mass manufacture of minds incapable of independent thinking?
After destroying private institutions of education by nationalising them in the 1970s and public schools over the last four decades (starting with change in their medium of instruction in the 80s), the state under PML-N control has conceived a plan to destroy even the inadequate private schools that cater to 50 percent of our school going population. The PM has ordered private schools to absorb increased cost of providing education over the last year and capping increase in fee at five percent per year for all times to come.
The assumption under this diktat is that there has been zero increase in the cost of running schools and providing education from 2014 till date and so no increase is warranted. Did the PM ask his economic wizards to create a basket of cost-factors that affect private education (salaries, rents, utilities, security etc) to determine the average rational increase in the cost of running a school over the last year to conclude that the number was zero?
Unfortunately this is how things will play out. Private schools will remain divided, accept this irrational price fixation, destroy their sustainability and quality of education, stop further investment in education and die out over time. No one will lend an ear to the irrationality and illegality of state fixing prices and forcing private sector to subsidise public education. Or else they will join hands, refuse to accept imprudent state intervention and shut down their schools.
With that will be shut the only remaining source of decent education. It will create a crisis for everyone, including the chattering classes up in arms against schools. Then will emerge voices from amongst parents concerned about their kids’ education arguing that those who can’t afford education in expensive schools should pick schools they can afford. Then the government would want to talk to schools and then the courts might sympathetically hear the Article 18 freedom of business argument.
This age of contracted constitutional liberties has brought along the curse of shallow short-termism. Everyone wants instant consequences and gratification.
Email: sattar@post.harvard.edu