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Legal Eye

August 17, 2019

Tyranny of the majority


August 17, 2019

Kashmir today manifests the tyranny of Hindu majority rule in India. When democratic structures were being designed in the West, some had warned that majorities wield biases and can act upon them to place their interests over those of the minorities. But constitutionalism was meant to act as a check against the majority’s tyranny – that is: fundamental human rights are inalienable and not at the mercy of the majority vote, power is to be distributed widely with checks against its abuse, and everyone is to abide by constitutional promises.

For constitutionalism to work, there is need for majority consensus backing fundamental fairness. The idea that all people have the same basic rights and must enjoy the same liberties is rooted in an innate sense of human fairness. Once we conclude that the right to liberty, dignity and equality of some is more valuable than that of others, constitutionalism falls apart. The rise of invidious majoritarianism around the world is leading to contraction of human rights and civil liberties of lesser beings within nation-states. Kashmir is the latest example.

Many have wondered what led to the transformation of Quaid-e-Azam from being an ambassador of Hindu-Muslim unity in India to a separatist. As a lawyer, it isn’t hard to understand that if the majority consensus imperative to make constitutionalism work and protect the rights of permanent minorities doesn’t exist, no number of protective provisions in the constitution will uphold the rights of minorities. That consensus didn’t exist in India back in the 40s when the Quaid opted for Pakistan and it doesn’t exist today as Kashmir is screaming out.

None of this is rocket science. If you afford rights to some but deny them to others, the latter will protest and resist such denial. John Rawls proposed this thought experiment in The Theory of Justice wherein he imagined decisions being taken from behind a ‘veil of ignorance’ – folks writing a social contract without knowing what place they’ll be ascribed in such society to motivate them to treat everyone fairly irrespective of their class, identity, ability etc. Who in his right mind would choose for himself what is being meted out to the Kashmiris?

Constitutionalism is about right and wrong, about determining the morality of issues and building consensus around it. Majoritarianism, devoid of constitutionalism, is about who wields power and how it can be maximized. Constitutionalism acts as a check on the ambition of those who control the state and wish to pursue power at the expense of citizen rights. Abuse of power, even when dressed up as national interest, is resisted within states by the sensible centre that believes in constitutionalism and fairness. What happened to India’s sensible centre?

Pakistan’s reaction to Modi’s appropriation of Kashmir is a mix of despondency and the kind of anger produced by one’s own helplessness. Excluding the ultra-right, Pakistan understands by and large that we lack the wherewithal to pursue a military solution. Even in the 90s, as we began studying International Relations at Quaid-e-Azam University and figuring out how the world works, the library photocopier had hung a sign over the copying machine that read “Kashmir ki azaai tak udhar band hai” (No credit till Kashmir’s independence).

The most animated part of our International Law course that Professor Ejaz Hussain taught were discussions over whether international morality was being mischaracterized as international law. There was general consensus that in the absence of an effective force capable of enforcing international legal instruments (treaties, UN resolutions etc) which in any event were products of power play and not any principle-driven democratic process, the notion that the world is controlled by law and not real politick is foolhardy.

The debate around whether even municipal law has the moral authority it claims or whether it is more an instrument of power tailored by the power elites within a society to promote their interests at the expense of others was even more depressing. As one learnt about the distinction between good laws that seek to produce justice and bad laws that perpetuate injustice, the limitations of law itself became more evident. So how do you fight injustice and denial of liberty and dignity in a world where law is a tool for the power elites to promote their self-interest?

This basic question has come to haunt Pakistanis in the face of brazen abuse of the rights of Kashmiris, with whom we share a sense of community, when on the one hand we’ve imbibed a state-driven narrative for 70 years that end to India’s occupation of Kashmir is nigh – and on the other seen growing disparity between the power of India and Pakistan as nation-states in the global arena. If war is no option and the international community won’t listen to us because it is motivated by power not morality and India’s sensible centre has merged into the majoritarian right, is the game over?

Back in the 90s while debating solutions to the Kashmir issue at QAU, the argument of hardliners opposing conciliatory settlement options used to be that we must keep our claim over Kashmir alive, to be pursued at a time when Pakistan had greater relative power vis-à-vis India. Today, the basis for taking the matter to the UN Security Council is the same. All we’re seeking for now is some recognition from the UNSC that the Kashmir resolutions from 70 years ago are still valid. This is to preserve our claim so we can fight for it another day when we are more able.

The 90s were a time for track-II channels including student-to-student contacts. To participate in one such dialogue to be held at Nimrana, we were in Delhi in 1996 and being taken to Janpath by a Muslim taxi driver. Being in India for the first time and fed on perceptions about Indian Muslims, we asked him if he supported the Indian or the Pakistani team during cricket games. The driver wasn’t amused. In an irritated tone he said that Indian Muslims were suspect in the eyes of India due to Pakistan.

He went on to say that it would have been one thing had Pakistanis built a strong country that had the ability to counter India and negotiate better rights for Muslims in India as Israel does for Jews around the world. But that in its state of weakness all Pakistan does is make Indian Muslims suspects in the country they live in. Implicit in the conversation was acknowledgement of the secondary status of Indian Muslims together with disappointment over how Pakistan had failed to acquire any influence or leverage capable of helping Indian Muslims.

Our best hope today is that the UNSC might issue a statement reaffirming continuing validity of Kashmir-related UN resolutions. Like in the 90s, we hope our situation will improve in the future and a time might come when we’ll have the wherewithal to negotiate a better deal with India. Meanwhile, we will appeal to the conscience of the feeble segment of world community that says it cares about human rights. And with noise from human rights organizations together with the possibility of a nuclear war in South Asia, world powers might be inspired to apply some restraint on Modi.

In the immediate term, we are mostly relying on India’s internal dynamics to help Kashmiris. We are hoping for four things. One, that the Indian Supreme Court will view the annexation of Kashmir in purely constitutional terms and set aside this fraud on the Indian constitution and the Kashmiri people. Two, Indian civil society will rise up to speak against human rights abuse in Kashmir. Three, minorities across India will rise to demand protection of minority rights. And, four, Kashmiris will fight tooth and nail and make the cost of sustaining Modi’s Kashmir policy prohibitive.

The question this latest Kashmir crisis then poses for Pakistan is how we found ourselves in a situation where a unilateral action by India (of amending its constitution, that Pakistan could never control) threatens to regularize status quo in relation to an issue that largely drives our foreign and security policies. India is pursuing a very hideous and morally indefensible policy, but if Pakistan is left with no real leverage or cards to play in the face of it, shouldn’t this set off an alarm for introspection?

It is time to review our own approach to constitutionalism, federalism, rights and contraction of liberties. Rhetoric is no substitute for policy.

The writer is a lawyer based in Islamabad.

Email: [email protected]