Not the final word

July 6, 2014

The only thing that changes us is our politics and the way we use it to empower or disempower particular groups

Not the final word

There has been no shortage of the debate surrounding the Protection of Pakistan Bill -- soon to become an Act if all goes well for the government. This debate is heartening because it shows the awareness of politicians, civil society and media to a pressing issue of our time: the balance between preservation of our freedoms and restrictions on liberties that are used to attack us. There is no easy or right answer. Some think that any curtailment of liberty will be a tragedy -- and that is indeed true -- but there is another side of the coin too. No government, especially an elected one, wants to be held responsible for inaction in the face of chaos.

States throughout history have tried to address this issue. At times states have abandoned the pretense of trying to strike a balance and have just adopted a ‘zero tolerance’ approach with a vile disregard for due process. Lawyers, judges, academics, interested citizens, etc. for decades (in every country) have debated the logical limits of anti-terror laws. But in all of this we are in danger of losing sight of one very important factor: it is not the laws that make societies more brutal, something else changes within. And it is that change which is more important than any piece of legislation that exists in paper or is implemented in practice.

Consider an example: the United States Constitution has been a model for many ‘written’ constitutions of the world -- constitutions that espouse certain fundamental rights, focus on separation of powers and envisage judicial review. There is no shortage of cases from the United States that will lift your spirits if you want to read about freedom and rights. Courts under the US Constitution have stood up for unpopular rights and unpopular minorities -- be it relating to their speech, religion or protection against government actions. But the same Constitution remained in force while the Supreme Court of the US refused to extend due process and equal protection arguments to internment of Japanese-American citizens during World War II (Korematsu case). The same words watched over freedom when Bush and his legal team engineered Guantanamo Bay and illegal rendition of US and foreign citizens. The same US Constitution remains in force while Barack Obama discusses the possibility of using drone strikes to target American citizens -- this has happened on his watch already. This is not to pronounce judgement on politicians like Obama or Bush.

My point is simpler: countries, their courts and citizens are perfectly capable of using or abusing constitutional powers to enhance freedoms as well as impose draconian restrictions. What really matters is not the law of the land -- but the mood in the country. What matters is what shapes constitutions in the first place: the politics of the people and the politics of their disempowerment as the case may be. And our best bet of ensuring that civil liberties are preserved is not by focusing on the letter of the law (since governments usually have the numbers to pass such laws) but on the attitudes and socio-political environment that facilitates and implements such measures.

To many, France has been the beacon of liberty, equality and fraternity -- but not if you are a woman wearing a head-scarf or a burqa. All of those protections fall to the wayside then. The reason is that the public mood often ignores the lofty ideals of freedoms and pronounces judgement that some freedoms matter more. And that security of the many matters more than the emotional or physical restraints on the few. Can such a sweeping change only come about if something is written down in the law? Only the most naïve would think so. These changes seep into and are cultivated into the public mood over time. They manifest themselves late but they are there alright.

The reversal of the presumption of innocence can matter little if state actions backed by a particular rhetoric shape the politics and the public mood. Even the protection of habeas corpus is mute if attitudes change. When the general public and judges assume that a particular problem (corruption, terrorism, hate speech et al.) is so great that constitutional protections are unnecessary nuisances rather than guiding principles then all bets are off.

Nothing changed in our constitution when draconian state measures have been validated by the courts in the past; whether you talk about the NAB Ordinance, the Hudood laws or anti-terror legislation. The same Constitution existed. What changed was the politics. And the blame lies not with those who pass such a law (because they are being democrats) but a collective failure on the part of a polity. The same Constitution ends up guaranteeing due process to a notorious leader of militant sectarian organisation (as is his due) but stays silent when it comes to the Baloch. The words in that sacred document do not change -- the people enforcing and interpreting that document bring their own and our collective politics to bear on the results.

This is not meant to suggest that we should not strive for amendments to any draconian laws or stop protesting -- since that is part of politics. But we must not believe that particular laws will change us as a society. The only thing that changes us is our politics and the way we use it to empower or disempower particular groups. A Baloch nationalist was as susceptible to abuse of law by the state yesterday as today -- and will remain so for the foreseeable future. But a mainstream politician with the right ethnic background will have his day in the court of law and media -- and will live to talk about it.

Whatever the shape of the Protection of Pakistan Act, 2014 might be, it is not the final word on our polity. That is a script that we have been writing all along -- and we have shaped hands that prevent others from having their say in writing this script.

Governments love passing new laws. It is the surest way of convincing people that something is being done. I can only hope that we, the people, realise that our politics and our political mood shapes and infuses the strength that constitutional protections carry. If we can stick to public reason and engage in a discourse that cautions against violation of civil liberties, with or without laws allowing such actions, we would do everyone (including ourselves) a favour.

And what is more, we will make Pakistan safer -- for everyone.

Not the final word