Criminalising protest

February 9, 2020

Sedition is a vaguely-framed offense that gives the state far-reaching authority to crush dissent

Ammar Rashid, a political worker charged with sedition meets his family during a court hearing.

In the 1960s, farmworkers in the state of California organised sustained peaceful protests against abysmal working conditions and below-subsistence wages. The authorities cracked down on the protesters, arresting and imprisoning many of them on trumped-up charges, siding with farm-owners and agribusinesses to break the movement. A public hearing was led by then US Senator Robert Kennedy to investigate the crackdown. The exchange between the Senator and the police chief exposed the absurd reasoning by which protest is criminalised.

Sheriff: If I have reason to believe that there’s going to be a riot started, and somebody tells me there’s going to be trouble if you don’t stop them, then it’s my duty to stop them.

Kennedy: Then you go and arrest them.

Sheriff: Absolutely.

Kennedy: Charge them? What do you charge them with?

Sheriff: Violating the unlawful assemblage.

Kennedy: I think that’s most interesting. Who told you they were going to riot?

Sheriff: The men right out there in the field, that they were talking to said that if you don’t get them out of there, we’re going to cut their hearts out.

Kennedy: I mean, this is a most interesting concept, I think, that you suddenly hear or talk about the fact that somebody makes a report that somebody’s going to get out of order, perhaps violate the law, and you arrest them … how can you arrest somebody if they haven’t violated the law?

Sheriff: They’re ready to violate the law.

The room erupts in laughter. Robert Kennedy then advises the sheriff and the district attorney to read the Constitution of the United States.

Labelling peaceful protest as “unlawful assembly” and dissent as “sedition” or “treason” is a favourite tactic of state authorities everywhere. Protestors are labelled disruptors of the peace by the same forces that have perpetrated the injustices that have necessitated the protest. The characterisation by the state cannot be taken at face value.

Any democratic order must recognize that the full enjoyment of all human rights is dependent on the exercise of free expression.

The last few days have seen the arrest and detention of a number of activists across Pakistan who raised their voices against human rights violations perpetrated against fellow citizens. Among the offences with which they have been charged are rioting, unlawful assembly and sedition. Sedition, a vaguely-framed offense, gives the state far-reaching authority to crush dissent. It prohibits spoken or written words that “bring or attempt to bring into hatred or contempt … or excite disaffection towards the government.” Whether or not the words are criminal is determined by the emotions that they are likely to invoke; and of course, it lies with the discretion of the law enforcement to determine whether the emotions of hatred, contempt or disaffection have been aroused. The sheer vagueness of the law makes it amenable to abuse by state authorities. It is particularly handy to use against protestors who have not in fact disrupted the peace or caused any damage to persons and property, but can be arrested on the basis of speculation about the emotional impact of their speech under the law against sedition.

In granting bail to some of the recently arrested activists, the Islamabad High Court has strongly condemned the charge of sedition saying it has no place in a democratic society. The court also expressed grave misgivings about the use of terrorism charges against protestors. A lower court that denied bail to the protestors had declared with no reasoning whatsoever that they should be tried before an anti-terrorism court. Unfortunately, this pronouncement by the court is not entirely shocking. It falls within a pattern whereby the state justifies its use of excessive and arbitrary authority by invoking the threat of terrorism. We see this with the use of draconian measures such as military courts for trials of civilians and the enactment of unconstitutional laws such as the KP Action in Aid of Civil Powers Ordinance 2019. We also see this in the ever-widening scope of offences that are deemed to be acts of “terrorism,” a pattern that the Supreme Court recently noted with concern, calling for a narrowly tailored interpretation of terrorist offences.

The abuse of brute power by law-enforcement authorities through false charges or the use of repressive laws flies in the face of human rights guarantees in the Constitution. Freedoms of assembly, association and speech are recognized as fundamental constitutional rights. These freedoms are essential to enable citizens to exercise their right to form and express informed opinions. The Constitution and the international human rights law recognise that the right to free speech is subject to reasonable restrictions. Such restrictions, however, must be narrowly tailored to meet legitimate aims. Vague sedition laws, misuse of anti-terrorism laws and arbitrary declarations of peaceful assemblies as “unlawful” do not qualify as reasonable restrictions. The use of these measures indicates an intent to suppress the voices of citizens, stifle dissent and undermine constitutional rights.

Any democratic order must recognize that the full enjoyment of all human rights is dependent on the exercise of free expression. The rights to health, education and freedom from discrimination cannot be protected in a society where the citizens are denied the ability to raise their voice against injustice or abuse of power. In the absence of free expression, the state will have the monopoly of narrative, which will render all of us vulnerable to its arbitrary power.

The writer is a lawyer

Sedition laws and criminalising protests in Pakistan