Daily Times

The article last week elicited some interesting responses from readers regarding civil disobedience with people citing the examples of Gandhi and Martin Luther King Jr as two practitioners of civil disobedience. I do not wish to get into controversy about whether the movements by these two great men were successes or failures and whether in the former’s case, civil disobedience actually remained non-violent or not. The historical record is there, for everyone to access and draw their own conclusions from. My concern is here and now with Pakistan in the 21st century. Therefore the morality of the idea of civil disobedience that I speak about is limited to the Pakistani context alone and that too in 2018, when there is a constitutional government in place. I do not deny that civil disobedience might be an effective weapon against a military dictatorship that has overthrown a civilian government but even there it has to be qualified and firmly channeled around a political motive. Admittedly these conditions do not exist at the moment even if we concede that the July 25 elections were questionable to say the least.

The last formal call for civil disobedience was by our current Prime Minister Mr Imran Khan during his first dharna in` 2014, when expounding on this well worn out device, the PTI chairman asked his followers to stop paying their utility bills against the supposed injustice of the election process. Since then we have seen numerous dharnas, especially by Tehreek-e-Labbaik which took to the streets in 2017 against the Election Act amendments which sought to remove Section 7(B) that would allow all Pakistanis to be registered on the same voting list. Before the said amendments, most Pakistanis ie Hindus, Christians, Sikhs and Muslims were on one list save Ahmadis who were (and still are) on another list. Pakistan being a signatory to ICCPR is bound to undo this unconscionable discrimination against one group of people.

There was nothing about the religious status of this group in the amendments but this was made into an attack on Khatme-Nabuwat by the Tehreek-e-Labbaik. In what was an exercise in crass opportunism, PTI and its leader Imran Khan also joined the circus based on a false premise. The objective, other than bringing the PML-N government down, was to ensure that Ahmadis were effectively disenfranchised because for Ahmadis the idea of being on a supplemental list is not just a denial of their constitutionally promised status as equal citizens but also an attack on their religious freedom for they are to sign a statement saying that they are Non-Muslims; something which they are not ready to do nor are they required to do under the Constitution which only declares them Non-Muslim for the purposes of law and constitution and does not ask them to declare themselves as Non-Muslims as well. Tehreek-e-Labbaik’sprotest campaign along with PTI and other parties ensured that they continued to be kept out of the elections altogether.

298-C of the Pakistan Penal Code 1860 that denies Ahmadis the right to call themselves Muslims, refer to their places of worship as mosques or the right to give Azaan, is not just an unjust law but to any person who has read Article 20 of the Constitution it is also a patently unconstitutional law. The Supreme Court in the Judgment called Zaheeruddin versus State 1993 SCMR 1718 held this law to be constitutional in a two to one ruling, using amongst others a US Supreme Court judgment under First Amendment from 1878 that had upheld a ban on polygamy by Mormons. Strange and ironic that the Supreme Court of Pakistan would use a judgment that by the same token hits the Muslims equally in a case where something as central as religious practice was concerned.

Even with the best of intentions, it is next to impossible to control the mob. This is what makes civil disobedience wholly immoral in priest ridden emotional societies such as Pakistan or India

The Supreme Court of Pakistan also reduced the idea of religious practice to one of copyright law in a remarkable feat of mental gymnastics. The Ahmadis while entirely disappointed by this judgment have remained steadfast to the notion of obedience to the law and constitution and have not given Azaan over the last 30 years. This does not mean of course that they agree with the judgment but the fact that they are the most obedient and constitutionally loyal citizens this country has — a fact that is never recognised by an unthinking majority. The Ahmadis did not resort to civil disobedience or non-cooperation because they are loyal to the doctrine that they would not rebel against the state even non-violently. People who think they should have resorted to civil disobedience sadly are totally out of touch with the ground reality of civil disobedience in the subcontinent. Civil disobedience is almost always the weapon, the gun, that the majority uses in South Asia to blackmail the government and to silence minorities. It is always the numbers that ensure success. So to expect Ahmadis or Christians to resort to civil disobedience is akin to expecting them to commit suicide in face of a tyrannical majority that is always ready to resort to violence.

The very idea of showing street power — however non-violent it may be — is to threaten the government. It is not merely a case of “I shall not obey the law and will court arrest” simpliciter. History of civil disobedience in the subcontinent is linked to the idea of hartal or strike. It is linked to the idea of blocking roads and disrupting normal course of life and to bring everything to a standstill. It means stopping children from going to school and indeed resorting to burning buses and cars, even if due care is first taken to unload them of any passengers.

The bad laws that we may see as an excuse for legitimate civil disobedience such as the anti-Ahmadi law were all put in place at some level because of actual civil or uncivil disobedience or threat of such closures. The reason why an innocent woman spent 9 years in prison was because of the mob that is always ready and willing to surround courtrooms and pressurize the judges. Even Gandhi, being committed to non-violence, was forced to call off his civil disobedience campaign because of Chaura Chauri. Every protest march and every mob eventually leads to a Chaura Chauri. When the All India Muslim League, after being wholly committed to constitutional means for 30 years, attempted its own civil disobedience campaign for the first time in 1946, it was quickly chastened by the horrific violence that happened in Calcutta. Even with the best of intentions, it is next to impossible to control the mob. This is what makes civil disobedience wholly immoral in priest ridden emotional societies such as Pakistan or India.

The only way to fight bad laws is through constitutional means. One should challenge the vires of such laws on the touchstone of fundamental rights in a court of law. Furthermore it is important to convince and persuade your fellow citizens that we have to follow the principles laid down by the various international covenants we as a country have signed on to. If all of these fail, there is still no occasion for resorting to civil disobedience. There are numerous international mechanisms by which a nation state can be held accountable under international law. These mechanisms are bound to work in an increasingly global world. Pakistan cannot live in isolation. We have to subsist and exist as part of the world and its established order. The world and its established order are premised on certain universal rights and these have to be guaranteed. This is why Jamal Khashoggi’s murder has put even a state like Saudi Arabia, oil rich and backed by commercial interests, in a corner. Therefore there is absolutely no reason why we should abandon our faith in procedure and constitutional mechanisms and instead resort to breaking of law.

The writer is a practising lawyer and a Visiting Fellow at Harvard Law School in Cambridge MA, USA. He blogs at http://globallegalforum.blogspot.com and his twitter handle is @therealylh

Published in Daily Times, November  12^th 2018.