The constitutionality of protest

On these pages, on September 9, Shehreen Najam wrote an essay, “Jinnah’s politics — a gentleman’s game” about how the current Imran Khan and Tahirul Qadri-led agitations are not what Jinnah would have done. In taking Jinnah’s example – and showing how divergent he was from Gandhi in his politics - she makes a broader point about how reform, and political change in general, ought to be pursued constitutionally rather than via “mobs” and “anarchy”.

There are, however, a few problems with that argument. First, it’s factually incorrect. While Jinnah broadly stayed away from Gandhi’s protest movements, he did conduct his own. Direct Action Day — better known as the Great Calcutta Killings — was a day of protests declared by the Muslim League in 1946, and, as alluded to, led to very much the same anarchy and violence Najam decries.

Second — and more importantly - if one really does want a revolution it will have to be unconstitutional by definition. A country’s constitution lays out the conditions under which a change of government ought to take place; in most places including Pakistan, constitutions generally specify elections and a government to come in by popular vote. Barring a no-confidence vote, or a nullification of last year’s elections by the Supreme Court, there are very few legal paths left to those that want Nawaz to go.

Here’s where revolution comes in. Just because a revolution is extra-legal doesn’t necessarily make it ‘wrong’. After all, dictators from Louis XVI all the way to Ceaucescu and Mubarak have been removed through extra-legal, if popular, means. While it is a stereotypically Pakistani inclination to ignore or admonish Gandhi, his approach is relevant in this case. Choosing not to pay taxes on salt was illegal according to the law imposed on India at the time. By breaking the law, Gandhi highlighted how the law worked against Indians rather than for them. By refusing to sit in a seat designated for black people, Rosa Parks made a similarly powerful statement. There is always space for breaking the law and working against the state while maintaining moral superiority if citizens feel that the laws no longer serve them justly, or at all.

That is especially the case when the movement is popular. One can be upset at the freshly washed laundry hanging from the Supreme Court grounds (I’m personally a fan. The state belongs to its people; why shouldn’t ordinary citizens claim what is theirs in a city that they have long been shut out from?) but ‘unruliness’ hardly qualifies as a legitimate complaint against a protest that claims serious grievances against the current government. In fact, to insist on politics being a ‘gentleman’s game’ excludes the very idea of mass protest and the protesters themselves.

Even violence can have legitimacy. Nelson Mandela of all people advocated violent resistance to the apartheid regime in South Africa; organizations like the FLN in Algeria, the JKLF in Kashmir, or the Viet Cong in Vietnam have all claimed moral supremacy over the regimes they violently fought. Major religions, including Islam, also allow for armed resistance. While both PTI and PAT have insisted on keeping their protests peaceful (with occasional lapses), it is hardly out of the ordinary for revolutions to involve violence at some point. But in the cases outlined above, right was always claimed to be on the agitators’ side, even if the law was not. In Qadri and Imran’s case, that case is more difficult to make. In Qadri’s case, he is completely entitled to want a revolution. But it is difficult to lecture politicians and the public in general on the tenets of the Constitution when Qadri’s only aim is to eschew it. As mentioned earlier, inqilab is by definition antithetical to the Constitution. Qadri can, of course, make the argument that the constitution is a limp document that only seeks to the further the interests of entrenched politicians, but he hasn’t. Instead, he has listed time and again the tenets that he claims the current government has broken, and his own allegiance to the very same document (notwithstanding the small inconvenience of his Canadian citizenship).

Thus the issue with Qadri’s protests isn’t so much the call for revolution, but the fact that the call is being made from the impossible claim of being in accordance with the constitution.

Imran’s case is more complicated because the rhetoric is different. The call is for Nawaz to resign, not for a revolution. The Pakistan Constitution allows for the right to assemble, and Imran has claimed that right, yet he alludes to the Egyptian Revolution in his daily speeches, not least by referring to D-Chowk as ‘Azadi Chowk’. Imran has also chosen an extra-legal route (among others) for his protest in the form of tax avoidance. There ought to be a space for this kind of civil disobedience, regardless of what one thinks of his tactics or complaints. That said, Imran’s own spotty avowal to the constitution is problematic. His statement that called the Musharraf dictatorship better than Nawaz’s democracy – backed by Imran’s own support for Musharraf when he was in power – should not be taken as comment on the quality of governance as was meant. It has greater, more serious implications for what one considers a legitimate government. If Imran truly thinks a dictatorship was better (although I do suspect that he meant it as a compliment to Musharraf) then it implies that he doesn’t have any qualms about how a ruler obtains power, and is more concerned about how the ruler exercises it. That idea directly contradicts the emphasis on his allegations of rigging, and also his own allegiance to the sanctity of the constitution.

In either case, then, the more important question is how seriously do Imran and Qadri take their own rhetoric? Civil disobedience and revolution are both concepts that are universal and time-honoured; but as tactics they require intellectual and moral rigour that, in this current political impasse, has been patchy at best. When it comes to tactics, one can be Gandhi or Jinnah. It’s a lot harder to be both.

Published in The Express Tribune, September 21^st, 2014.

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