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Pakistan’s rule of law problem

Myopic measures skirting due process, depriving people of their liberties will almost always backfire

Pakistan’s rule of law problem

The latest proposed actions of the Government of Sindh and the Charsadda tragedy reveal a common thread: our myopic policies.

Let’s start with Sindh where the provincial government is considering to introduce a law that will make it mandatory for mosques throughout the province to issue only officially approved sermons during Friday prayers. The logic advanced by the government in defence of these plans centres around ensuring sectarian harmony. Another argument cites checking hate speech.

My contention is that this is an ill-advised move that deserves vehement opposition — and while it may be good for public relations, it is bad statecraft.

There are obvious free-speech related objections but equally important are objections related to strategy. Bear in mind that I am not denying the gravity of the problem or arguing that the issue is trivial — we all have genuine heart-felt concerns about this issue. However, the first important question to ask is: why is there lack of sectarian harmony in Pakistan or Sindh? If the answer to that question is related to what is said in Friday sermons then maybe the Sindh government’s plans make sense.

But we all know that Friday sermons are not the reason for the murderous sectarian violence in this country. Hate is preached in conversations, curriculum (regulated as well as unregulated) and propaganda that goes on 365 days a year — and deciding what can be said over loud-speakers during Friday prayers does not cut it.

Now it is possible for people to twist this and argue that all speech by mosque imams should be regulated. And, while I oppose such a move, you can try that and it will fail too — because the state is too weak and the hate-filled mentality too deeply embedded. Existing hate speech related laws prove this. The issue is lack of will as well as capacity. The problem stems from a lack of enforcement and not from an absence of laws. The solutions are long term and include curriculum reform and a more proactive role by the state in facilitating a pluralistic discourse — rather than punishing speech.

My position and reservations regarding laws punishing hate speech have been shared in this space: I sincerely believe that the solution to hate speech is more speech. Sure, Europe has hate speech laws. But none of those states espouse a particular state religion. When Pakistan proclaims itself as an Islamic Republic and then assumes the power to punish hate speech related to various sects, it will inevitably result in certain sects benefiting and others suffering. Which version of Islam will determine what can or cannot be said? The dominant narrative, of course — so do not assume that your notions that hate speech against Ahmadis should be checked will be entertained.

The state does not treat Ahmadis as Muslims so they figure nowhere in this. The same goes for Christians, Hindus, Sikhs, Jews etc. Hate will remain alive and well against all these communities and those marginalised. And the Sunni majority version of what counts for sectarian harmony will prevail. It already does but why give it more legal cover?

There is also the question whether ceding more power to the state to punish people based on the content of their speech is advisable. We must all think carefully before encouraging or celebrating such laws. I think what the good-natured people often end up celebrating is their ideal of what should eventually be achieved — a society with rule of law. And since a new law is the closest thing available to a peg they can hang their ideals on, they raise a toast to it. While the citizenry gets drunk on promises the real party begins for the state—since it expands its powers without effective opposition.

One popular and easily available pushback to my arguments above goes something like this: if lack of enforcement is the problem then why have a law against anything? Why not repeal all laws? This question misses the point and in fact ends up supporting the argument I have made above. Since the problem is lack of enforcement and will of the state, the solution lies in improving enforcement of existing laws. Pakistan has a rule of law problem; not a hate-speech problem or a minority rights problem. A holistic view can solve this puzzle but only in the long run. Myopic views will only increase the citizens’ disillusionment with the state and make them more vulnerable.

It is worth pointing out that when a weak state continues to act in ignorance of its limitations, the state itself undermines whatever exists of its authority. Military courts are a classic example of this — and what happened in Charsadda a painful reminder. Myopic measures skirting due process, and pushing the notion of constitutionalism to its limits, should not be sold as the panacea to our problems. Placing an inflationary premium on actions that seek to solve deep rooted problems by depriving people of their liberties will almost always backfire.

After the APS Peshawar tragedy we amended the Constitution, created military courts and decided to forego due process — all under the promise of a stronger fight. Only the naïve would equate resolve with effective long-term action. Our enemies, perhaps weaker, are not going to go away any time soon. They will keep coming back under different names and different aims (whether TTP or ISIS)—they will continue to find Pakistan a fertile recruiting ground.

For those who think we are fighting an identifiable enemy with a flag, sure we might have more territory under our control. But our enemies don’t need to control territory to hit us. They do so by living in our midst, they spread hate while sitting in our lecture halls, mosques and during casual bus rides. It is their ideas against ours. They believe in restricting speech and killing without due process.

As we assume shades that render us barely distinguishable from those we fight, how long will it be before we find it hard to remember where we started from?

Waqqas Mir

waqqas
The writer is a practicing lawyer. He can be reached at [email protected]

One comment

  • This good article and I agree with you, If our country police and court do his work with honesty majority of Pakistan issue solve.

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