By Yasser Latif Hamdani
(Imran Khan’s dramatic announcement to resort to civil disobedience had TV anchors and newsmen scampering to define civil disobedience for their viewers. Civil disobedience has been a concept that has vexed political scientists for a very long time. There is no consensus on what this term means and has come to denote many things. An attempt has been made through this article to investigate the desirability or undesirability of civil disobedience in the context of Pakistan. – Author)
Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of government except all those other forms that have been tried from time to time.
(Sir Winston Churchill, Prime Minister of Great Britain 1940-1945, 1951-1955)
Democracy as a moral ideal is thus an endeavour to unite two ideas which have historically often worked antagonistically: liberation of individuals on one hand and promotion of a common good on the other
(John Dewey and James H Tufts)[i]
Imran Khan’s dramatic announcement to resort to civil disobedience had TV anchors and newsmen scampering to define civil disobedience for their viewers. Civil disobedience has been a concept that has vexed political scientists for a very long time. There is no consensus on what this term means and has come to denote many things. An attempt has been made through this article to investigate the desirability or undesirability of civil disobedience in the context of Pakistan. My unit of analysis is the state, its survival and success. To my mind civil disobedience is morally unsustainable as it offends the basic and most important fundamental principle upon which an enlightened and democratic state is to be built i.e. general will of the body politic as a whole. Underlying this thought is the belief that a majority in a democracy will not use civil disobedience as a means. However, it will always be the minority, with grievances justified or unjustified, which will attempt to render the system unworkable. Civil disobedience therefore is civil insurrection. I am under no illusion that democracy, especially the much compromised version of it in Pakistan, is perfect. Far from being perfect it is quite tyrannical in some ways. However, as a lawyer and a humble student of political science, I believe that the recourse available to all social reformers, in Pakistan at least, is the process of constitutional amendment under Articles 238 and 239 of the Constitution of Pakistan.
I attempt to navigate the issue of civil disobedience by first placing before the reader the views and thoughts of the two greatest practitioners of civil disobedience i.e. Henry David Thoreau and Mohandas Karamchand Gandhi. I show through the writings of these two men that the principle of civil disobedience is in its barest minimum flouting of the law and a profound disregard for civil government. In other words, civil disobedience attempts to overthrow social contract and replace what is civil liberty with natural liberty. Needless to say we have come a long way from the state of nature and our entire civilization is based on ceding some of our liberty to protect what is ours and collectively live in a society and its norms. It is for this reason that I find the whole civil disobedience idea to be a regressive idea designed to thwart the progress of an enlightened and progressive state.
My argument essentially is this – majorities, where they are not permanent or cultural but indicative of views or issues, may err, but ultimately majorities will err less than a subsection and that in the longer run majorities will be forced to adopt a course best suited for all. Pakistan’s future lies in putting our faith in the democratic system and working it the best we can. Only democracy will resolve the multifarious issues facing our state.
Thoreau and the Civil Disobedience:
The origins of the term civil disobedience are found in Henry David Thoreau’s famous essay “Resistance to Civil Government” which was renamed “Civil Disobedience”. Thoreau had famously refused to pay taxes to the US Government in protest against the Mexican-American War and slavery of his time. In the aforementioned essay Thoreau laid down the basic contours of what was adopted later and popularized by Gandhi and Martin Luther King Jr., amongst others. The basic premise on which the idea of civil disobedience was built was the belief that governments do more harm than good. Thoreau believed earnestly that the road from absolute monarchy to limited monarchy and from limited monarchy to democracy need not end at democracy but to proceed to a higher state – a state which is enlightened enough to recognize the individual above all else. Keeping this in mind, he sought to reject allegiance to the government beyond what authority was necessary. He refused to pay the poll tax for years and even spent some time in jail for it.
“That government is best which governs not at all and when men are prepared for it that will be the kind of government they will have. Government is at best but an expedient; but most governments are usually and all governments are sometimes inexpedient”. [ii]
Democracy in this view is not an adequate check to control the excesses of the majority which is accepted as brutish. Therefore the laws made by it are immoral. Thoreau continues:
“After all when power is once in the hands of the people, a majority are permitted , and for a long period continue, to rule, is not because they are most likely to be in the right nor because this seems to be the fairest to the minority but because they are physically the strongest. But a government in which the majority rule in all cases cannot be based on justice even as far as men understand it”. [iii]
About the law itself, he writes:
“Law never made men a whit more just; and by means of their respect for it, even the well disposed are daily made the agents of injustice. A common and natural result of an undue respect for law is that you may see a file of soldiers, colonel, captain, corporal, privates, powder monkeys and all marching in admirable order over hill and dale to the wars, against their wills, aye, against their common sense and consciences…”[iv]
Thus Thoreau based his doctrine of civil disobedience on the premise that governments were inherently evil and should be opposed. He envisaged instead a society where individuals were governed by their conscience. In this idealistic utopia he imagined that many of the ills of his time such as slavery would not exist. In other words, more than being a civil disobedience to the state and its government, Thoreau’s idea was of resistance to civil authority or government – hence the original name of his essay. The underlying presumption- though this may not be expressly stated- was that the government or authority being resisted would not resort to extreme measures like violence to quell the resistance.
Gandhi and Civil Disobedience:
The other famous practitioner of the idea was said to be Mohandas Karamchand Gandhi in British India. Gandhi no doubt built upon many of the concepts that Thoreau forwarded; yet his method was significant in its departure. Gandhi himself noted the salient points of difference between himself and Thoreau when he wrote:
“Thoreau was not perhaps an out and out champion of non-violence. Probably, also, Thoreau limited his breach of statutory laws to revenue law… Whereas the term civil disobedience as practiced in 1919 covered a breach of any statutory and unmoral law”. [v]
Perhaps the most dangerous exposition of Gandhian civil disobedience was what Gandhi revealed to Lord Hunter of the Hunter Committee. Lord Hunter asked if it was not a duty for a Satyagrahi to report a serious crime committed by fellow protesters. Gandhi replied:
“I don’t want to misguide the youth of the country, but even then he could not go against his own brother… The Satyagrahi’s position is somewhat similar to a counsel defending an accused. I have known criminals of the deadliest type and I may humbly claim to have been instrumental in weaning them from crimes. I would be forfeiting their confidence if I disclosed the name of a single man. But supposing I found myself wanting in weaning them, I would surely not take the next step to go and inform the police about them. I do not hesitate to say that for a Satyagrahi it is the straightest thing not to give evidence of a crime done even under his nose.” [vi]
Explaining his position on Satyagraha and Non-violence, with reference to “Sermon of the Mount”, Gandhi prescribed that all peasants should submit willingly to the tyranny of the land lords for that would end up giving land lords the land they never wanted. [vii]
Yet Gandhi disdainfully dismissed the idea of constitutional struggle as “slave petitions”. He writes:
“Now we will take the question of petitioning. It is a fact beyond dispute that a petition, without the backing of force, is useless. However, the late Justice Ranade used to say that petition served a useful purpose because they were a means of educating people. They give the latter an idea of their condition and warn the rulers… A petition of an equal is a sign of courtesy; a petition from a slave is a symbol of his slavery. A petition backed by force is a petition from an equal.” [viii]
To what extent Gandhian civil disobedience was successful in the independence movement is not the subject of this article. Suffice to say that civil disobedience was not what won India its independence but in the view of this writer at least, Gandhian movements delayed the push towards self rule by a decade or so. The point I wish to make is this: The basic underlying theme of civil disobedience as an idea is always a full frontal challenge to constitutional order in a jurisdiction.
Civil Disobedience and the Pakistani constitutional system:
“Now, in oligarchies the masses make revolution under the idea that they are unjustly treated, because, as I said so before, they are equals and have not an equal share, and in democracies, notables revolt, because they are not equals and yet have only an equal share”
“For by art is created that great Leviathan called a Commonwealth, or State, in Latin Civitas, which is but an artificial man; though of greater stature and strength than the natural, for whose protection and defense it was intended; and in which the sovereignty is an artificial soul, as giving life and motion to the whole body; the magistrates and other officers of judicature and execution, artificial joints; reward and punishment (by which fastened to the seat of the sovereignty every joint and member is moved to perform his duty), are the nerves, that do the same in the body natural, the wealth and riches of all the particular members are the strength; salus populi,( the people’s safety) its business; counselors, by whom all things needful for it to know are suggested unto it, are the memory; equity and laws, and artificial reason and will; concord, heath; sedition, sickness; and civil war death. Lastly, the pacts and covenants, by which the parts of this body politic were at first made, set together, and united, resemble that fiat, or the let us make man, pronounced by God in the creation.
The main underlying problem with the idea of civil disobedience is the question of who determines what law or statute or act of government is immoral or worthy of revolting against. Democracy is not perfect. Pakistan’s constitutional system is replete with superfluous oddities. Some would argue, with good reason, that the 2nd Amendment to the Constitution itself is morally reprehensible and not worthy of obeying. Be that as it may, the test of civil disobedience is the public act defying state authority. Speaking of unjust laws, a liberal may well name very rightly the blasphemy law as well as the laws that have been enacted specifically to prosecute one community as being unjust laws. What one proposes to do about the unjust law is what differentiates the two approaches.
The basic structure of Pakistan, by no means unchangeable, envisages it to be a democratic, federal and Islamic state with fundamental rights for each citizen regardless of any distinction. This is not an unchangeable structure and is subject to Articles 238 and 239 of the Constitution of Pakistan which give the National Assembly of Pakistan the right to amend the constitution with a 2/3rds majority.[xi]
Justice Sajjad Ali Shah held in a judgment that “In Pakistan instead of adopting the basic structure theory or declaring a provision of the Constitution as ultra vires to any of the fundamental rights, the court has pressed into service the rule of interpretation that if there is a conflict between the two provisions of the Constitution which is not reconcilable, the provision which contains the lesser right must yield in favour of a provision which provides higher rights…”[xii]
This inherent flexibility of the Constitution therefore renders any argument calling for revolutionary change through means of civil disobedience as unconstitutional. What is left therefore is not the mechanism of change but actual change which requires social acquiescence. Ultimately the real target of any purported civil disobedience movement in Pakistan cannot be justified on grounds that there is a constitutional and legal bar to change but the fact that society may not always be willing to go along with certain changes. This lag is what causes the unholy impatience of reformers and revivalists alike.
The problem the idea of civil disobedience poses is that it is an equal opportunity device for all opinions and hue and cry to create chaos and bring down the constitutional order. Let me put it this way: a massive protest movement led to the pressure that forced the government in 1974 to ex-communicate, through a constitutional amendment, an entire sect and to deny them their fundamental right to identity and religious freedom. Would it not be equally possible that tomorrow a group of “non-violent” Sunni clerics attempt to bring a peaceful civil disobedience movement to Islamabad to get Shias declared Non-Muslim? To them clearly the term “unjust” would have a meaning quite at odds with the meaning as understood by say the civil society which hopes to fight against religious exclusion.
It is far better therefore for societies like Pakistan which are divided into various communities and whose citizens often carry multiple identities shaped by religion, sect, culture, language, etc. to put their faith in the constitutional system and work it, slowly chipping away at the inequities, injustices and prejudices that the society is faced with.
Constitutional Resistance: In this case, the advocate or the activist operates under the law while expressing reservations about it. In the subcontinent both the Congress and the Muslim League contested the 1937 elections under the Government of India Act, 1935, while rejecting the statute as being unacceptable. The stated aim of both these parties was to achieve independence and to thwart the federal provisions of GOIA 1935 which they managed to do very successfully, leading to the partition of India in 1947.
Constitutional Protests versus unconstitutional protests: Article 16 of the Constitution of Pakistan gives every citizen the right to assemble peacefully subject to reasonable restrictions imposed by law in the interest of “public order”. [xiii] Therefore it is not an absolute right but is subject to reasonable restrictions. For example, it is within the purview of the government’s powers to resort to Section 144 of the Criminal Procedure Code which is used to curb unlawful assembly which may lead to a riot or an affray. [xiv]
It is important therefore to keep in mind the short order of the full bench of the Lahore High Court in mid August which stated:
“The respondents PTI and PAT are restrained meanwhile from launching the azadi march, inquilab march or holding a dharna at Islamabad in an unconstitutional way keeping in view the sanctity of independence day and the chaotic and uncertain situation prevailing in the country.”
What would constitute an “unconstitutional way”? At the time of the writing of this article the issue of the constitutionality of PTI’s and PAT’s march is sub judice before the Lahore High Court.[xv]
Generally speaking the test of constitutionality of a march would include the following:
- Did PTI and PAT break the law during the marches and protests?
- Did PTI and PAT cause disruption to routine business of the state or caused other citizens’ rights to be infringed?
PTI and PAT broke the law in the following instances:
- PTI and PAT convoys refused to pay the toll taxes on the Motorway and the GT Road.
- PTI and PAT attacked police officers and beat them up on numerous occasions.
- PTI and PAT attacked the parliament premises and occupied it.
- PTI and PAT attacked the PTV building and occupied it for a while.
- PTI and PAT routinely attack GEO TV building.
- PTI and PAT engage in routine search and pat down activity on government officials.
Lawyers representing the two parties will be hard pressed to explain how the march was constitutional and not unconstitutional given the overwhelming visual evidence available in this regard.
Taxes, Utility Bills and the Odious Debt Theory
Another important aspect of the civil disobedience movement as unveiled by Imran Khan was the refusal to pay taxes and utility bills to the government. He seems to have taken a leaf out of Arvind Kejrival’s playbook. Between October 2012 and May 2013, as many as 24,000 citizens of Delhi refused to pay their electricity bills as part of civil disobedience.[xvi] So far however Imran Khan’s call does not seem to have created that kind of momentum. It may also be stated that this act – i.e. not paying bills or taxes – in of itself is not unconstitutional. These are actions with civil liability. This is very similar to the odious debt theory in international law that is held up as justification for sovereign default on debt repayment. Alexandar Sack coined this legal doctrine which states:
“When a despotic regime contracts a debt, not for the needs or in the interests of the state, but rather to strengthen itself, to suppress a popular insurrection, etc, this debt is odious for the people of the entire state. This debt does not bind the nation; it is a debt of the regime, a personal debt contracted by the ruler, and consequently it falls with the demise of the regime. The reason why these odious debts cannot attach to the territory of the state is that they do not fulfil one of the conditions determining the lawfulness of State debts, namely that State debts must be incurred, and the proceeds used, for the needs and in the interests of the State. Odious debts, contracted and utilised for purposes which, to the lenders’ knowledge, are contrary to the needs and the interests of the nation, are not binding on the nation – when it succeeds in overthrowing the government that contracted them – unless the debt is within the limits of real advantages that these debts might have afforded. The lenders have committed a hostile act against the people, they cannot expect a nation which has freed itself of a despotic regime to assume these odious debts, which are the personal debts of the ruler.”[xvii]
It is clear that Imran Khan is extending this theory to internal taxation in some form but perhaps more alarmingly is also calling into question the credibility of the Nawaz Sharif government. Could it be that we will see some application of the Odious Debt Theory to circumvent the principle of pact sunt servanda in the event that there is a regime change caused by this movement? This certainly was indicated when Imran Khan warned IMF and the World Bank not to give Pakistan any more loans. This is populist gimmickry at its best; charismatic Imran Khan taking on the status quo in Pakistan and on a global level through civil disobedience vis a vis taxation and international debt. However one wonders what the economic cost of this rhetoric is going to be.
Consider for example Imran Khan’s charge that this is “Hosni Mubarik’s Democracy”. First of all, the civilian constitutional system undergoing democratic consolidation is very different from Hosni Mubarik’s 30 years of absolute rule of the Arab Republic of Egypt. This charge in of itself is inaccurate. Secondly – let us say that indeed the situation in Pakistan is similar to Egypt in 2011, which is absolutely false it must be repeated, what has the “revolution” against Hosni Mubarik achieved? And was this so called Arab Spring a genuine revolution?
The whole Arab Spring episode is said to have emanated out of the writings and influence of Gene Sharp of the Albert Einstein Institute for Non-Violent Action.[xviii] The New York Times lists him as the inspiration for the so called Egyptian Revolution.[xix] Imran Khan who is always willing to accuse others of being “funded” seems to have no problem accepting externally imposed “solutions” that can potentially tear asunder the political and social fabric of society.
Democracy versus Civil Disobedience
The basis of a democratic state is liberty; which according to the common opinion of men can only be enjoyed in such a state; – this they affirm to be the great end of every democracy. One principle of liberty is for all to rule and be ruled in turn and indeed democratic justice is the application of numerical and proportionate equality; whence it follows that the majority must be supreme and that whatever the majority approve must be the end and the just.
Aristotle Politics Book VI “Democracy and Oligarchy” Chapter 2
In a democracy the principle that majority is right applies as a legal fiction. We know that majorities are not always right and we know that majorities are often tyrannical but for a constitutional democratic order to flourish, this fiction has to be adopted. Once this fiction has taken root, the idea is to convince the majority of the morality or immorality of a certain act or omission. Pakistan’s democracy is by no means perfect as has been admitted time and again. Feudal interests, vested interests and other more insidious interests mould it making it less free, less ideally democratic and more problematic. Yet Pakistan’s future lies in accepting the wisdom of this dictum in Pakistan. It is very important to keep in mind Pakistan is a federation of four provinces. Any civil disobedience movement or a revolutionary urge by a certain segment would necessarily be seen as blackmail by smaller ethnicities and groups.
Only a social contract can fully satisfy citizens of a multi-cultural and multi-ethnic state like ours. Rousseau wrote in some detail on the issue of social contract and it will not be out of place to dwell on what he wrote:
“Where shall we find a form of association which will defend and protect with the whole common force the person and the property of each associate, and by which every person, while uniting himself with all, shall obey only himself and remain free as before? Such is the fundamental problem to which the Social Contract gives the solution.”[xx]
Now the converse side of this arrangement is the sovereign. A social contract is a reciprocal arrangement. But more importantly and this bears emphasis – a sovereign in a democracy is to be composed entirely of the individuals that make up that sovereign and so a sovereign cannot do anything against the interest of those individuals. It follows therefore that whoever wishes to disobey the general will of the body politic or the members of the state expressed through its sovereign is therefore to be taken to task by the entire body. It is this social contract that civil disobedience attempts to defy.
Rousseau wrote: “Man loses by the social contract his natural liberty and an unlimited right to all which tempts him and which he can obtain; in return he acquires civil liberty, and proprietorship of all he possesses.”[xxi]
Natural liberty is liberty limited only by the limits of one’s physical power. Civil liberty is liberty limited by the general will and this general will is to be expressed through democracy. Now it is true that in Pakistan we find often that the elections are tainted. The answer to bad democracy is more democracy and to let the system work. John Locke, the famous British political philosopher, wrote:
“Though in a constituted commonwealth, standing upon its own basis, and acting according to its own nature, that is, acting for the preservation of the community, there can be but one supreme power, which is the legislative, to which all the rest are and must be subordinate, yet the legislative being only of fiduciary power to act for certain ends, there remains still in the people a supreme power to remove or alter the legislative when they find the legislative act contrary to the trust reposed in them; for all power given with trust for the attaining an end, being limited by that end, whenever that end is manifestly neglected or opposed, the trust must necessarily be forfeited and the power devolve into the hands of those that gave it who may place it anew where they shall think best for their safety and security”. [xxii]
Unfortunately the impatience of PTI’s support base, urban middle classes, in getting what they want is largely behind Imran Khan’s disastrous decisions. The misleading slogan of Naya Pakistan envisages a rupture with the past with the slate swept clean. That is not how societies work. A better Pakistan has to evolve and not created anew. We have to get our priorities right – first there should be democratic consolidation through political stability. Political stability would ensure economic opportunities and ultimately an egalitarian society. If only we would allow the system to work long enough, the dynasties would wither away. Dynasties in politics are created by interruptions and violence. Had the 1977 coup not happened and had Zulfikar Ali Bhutto not been assassinated through a farcical court case, Pakistan People’s Party may well have developed as a political party independent of the Bhutto legacy. If only the 1999 coup had not occurred, the Sharifs may well have been phased out by now. No society or country is exempt from these rules and every society has to evolve on its own pace.
[i] Ethics by John D. and James T , Chapter XVII, “Morals and the Political Order”.
[ii] Civil Disobedience, Henry David Thoreau
[v] Young India, 23.03.1921
[vi] Young India, 21.01.1920
[vii] Harijan 13.07.1940
[viii] Hind Swaraj, Chap. XVI
[ix] in Politics, Book V Revolutions Chapter III
[x] Leviathan – Introduction. By Thomas Hobbes
[xi] 238 Amendment of Constitution.
Subject to this Part, the Constitution may be amended by Act of 634[Majlis-e-Shoora (Parliament)] 634.
239 Constitution Amendment Bill.
(1) A Bill to amend the Constitution may originate in either House and, when the Bill has been passed by the votes of not less than two-thirds of the total membership of the House, it shall be transmitted to the other House.
(2) If the Bill is passed without amendment by the votes of not less than two-thirds of the total membership of the House to which it is transmitted under clause (1), it shall, subject to the provisions of clause (4), be presented to the President for assent.
(3) If the Bill is passed with amendment by the votes of not less than two-thirds of the total membership of the House to which it is transmitted under clause (1), it shall be reconsidered by the House in which it had originated, and if the Bill as amended by the former House is passed by the latter by the votes of not less than two-thirds of its total membership it shall, subject to the provisions of clause (4), be presented to the President for assent.
(4) A Bill to amend the Constitution which would have the effect of altering the limits of a Province shall not be presented to the President for assent unless it has been passed by the Provincial Assembly of that Province by the votes of not less than two-thirds of its total membership.
(5) No amendment of the Constitution shall be called in question in any court on any ground whatsoever.
(6) For the removal of doubt, it is hereby declared that there is no limitation whatever on the power of the Majlis-e-Shoora (Parliament) to amend any of the provisions of the Constitution.
[xii] Mahmood Khan Achakzai v Federation of Pakistan, PLD 1997 SC 426
[xiii] 16 Freedom of assembly; Every citizen shall have the right to assemble peacefully and without arms, subject to any reasonable restrictions imposed by law in the interest of public order.
[xiv] 144. Power to issue order absolute at once in urgent cases of nuisance or apprehended danger. in
cases where, in the opinion of a District Magistrate, Sub-Divisional Magistrate, (or of any other Executive
Magistrate] specially empowered by the Provincial Government or the District Magistrate to act under this
section, there is sufficient ground for proceeding under this section and immediate prevention or speedy
remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and
served in manner provided by section 134, direct any person to abstain from a certain act or to take certain
order with certain property in his possession or under his management, if such Magistrate considers that
such direction Is likely to prevent, or tends to prevent, obstruction, annoyance or injury, or risk of
obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or
safety, or a disturbance of the public tranquility, or a riot, or an affray.
(2) An order under this section may. in cases of emergency or in cases where the circumstances do not
admit of the serving in due time of a notice upon the person against whom the order is directed, be passed,
(3) An order under this section may be directed to a particular individual, or to the public generally when
frequenting or visiting a particular place.
(4) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or
alter any order made under this section by himself or by his predecessor in office.
(5) Where such an application is received, the Magistrate shall afford to the applicant an early opportunity
of appearing before him either in person or by pleader and showing cause against the order; and, if the
Magistrate rejects the application wholly or in part, he shall record in writing his reasons for so doing.
(6) No order under this section shall remain in force for more than two months from the making thereof,
unless, in cases of danger to human life, health or safety, or a likelihood of a riot or an affray, the
Provincial Government, by notification in the official Gazette, otherwise directs.
[xx] The Social Contract, by Jean Jacques Rousseau, Book 1 Chapter VI,
[xxi] Ibid. Book 1 Chapter VIII
[xxii] Original Extent and True End of Civil Government, by John Locke, Chapter XIII