A man starts yelling “fire, fire” in a movie theatre, the stampede towards the exits results in injuries (even deaths) among the cinemagoers. Restraining or punishing the man would technically violate his freedom of speech, allowing such “freedom” would result in injuries and deaths to innocent bystanders, what should be the logical course of justice? The concept of a “clear and present danger” annunciated by US Supreme Court Justice Oliver Wendell Holmes involved the “freedom of speech” and licence thereof. He maintained that when any individual misuses any freedom (in this case of speech) and endangers others the concept of application of justice must recognise the situation as a “clear and present danger” and restrain the individual, relying more on logic and the spirit of the law rather than the pure letter of the law.
Much as Imran Khan, Tahirul Qadri and their respective protesters gathered in the heart of Islamabad would like to pretend otherwise, it is not just the PML-N government that is in the metaphorical firing line but the democratic system itself that is on trial. And, with the street protest against the government entering its third week, the pressure on the system has grown.
Quite how much that pressure has grown in recent days was in evidence on Tuesday as the Prime Minister’s Office issued an extraordinary statement after a meeting between Nawaz Sharif and army chief Gen Raheel Sharif. In the press release issued by the Prime Minister Office, there is not just an explicit mention that matters of high politics were discussed between the highest-ranking civilian and the most powerful military leader on matters concerning politics but that, rather extraordinarily, the two men are in agreement that the political impasse should be resolved expeditiously. The benefit that Mr Sharif and the PML-N would have hoped to gain from such a statement is fairly obvious: the federal government is trying to show that the army leadership and the PML-N are still working together and in agreement on the way out of the crisis.
Essentially, the PML-N’s posturing is meant to signal to the protesters and their leaders that the military is on the government’s side, not the protesters’. In truth, however, the PML-N’s posturing only reveals its own uneasiness – and perhaps even uncertainty – about what may happen if push comes to shove. In truth, there are enough tensions on policy matters between the PML-N government and the military to leave a lingering question mark over whether the army leadership may prefer a different political dispensation in the country.
In truth, there are no guarantees in politics. For the PML-N, the pressure is coming from many directions. The PTI has floated the idea of a so-called in-house change in parliament; the MQM has talked of a possible sacrifice being made; the PML-Q leadership has tried to sow fear by ominously reminding the political class of how political crises have led to military interventions in Thailand and Egypt; and even the ANP has talked of being committed to the democratic process but not necessarily the prime ministership of Mr Sharif. Meanwhile, protesters continued to occupy Constitution Avenue yesterday despite the Supreme Court suggesting that they needed to move.
Amidst all of this, Prime Minister Sharif has unhappily returned to his approach of being seen sometimes and heard rarely. Mr Sharif ought to speak to the public and put in perspective what this protracted crisis is about and the kind of pressures his government is under. In May 2013, Pakistanis in unprecedented numbers showed their preference for a democratic system. That same public could be Mr Sharif’s strongest ally — if he takes them into confidence.
This editorial was first published in Dawn, Pakistan’s oldest English daily. Click here to go to the original.
Drawn into an “Aid to Civil Power” situation in Islamabad under Article 245 of the (Pakistani) Constitution, are the Constitutional parameters about the use of uniformed defense personnel being followed to the letter of the law or was the incumbent government simply using them for their own political ends? Chapter 9 of the Manual of Pakistan Military Law (MPML) is explicit dealing with “Duties in Aid to Civil Power”, military officers have to take written instructions from the magistrate on duty. If the magistrate is absent, the military officer can still act “when the public security is manifestly endangered” and “in so doing he shall use as little force, and do as little injury to person and property as may be consistent with dispersing the assembly and arresting and detaining such persons”. If he goes berserk and uses the full extent of the enormous firepower he wields, every drop of blood thus spilled cuts into the foundations of the State. June 16, when 14 were killed and 95 injured by police firing in Model Town in Lahore, defies the rule of law. Without provocation the police acted on someone’s instructions. The Direct Conversation Report (DCR) provided by the intelligence agencies will be troublesome for our ruling elite family, the raison d’etre why the Federal and Punjab governments were trying to block registration of an FIR. His resignation as PM is the least of Mian Nawaz Sharif’s impending problems.
The moral dilemma is whether the Constitutional mores will be satisfied in putting down by force in the name of democracy a genuine movement for freedom, democracy and the rule of law? Can the balance between action and inaction be maintained by either obeying orders blindly or allowing the streets to make the law hostage to their demands? Between career and conscience lies an awesome responsibility of obeying the letter of the law, or alternatively one’s conscience in the spirit of the law. What constitutional mores did General Waheed Kakar adopt when he sent both President Ishaq and Prime Minister Nawaz Sharif home in 1993, and remember General Kayani in 2008 making President Zardari back down to restore Chief Justice (CJ) Iftikhar Chaudhary when Mian Nawaz Sharif accompanied by top Constitutional lawyer Aitzaz Ahsan broke the law driving through the police barricades to reach Gujranwala? Was the national interest supreme or the constitutional mores? Prime Minister Yousuf Raza Gillani’s notification restoring the Chief Justice was technically illegal, made legal only a year later post-facto by the beneficiary himself, legally and constitutionally not kosher.
Those who matter should follow the route of pragmatism to avoid complete breakdown of Constitutional authority. In a no-win situation, the Pakistan Army well realizes that instead of getting into physical involvement, for the sake of the country its “judge and jury” role is best suited within the parameters of the Constitution. With the government’s blundering in its gameplan, its credibility is on the firing line. With many problems to surmount, given “clear and present danger” of imminent bloodshed the Army may well have to soon decide about how and when to stop the rot from eating the body and soul of Pakistan. Legal opinions differ about whether or not the Army can go to the SC under Article 245 to resolve the political deadlock. Still better than taking over?
If the Supreme Court refuses to listen to the Army’s plea on legal grounds and/or fails to resolve the political deadlock, the alternatives would then never be far away. While there is no substitute for democracy, the worst type of democracy is always better than the most benign martial law but if deadlock threatens to lead to bloodshed and compromises the existence of the country, what are the choices? Martial law can never be better than democracy, the clear and present danger is having no country at all!
The writer is a Pakistan-based defense and political analyst. He can be contacted at firstname.lastname@example.org