JURIST Guest Columnist Sadaf Aziz of the Lahore University of Management Sciences Faculty of Law in Lahore, Pakistan, says that the government’s use of plainclothes thugs to brutally suppress dissent and protest in the present "emergency" makes it clear that Pakistan's citizens have been divested of basic rights to the point where they have no obligation to abide "rules" decreed by power….

"Human rights are most often upheld or flouted in the police-station". This is a truism that merits further investigation. Having participated in several of protests held at the Lahore High Court in the last year, where tear gas canisters were hurled into small semi-enclosed spaces and lawyers beaten at the gates and more recently within the premises themselves, I have thought often of this line. I have paraphrased it from an article written by the legal philosopher Costas Douzinas, where it is situated within a thesis suggesting that certain historical and material contingencies much be acknowledged so as to understand rights as not simply inhering by virtue of our being humans as such, but rather that rights need to be articulated with reference to the actual political structures that govern us.

Now there is a temptation here to slip into an infinite relativism expressed in the statement that "some societies respect ‘so-called’ human rights and others don’t". In other words, we have rights when the powers that be decree that we should have them. To guard against this slippage, we have on the other side a belief that everyone, everywhere, at all times, is bestowed with rights. However, even this absolutism fails because sufficient empirical evidence can always be excavated to suggest that at the least, a self-understanding of rights is a precondition for asserting their existence. Thus, if we look more clearly at what rights are we see that they are an array of immunities and liberties which are vested primarily in individual subjects as protected spheres of action that superior powers cannot impinge without consequence.

It becomes imperative to acknowledge the centrality of the state for defining what rights are. The state that does not know us individually – and which most of us never access other than at its lowest levels – is a mammoth of organizational strength.

Given the managerial prerogative of defining and organizing populations and deploying productive potentiality towards determinate ends, the state has come to command a coercive apparatus that is most raw in its representation as military and police might. All of our fundamental rights mean particular things in reference to the power that the police force is accorded in exercising state objectives. While the correlative relation is clear in regards to some of the fundamental rights, such as the entitlement to due process according to law in cases of arrest and detention such as in Article 10 of Pakistan's currently suspended constitution, the rights to speech, assembly and privacy are also in part immunities against coercive action by these organs of the state.

The conditions of a government’s right to rule have to be broader than its capacity only to wield and control these institutions of force and coercion. The daily content of our lives is moulded in reference to guidelines and strictures that the state imposes but which we have internalized and which guide our behavior. In other words, those who paid taxes in the pre-martial law period will probably continue to do so now. Correspondingly, we will abide by rules for civil and commercial transactions, registration of births and marriages and not drive on the wrong side of the road because they are standards that we agree are desirable as social control mechanisms. We do them in consideration of the larger social totality and as contributions to the management of the state.

The government that provides managerial direction in the service of the state relies upon these acts of voluntary compliance. Where such a government is non-representative, non-accountable, we as residents of such a state have no say in deciding where the aggregate aims of government policy are directed. Particularly when considerations and reasons which direct government policy cease to be stated and are kept from public purview, compliance becomes severed from its rational basis and the government has to rely on the use of overt force to maintain its prerogative.

Of course we are used to such scenarios and the population of the nation has silently abided the recourse to force in establishing the ‘writ’ of the current government through such means in Balochistan and in the North. The notion that the legitimate use of force needs to be tempered by rights guarantees and proportionate to governmental objectives has not gained sufficient support amongst the general populace to pressure the government to change its course in those instances. Can we complain now that the Musharraf regime is employing similar tactics against those groups who are opposing current governmental actions to circumvent the law? Knowledge of our own hypocrisy should only bolster the claim that rights, once enunciated, have to be built upon and their content guarded against incursions because it is only in their constant restatement that an ever-broadening inclusion of the interests of a diverse populace can be maintained.

The sheer repugnance that memories of the past week awaken should disturb the last vestige of a mutuality of relations between this government and private citizens. We should all rest assured that our relation to the police is no longer what it was before fear of reprisal became the only operative principle dictating compliance with official dictate. It is more than a little ironic that the exemplary adherents of law, lawyers, are the representative group for society in this face-off with the government. Clearly the lawyers are aware that a fundamental condition of their compact with the government has been altered or challenged.

On the other hand, the formal description of roles within a constitutional governance regime entails that the police are the guardians of the order that is mandated by sovereign authority in the first place. For them to be considered to be legitimately so is to recognize them as having validation of a higher form than simply their names appearing on a payroll ledger. They are the police and not a mercenary army for reasons that are embodied in the notion of direct rule in the name of a general populace.

When our interactions with the police are guided by the acknowledgment that it is only their efficacy in punishing us or in holding us hostage then the notion of legitimate force has lost its grounding. The immediate conditions of this failure are represented in this government’s use of plainclothes thugs to brutally suppress dissent and protest. We first saw these men in white shalwar kameezes encircling protesters who had gathered outside the office of the Chief Election Commissioner on September 29th of this year. In combination with the uniformed police officers they assaulted those demonstrators in a brutal and shocking manner. The scenes of four, five or six of them throwing punches and kicking private citizens, young and elderly alike have been, to my knowledge, misconstrued by some foreign news channels as being indicative of ‘mayhem’ on the streets of Pakistan. However, to all in the country it is clear that the perpetrators of violence are receiving their instructions from the one unitary chain of command that wishes to only hear
its own voice.

When these men without name tags and discernible identities are given instructions to roam campuses, enter courthouses and spread fear, then it is clear that we have been divested of the basic rights that are necessitated wherever a government is constituted in the name of the state. Robbed even of the ability to name our tormentors when the actions of the police meld with the actions of these plainclothesmen, it is time to acknowledge that the imbalance has been tipped too far on one side for any of us to abide ‘rules’ decreed.

I do trust, however, that there will be a return to a livable order, one which will provide space to discuss the organizational forms for continued collective living. A constitutional question that necessarily needs to be debated then is whether emergency action, however circumscribed by the enumeration of necessary conditions and the need for legislative assent, can ever be invoked in a manner that leaves us nakedly subject to police force. In spite of the fact that this is not by any means a constitutionally mandated emergency, I believe that public debate and perhaps judicial resolve is necessary to ensure that in the future such real rights can always be invoked, even if in the guise of an ’emergency constitution’.

Sadaf Aziz is a professor of Law & Policy at the Lahore University of Management Sciences

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