Nida Usman Chaudhary writes why dissent is important for a functional democracy without which there can be no progress or social advancement in Pakistan.
I regard freedom of expression as the primary right without which one cannot have a proper functioning democracy. Lord Hailsham
What is in an expression that makes it so fundamental a right that it needs to be protected in black and white? More importantly, what does it need protection from or rather who does it need protection from? To understand the force behind these pertinent questions, it is important to understand not only the role that dissent plays towards advancement of the society and the function of freedom of expression as an enabling tool that allows for creative regeneration of the societies allowing them to thrive and grow, but also to understand that manifestation of an expression, particularly of dissent, is a powerful tool that may threaten imbedded power structures because it has the capability of showing the alternative side to a story that is being handed down. The more vested the powers are in maintaining control over the narrative, the more the freedom of expression would likely be under threat. To gauge how free a society is, is therefore, to see how free the people in that society are to disagree.
‘Man is born free and everywhere he is in chains’.[i] When Rousseau first expounded this concept of freedom and its regulation to form a civil society, he spoke of freedom a man has in his natural state and how through his own free will and for his own greater protection and self-preservation, he gives up some of his liberty to a higher body politic formed as a collective to represent the general will of the people that have come together to form a society. In other words, what the individual gives up are not the freedoms per se, but the power to protect them in his individual capacity and instead places them in the collective and larger purview of the body politic now responsible to preserve and maintain those freedoms for all. This is where the body politic derives its legitimacy to govern from and is the very bargain that forms the basis of the civil society as we know today. To ensure and protect fundamental freedoms is therefore, the hallmark of all democracies.
These freedoms include civil and political rights as well as economic, social and cultural rights such as the right to vote, to associate, to assemble. They also include freedoms from arbitrary arrest or detention and the freedom to work, to marry, to choose a religion etc. Amongst these freedoms, the freedom of expression or speech is of paramount importance. Freedom of expression refers to the ability of an individual or group of individuals to express their beliefs, thoughts, ideas, and emotions about different issues without fear of censorship.[ii] It is the cornerstone of democracies because free speech is a necessary precondition for the enjoyment of other rights, such as the right to vote, to assemble and freedom of association. It encapsulates the right to dissent which is defined as the public expression of disagreement with the majority-held views which is an essential component of democracy.[iii]
Freedom of expression dates back to ancient Greece.[iv] Early scholars, thinkers, leaders, writers, poets and others have been united in their calls for preservation and protection of free speech.[v] As early as 1516, Erasmus laid stress on freedom of expression when he wrote in his book that ‘in a free state, tongues too should be free’.[vi] For centuries, writers, philosophers and, more recently, jurists and law professors have expounded differing theories on why free expression is essential in an enlightened society. As Robert Balin aptly sums it, ‘From the constitutive approach of the ancient Greeks and Immanuel Kant that free speech is an intrinsic good unto itself that furthers individual self-fulfilment, to the instrumental justifications of John Stuart Mill, that free speech furthers the search for truth, and Oliver Wendell Homes who believed that free speech fosters a “marketplace” of competing ideas and Professor Alexander Meiklejohn who said, free speech is necessary for informed self-government, not to mention Spinoza, Alexis de Tocqueville, or feminist analysis, the canon of free speech theory is crowded indeed.’[vii]
From a legal perspective, fundamental freedoms have been enshrined in black and white since as early as 1215 when Magna Carta was drawn.[viii] The English Bill of Rights of 1689 enshrined freedom of speech in the Parliament and laid down the template for constitutional rights as we know them today.[ix] This document is said to have been the inspiration behind the U.S Bill of Rights of 1791 that also guarantees freedom of expression.[x] Before this, the 1789 Declaration of the Rights of Man in France also provided for freedom of speech.[xi] Today, the Constitutions of almost all civil states including that of Pakistan guarantee fundamental freedoms including freedom of speech[xii] while global support for these are found in international instruments such as the Universal Declaration of Human Rights, 1948,[xiii]and the International Covenant on Civil and Political Rights 1966.[xiv]
The freedom of expression, and in particular the right to dissent however, is more than just a personal right to express one’s opinion. As explained by Cass Sunstein, a renowned American lawyer, ‘dissent is the leaven which propels societies to be productive, innovative, creative, attractive to human beings from diverse cultural backgrounds; that dissent unleashes the regenerative capacities which enable societies to thrive and not atrophy’.[xv] In other words, dissent serves a valuable purpose in promulgation of new ideas and social advancement. If people only ever agree or are made to acquiesce, there would never be any progress. We would never have known the world to be a sphere, we would have continued to believe that it was flat; or that the celestial bodies revolved around the earth as opposed to the sun; slavery would still be legal and public hangings still a public spectacle. In the legal profession, there is a saying that dissenting judgements speak to the future and often times we have seen how the dissenting voices on the benches have propelled visionary developments in laws such as enabling third parties not privy to contracts to be able to claim any benefits thereunder if they have been specifically mentioned in the contract.[xvi] Freedom of expression is therefore, more than a personal right and its function of propelling discourse with diverse views of the populace is a staple in the recipe of progress of civil states.
Nevertheless, freedom of expression has never been an absolute right as the US Supreme Court Justice Oliver Wendell Holmes once notably observed, that free speech does not give the right to yell “fire” in a crowded theatre.[xvii] It is also not ‘freedom’ to make or distribute obscene material.[xviii] Libel and slander are outlawed as is hate speech.[xix]The confines of law and morality are often superimposed on the qualified right of freedom of expression to ensure peace. As is often stated, ‘your freedom ends where my nose begins’.[xx] In a complex and organised civil structure some limits on liberty are not only imposed but also desired to distinguish it from a primitive state.[xxi] The challenge however, comes when these limits are abused for pushing an authoritarian agenda designed to seize or sustain power for certain segments in the society and the dissenting voices are silenced leaving little or no scope for the one element so essential for collective advancement i.e. the freedom of expression.
In our constitution, Freedom of expression is also tainted with the notion of ‘reasonable restrictions’ that the constitution allows to be placed on their access if interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, [commission of] or incitement to an offence are in question.[xxii]
This caveat was used to dispel and curtail the public demonstration by women to exercise their right to hold a peaceful demonstration in connection with women’s day 2020. A petition was filed by Advocate Azhar Siddique in the Lahore High Court calling initially for the ban on the march and subsequently calling for its regulation by the Court on pretext of the slogans and placards used on the occasion as being against Islam and offending the decency and morality of the social fabric within Pakistan. While, the march was allowed to proceed but reasonable restrictions on freedom of expressions were imposed by the then Chief of Lahore High Court, Justice Mamoon Rashid Sheikh stating that, ‘placards used by marchers should not have ‘offensive’ content on it’.[xxiii] ‘Offensive’ however, is a relative term. One may for instance ask, offensive by whose standards and to whom? If the indication is the society, then who decides which values will prevail and which ones are the ones that offend? In most cases, the dominant and prevailing power structures triumph in establishing the acceptable and the non-acceptable bounds of expression, as with all other boundaries that they succeed in imposing.
In recent years, Pakistan has witnessed a growing unease with cultivating space for diverse views and ideas. There has been a massive crackdown on journalists and activists, including against teachers and students seeking their basic rights.[xxiv] A series of legislative reforms, such as the Tahhfuz e Bunyad e Islam Bill and the control over the educational sector through the Single National Curriculum as well as through PEMRA and PTA on social media and media houses together with notorious online harm rules of 2020 and the controversial Prevention of Electronic Crimes Act (PECA) 2016 has made speaking out liable to criminal sanctions. We saw this in case of rise of #metoo movement in Pakistan and the resulting mobilization of criminal defamation through PECA 2016 which has gradually led to shunning and defeating the voices of victims and survivors of harassment and abuse.[xxv]
Nevertheless, human history is illustrious of resistance movements by people against tyrannical rulers to achieve a society where man is free. Freedom being a man’s natural state, every time it meets suppression, the desire to assert it would naturally arise among the people. We have seen this desire being expressed in different ways, throughout history; through arts and literature, through wars and resistance.
As early as 399 BC philosophers such as Socrates, holding non-conformist views to that of the majority were being executed for ‘corrupting the youth’ through their teachings, to send a message to the masses about the fate that beholds them should they digress.[xxvi] The Spanish Inquisition in the 15th century is one of the worst manifestations of crackdown against dissent which lasted for around 200 years. Over 32000 Jews and Muslims were persecuted in Spain in a bid to strengthen the Spanish catholic church.[xxvii] Mansour Hallaj, a Persian sufi poet was executed for holding divergent views likely to have been misinterpreted.[xxviii] Manto was put on trial for violating public decency through his stories,[xxix] Faiz Ahmed Faiz was jailed for his revolutionary poetry.[xxx] Sabeen Mahmud and Salman Taseer were gunned down for their critical thinking and heresy and ‘Aurat March’ and other progressive students and leaders continue to be vilified in present day Pakistan for challenging inequity, patriarchal structures and practices that are so deeply rooted in the country’s DNA.[xxxi]
There is something about dissent that makes it a courageous feat to accomplish. A seemingly simple act of expressing a thought, opinion or view can be met with such disproportionate force, makes it ‘revolutionary’ to access freedom of speech. Not many people have the courage to choose personal liberty over dominant ideology for fear of sanction and in this way, dissent has always been under challenge and infused with the notion of punishment for disobeying higher authority. At Socrate’s trial, the jury was made to face the dilemma between personal freedom vs preservation of the norms of the community and as in most cases, the desire to preserve an established order, i.e. the community, won over personal freedom as Professor Douglas O Linder aptly explains, ‘As a matter of personal integrity, he [Socrates] made Athenians choose between their love of freedom and their love of community—and, in the end, they chose community.’[xxxii] Freedom is therefore, the cost of the social order, whether democratic or authoritarian, the difference is only in the degree of the price you pay.
Suppressing dissent is a means to maintain power or preserve a dominant ideology. The fact that there is a dominant ideology indicates that a minority view exists. This alternative view is a threat to existing ideology because the power of a single act of refusal can topple existing power structures, governments, dictators and even world orders. For instance, the single act of dissent by Rosa Parks – a black woman who rejected the bus driver’s order to relinquish her seat in the "colored section" to a white passenger, after the whites-only section was filled led to an end to the bus segregation in the US and initiated the civil rights movement for equal rights in America.[xxxiii]
From Socrates to Jalib, Marx to Manto, great philosophical thinkers of their time have consistently given us the idea of freedom from any sort of oppression, inspiring movements that have culminated in social change leading to the development of the advanced societies that we now live in. This is not to suggest that the struggle for freedom within a social order is over but it does acknowledge the role of dissent in transforming existing social norms that may have outlived their time or that may have become so oppressive that our self-preservation can no longer be linked to their collective survival and so they must be challenged.
Although, the initial rights movements against tyrannical rulers and monarchs such as in the French Revolution and the American Revolution represents early struggles against authoritarian rule that led to the transformation from monarchy to democracy; such a transformation however, did not result in the end of authoritarian rule which now manifests itself in both covert and overt ways with the rise of a dictator or a class of persons establishing the social order suited and designed to preserve and prolong their rule. Till such time that forces exploiting power continue to inequitably assert their authority or rule for their self-preservation, freedom of expression will remain relevant and under threat by those against whom the voice is raised.
For this reason, incidences of asserting freedom against oppressive and tyrannical regimes are much higher than they are against a democracy. This is because the price of freedom in an authoritarian state is much higher than it is in a democracy. In a democracy, dissent forms part and parcel of the governing structure and the fundamental freedoms are enshrined, promoted and largely protected under law and constitution of the civil state. Though, they may be regulated and ‘qualified’ as opposed to ‘absolute’ rights and the law may commonly provide for ‘reasonable restrictions’ to be imposed on them, they are still more accessible in a democracy than they are in an authoritarian regime where diminishing space for dissent and disagreement can lead to serious sanctions and repercussions including torture, exile, ban and even death.
Our own history is illustrious of the many times political leaders, thinkers and dissenters were and continue to be declared traitors, foreign agents or externally funded saboteurs of national peace and security under authoritarian regimes in an attempt to preserve the rule. This war of narrative did not even spare the country’s founding father’s sister, Mohtarma Fatima Jinnah who was at one time declared to be an agent of Kabul in a high-profile newspaper advertisement campaign sponsored by the country’s first military dictator, Ayub Khan. Before her, there was Huseyn Suhrawardy a Bengali politician and briefly the prime minister of Pakistan who was also declared by the establishment as a traitor in the 1950s. G.M Syed, a politician from Sindh was imprisoned for decades on accusation of being anti-state and anti-Pakistan. Most prominent leaders, journalists, academics and other free thinkers, including the likes of Mujibur Rehman, Asma Jahangir, Wali Babur, Shehzad Salim and more recently, Ammar Ali Jan, Mohsin Abdali and Baba Jan, have all paid the price of speaking truth to power in one shape and form or another.[xxxiv]
However, as Rosa Luxemburg aptly explained, ‘Freedom only for the supporters of the government, only for the members of one party – however numerous they may be – is no freedom at all. Freedom is always and exclusively freedom for the one who thinks differently. Not because of any fanatical concept of “justice” but because all that is instructive, wholesome and purifying in political freedom depends on this essential characteristic, and its effectiveness vanishes when “freedom” becomes a special privilege.’[xxxv] That is why democracies are preferred over a fascist or authoritarian regime because the struggle for freedom is inherent in human beings. The more oppressive a regime the more those oppressed will rise to reclaim their natural state of liberty. The same is true in case of other tyrannical and oppressive systems such as patriarchy. The more entrenched the inequalities in a patriarchal structure are, the more voices there will be for parity.
Nations are born in dissent; social change is propelled by dissent. The British ruled over the sub-continent for over 200 years until in 1857 the soldiers revolted against the Raj resulting in one of the first wars for independence in the region against the British Empire.[xxxvi] Today if women in the U.S have the right to vote and hold public office, it is because of the suffrage movement of the 19th century that led to the 19th amendment in the U.S Constitution recognising men and women as having equal rights.[xxxvii] Slavery is prohibited.[xxxviii] There are international laws prohibiting discrimination on basis of race, gender, color, religion etc.[xxxix] Palestinians and Kashmiri people continue to dissent and reject the oppressive control of occupying forces by calling for their right to self-determination and resistance. Mai Bakhtawar’s resistance and murder during a landlord/tenant confrontation in 1949 eventually led to legal changes to improve the rights of peasants in Pakistan under which the landlord and the farmer were to take half share of the profit from cultivation.[xl] The 1917 Bolshevik revolution led by Lenin resulted in agrarian reforms and in nationalization of all private property in Soviet Union and laid the foundation of the Communist Party in Russia.[xli] Dissent is what was displayed in the 2007 lawyers’ movement in Pakistan that led to the general elections of 2008 and restored democracy in the country.[xlii] Greta Thunberg’s objection to ‘business as usual’ alerted the world’s attention on the need to adopt a green new deal in face of budding climate crisis. Her lone strike in 2018 outside the Swedish parliament propelled a global movement for climate justice and is forcing the governments to rethink the carbon footprint.[xliii]
The Holy Prophet (P.B.U.H) was himself a champion of dissent who denounced the Quraish and pagan teachings of 7thcentury Arabia and brought about social change through his teachings, elevated the status of women, prohibited slavery, ensured rights of prisoners of wars, orphans and established an evolved society based on the teachings of Islam in Madinah. For his time, these were revolutionary changes and they were possible because of dissent with the dominant ideology prevalent in pagan Makkah prior to Islam.
Thus, we see that historically, all social change and evolution in the status of men and women, between landlords and peasants, between colonial powers and freedom fighters and between all other oppressed classes and ruling elites has been the result of struggle and conflict, with dissent being the creative and the driving force behind it. If dissent is suppressed, it means that forces in power are not allowing room for growth and advancement and equality and inclusion. To be able to dissent is therefore, the epitome of freedom because where dissent is not free, where dissent results in banishment or punishment, it means that people are not free to object even when their rights are being infringed.
In conclusion then, freedom of expression is often amongst the first victims of authoritarian regimes and ruling elites and its preservation has been a constant struggle. In every era people have risen up to their oppressors to achieve a just and equal world because freedom is inherent in human beings. The cherry-picking of promoting a dominant narrative and suppressing the one in opposition will always meet with dissenting voices in some shape and form propelling and fuelling the challenges to its own prevalence. In this way curbing dissent to maintain status quo ends up creating inherent contradictions leading invariably to the downfall of the ruling ideology and making way for social change. This ‘change’ is what is feared to begin with and like a ‘catch-22’ situation, the authoritarian regimes continue to attack it in covert and overt ways. Over time, the regime may learn more sophisticated ways of realizing control; but the indicator of its prevalence shall remain in the freedom of the dissenter.
___________________________________
* The author acknowledges the support rendered by Dr. Rubina Saigol and Sara Raza for this article.
[i] Jean Jacques Rousseau, The Social Contract and the Discourses (Everyman’s Library, 1993), 181.
[ii] “What is Freedom of Expression”, Freedom Forum Institute, accessed May 12, 2020, https://www.freedomforuminstitute.org/about/faq/what-is-freedom-of-expression/.
[iii] Helen James, “Civil Society and the Duty to Dissent”, The International Journal of Not-For-Profit Law, 13, Issue 3 (June 2011). Available at: https://www.icnl.org/resources/research/ijnl/introduction-4.
[iv] “Freedom of Expression”, History, accessed May 10, 2020, https://www.history.com/topics/united-states-constitution/freedom-of-speech.
[v] “Timeline: A History of Free Speech”, The Guardian, accessed May 10, 2020, https://www.theguardian.com/media/2006/feb/05/religion.news.
[vi] Desiderius Erasmus, The Education of a Christian Prince with the Panegyric for Archduke Philip of Austria, (Cambridge University Press, 1997), 88.
[vii] Robert Balin. “Foreword”. In Freedom of Speech and Society, A Social Approach to Freedom of Expression, Harry Melkonian (Cambria Press, 2012), xii. Available at: https://b-ok.cc/book/2491890/bc2634.
[viii] “English Translation of Magna Carta”, British Library, accessed May 11, 2020, https://www.bl.uk/magna-carta/articles/magna-carta-english-translation.
[ix] “English Bill of Rights”, History, accessed May 10, 2020, https://www.history.com/topics/british-history/english-bill-of-rights.
[x] Ibid
[xi] The Guardian, “Timeline: A History of Free Speech”. Available at: https://www.theguardian.com/media/2006/feb/05/religion.news.
[xii] Art 19, Constitution of Islamic Republic of Pakistan, 1973. Art 19, Constitution of India, 1950, U.S Constitution, amend. 1, Art 39, Constitution of People’s Republic of Bangladesh, 1972, Section 2, Canadian Charter of Rights and Freedom, Constitution Act, 1982.
[xiii] Art 19, Universal Declaration of Human Rights, 1948.
[xiv] Art 19, International Covenant on Civil and Political Rights, 1966.
[xv] Cass Sunstein, Why Societies Need Dissent, (Harvard University Press, 2005). Quoted in Helen James, “Civil Society and the Duty to Dissent”, The International Journal of Not-For-Profit Law, 13, Issue 3 (June 2011). Available at: https://www.icnl.org/resources/research/ijnl/introduction-4.
[xvi] Lord Denning introduced the concept of extending benefits to third parties in his judgements which later were enacted by the Parliament in Privity (Rights of Third Parties Act) 1997.
[xvii] Schenck v. United States, 249 U.S. 47 (1919).
[xviii] Roth v. United States, 354 U.S. 476 (1957).
[xix] E.S v Austria, European Court of Human Rights, 2018. Available at: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22002-12171%22]}
[xx] Various permutations of this quote have been attributed to several people including Abraham Lincoln, Oliver Wendell Holmes, and the American judicial philosopher and civil libertarian and great advocate of free speech Zechariah Chafee Jr. https://quoteinvestigator.com/2011/10/15/liberty-fist-nose/.
[xxi] Rousseau, “The Civil State”, in The Social Contract and the Discourses (Everyman’s Library, 1993), 195.
[xxii] See Article 19, Constitution of Pakistan, 1973.
[xxiii] https://www.samaa.tv/news/pakistan/2020/03/lahore-high-court-disposes-of-petition-to-ban-aurat-march/
[xxiv] https://www.dawn.com/news/1592853/arrest-warrants-issued-for-activist-after-students-rally-in-lahore
[xxv] Sheraz Khan, Pardis Moslemzadeh Tehrani, Mehwish Iftikhar, ‘Impact of PECA-2016 Provisions on Freedom of Speech: A Case of Pakistan’, Journal of Management Info 6(2); 7-11, available at: https://www.researchgate.net/publication/334962173_Impact_of_PECA-2016_Provisions_on_Freedom_of_Speech_A_Case_of_Pakistan.
See also, Waqar Gillani, ‘PECA and Defamation Suits’, The News on Sunday. Available at: https://www.thenews.com.pk/tns/detail/723451-peca-and-defamation-suits
[xxvi] “Socrates”, History, accessed May 9, 2020. https://www.history.com/topics/ancient-history/socrates.
[xxvii] “Inquisition”, History, accessed May 9, 2020. https://www.history.com/topics/religion/inquisition.
[xxviii] J.W. Fiegenbaum, “Al-Hallaj”, Encyclopaedia of Britannica, accessed May 12, 2020. https://www.britannica.com/biography/al-Hallaj.
[xxix] Aziz Ahmed, “Pakistan’s First Obscenity Trial”, Medium, accessed May 12 , 2020. https://medium.com/@azizakhmad/pakistans-first-obscenity-trial-244d7a029890.
[xxx] Estelle Dryland. "Faiz Ahmed Faiz and The Rawalpindi Conspiracy Case." Journal of South Asian Literature 27, no. 2 (1992): 175-85. Accessed May 12, 2020. www.jstor.org/stable/40874124.
[xxxi] Tehreem Azeem, “Pakistan’s Women Marched for Their Rights. Then the Backlash Came. What made the Aurat March controversial?”, The Diplomat, accessed May 12, 2020. https://thediplomat.com/2019/03/pakistans-women-marched-for-their-rights-then-the-backlash-came/.
[xxxii] Douglas O. Linder, “The Trial of Socrates”, Famous Trials, accessed on May 10, 2020. http://www.famous-trials.com/socrates/833-home.
[xxxiii] “Rosa Parks”, History, accessed on May 11, 2020. https://www.history.com/topics/black-history/rosa-parks.
[xxxiv] Editorial, Dawn, accessed May 12, 2020. https://www.dawn.com/news/1479487.
[xxxv] Rosa Luxemburg, “The Problem of Dictatorship”, in The Russian Revolution and Leninism or Marxism, (The University of Michigan Press, 1961), 69.
[xxxvi] Sanjay Hegde, “No Freedom without Dissent”, The Hindu, March 2016, accessed May 11, 2020. https://www.thehindu.com/opinion/lead/No-freedom-without-dissent/article14135235.ece.
[xxxvii] “Women’s Suffrage”, History, accessed May 11, 2020. https://www.history.com/topics/womens-history/the-fight-for-womens-suffrage.
[xxxviii] Article 8, International Covenant on Civil and Political Rights, 1966.
[xxxix] Universal Declaration of Human Rights, 1948, International Covenant on Civil and Political Rights 1966, UN Convention on Elimination of all forms of Racial Discrimination, 1965, UN Convention on Elimination of Discrimination against Women, 1979.
[xl] Mazhar Abbas, “Women and Peasant Resistance in Colonial Sindh: A Case Study of Shaheed Mai Bakhtawar”, Second Ireland India Conference on "South Asia", at Ireland India Institute, Dublin City University, Dublin, Ireland, April 2018. Available at: https://www.researchgate.net/publication/325853714_Women_and_Peasant_Resistance_in_Colonial_Sindh_A_Case_Study_of_Shaheed_Mai_Bakhtawar.
[xli] “Russian Revolution”, History, accessed May 11, 2020. https://www.history.com/topics/russia/russian-revolution.
[xlii] Sahar Shafqat, “Civil Society and the Lawyers’ Movement of Pakistan”, (Cambridge University Press, Vol 3, Issue 3, 2018), 889-914.
[xliii] Kate Aronoff, “How Greta Thunberg’s Lone Strike Against Climate Change Became a Global Movement”, Rolling Stones, accessed May 12, 2020. https://www.rollingstone.com/politics/politics-features/greta-thunberg-fridays-for-future-climate-change-800675/.