‘Whatever the cost’

On Friday, in the midst of useless political frenzy concerning the upcoming PDM ‘power show’ in Multan, Rana Sanauallah (one of the closest confidants of Maryam Nawaz) was questioned about the possibility of delaying the planned ‘jalsa’, in light of unprecedented Covid-19 numbers. His response, televised live across all media channels, disclosed the deep malaise and hypocrisy of our partisan politics; he said ‘jo bhiqeemat ho, jalsa ho karrahayga’. No matter what the ‘cost’, PDM will hold its political rally.
Let’s pause for a moment to take stalk of what this ‘policy statement’ really means. ‘No matter what the cost’, in effect, means ‘no matter how many people die’, the leadership of PDM will continue its agenda of spuing partisan hatred against the government and State institutions of Pakistan. Put another way, the lives and safety of people – of their own political supporters – is entirely irrelevant to the leadership of PDM, so long as they get their moment in the spotlight to defend the personal fiefdoms of Sharif and Zardari family.
The liberal constitutional argument in support of PDM’s jalsa, is soporific at best. Does the PDM leadership, under our constitution, have the right to hold their gathering? A narrow interpretation of the relevant constitutional provisions would answer this question in the affirmative. Article 15 of our Constitution grants “every citizen” the right to “remain in” and “enter and move freely throughout Pakistan”. Furthermore, Article 16 of the Constitution grants “every citizen” the “right to assemble peacefully”, subject to reasonable restrictions imposed by law, for the purposes of “public order”. And Article 17 of the Constitution grants “every citizen”, inter alia, the “right to form associations”, subject to “lawful restrictions imposed in the interest of sovereignty or integrity of Pakistan, public order or morality”. A combined reading of these constitutional provisions grants every political party, and its members, the right to peacefully hold a public gathering, in pursuit of their partisan ideology.
However, that’s only half the story. The real question is whether the rights of political movement and assembly, under Article 15, 16 and 17 of the Constitution, can be exercised while putting in peril the lives of thousands of people, through the spread of Covid-19.
To answer this question, a balancing exercise must be conducted between the PDM’s constitutional right to protest on the one hand, and society’s right to be protected against the spread of Covid-19, on the other. This idea of ‘constitutional proportionality’, which now forms part of our domestic jurisprudence (DG Khan Cement vs. Federation of Pakistan etc., PLD 2013 Lhr 693), traces back to the Canadian case of R v. Oakes [1986 1 SCR 103], which was later followed in the Israeli case of Beit Sourik Village (HCJ 2056/04). In essence, this ark of jurisprudence establishes that enforcement of fundamental rights by any individual, or a group of individuals, can only be done if the following four conditions are met: (i) the object to be pursued is a ‘legitimate purpose’; (ii) the steps being taken have a ‘rational connection’ with the legitimate object; (iii) that there are no ‘milder means’ to achieve the said legitimate purpose; and (iv) a ‘balancing exercise’ would then ensue to determine whether the exercise of fundamental rights can be permitted under law.
Let us assess the planned PDM jalsa in light of this established test of constitutional proportionality.
What is the ‘legitimate purpose’ of the scheduled PDM political rally? Will the leadership of PDM be expressing a particular grievance with the State (as was the case in Tahir ulQadri’s long march for the martyrs of Model Town)? Absolutely not. The ‘grievance’ or ‘purpose’ of the PDM leadership is threefold: (i) to avoid prosecution in, and seek relief against, the ongoing accountability cases concerning Sharif and Zardari family; (ii) to overthrow the elected government of PTI, and to establish their own instead; and (iii) to malign State institutions, in order to exert pressure for the fulfilment of the aforementioned goals.
Do any of these sounds ‘legitimate’? Put another way, are any of these goals related to policies concerning the citizenry of Pakistan? Will PDM be unveiling an alternative (better) education policy? Do they have a mechanism to control the spread of Covid-19? Will the jalsa in Multan be discussing alternatives for a better public health system? Will the PDM leadership be presenting a plan for improvement of balance of trade? Will they present a system for paying back our national debt, or reviving the Pakistan Steel Mill, or reinvigorating Pakistan Railways, or turning around Pakistan International Airlines? Or will the PDM jalsa, instead, be a mindless mudslinging contest, designed only to satisfy the egos of a few? If so, is this a ‘legitimate purpose’ for gathering people during a pandemic?
Assuming that pursuit of personal political goals, and overthrowing a democratically elected government, is a ‘legitimate purpose’, amidst corona outbreak, it must be asked whether achievement of such purpose has a ‘rational connection’ with the upcoming jalsa. Is this jalsa, or others like it – which risk the spread of Covid-19 – the only way for PDM leadership to achieve their stated political goals? Re-phrasing the question, will this jalsa achieve the objectives of PDM’s leadership by overthrowing the government and dismissing all pending cases? For overthrowing the government, can the PDM political parties not simply render their resignations in the respective legislative assemblies – a move that will not risk the spread of Covid-19? Can they not find some parliamentary or judicial way of seeking relief in their ongoing accountability cases? Is there really a ‘rational connection’ between this jalsa and PDM’s political objectives?
For a moment, let’s imagine that there is a ‘rational connection’ between the PDM jalsa and their political demands. Next: are there any ‘milder means’ of achieving these objectives? The most that this jalsa would do is to:(i) demonstrate PDM’s support in the Multan region; and (ii) provide a captive audience to a ticker tape parade of PDM speakers. If we all concede that PDM (collectively) has enough political support in Multan, can the speeches not be made electronically, without gathering a hotspot of Covid-19? Isn’t an electronic gathering of political leaders (which has become the global norm during Covid-19) not a ‘milder’ way of achieving the same objectives? When Nawaz Sharif or Bilawal Zardari addressed the jalsas electronically, were their speeches any less ‘effective’?
If the aforementioned test fails, the principles of constitutional proportionality require that the public right to be protected against spread of Covid-19 be ‘preferred’ over PDM’s right to hold a political rally.
In this regard, there can be no cavil with the fact that this jalsa (like all other public gatherings) will facilitate the spread of Covid-19. Maybe the people in attendance (mostly young) get through the symptoms without much fuss. But the attendees will all go back to their respective homes, meet elderly (susceptible) population, and risk their infection as well as loss of life.
Does Maryam, or Bilawal, or Fazl-ur-Rehman care about this? All indications point to the fact that they do not. And this lack of care for the people, especially at the cost of personal political ambition, is in line with PDM’s overall political narrative, which focuses almost exclusively on achieving political power – whatever the cost.
In all likelihood, the jalsa in Multan will take place. And, as a natural corollary, it may become a hotspot for spread of Covid-19. This is just the political culture and reality that we live in. Be that as it may, at the very least, we should speak law to politics. Even if we can’t, for now, muster the courage to speak truth to power.

The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be contacted at saad@post.harvard.edu. Follow him on Twitter

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