Law and society

When HLA Hart described his magnum opus The Concept of Law as ‘an essay in descriptive sociology’ he was articulating a profound idea which we often forget; the law does not exist in a vacuum from society. There is no closeted space that separates the law from policy.
Last week, I had lamented a court ruling that ordered blocking access to the social networking site Facebook. The discussions that I have had in the past week reminded me how easily we, the general public, shirk responsibility regarding court decisions that we seem to disagree with. Yet, court rulings reiterate Hart’s point about placing the law in its proper social context.
Related to this is the fact that courts generally tend to rule in perceived alignment with the public sentiment. Of course once we concede that courts do not exist in a vacuum, the debate shifts to the questions of real versus perceived independence of judges of superior courts from the popular sentiment, i.e. if the courts are not independent of majoritarian pressures then how can we expect them to uphold minority rights? This goes to the very heart of the ‘counter-majoritarian’ aspect that is often used to both support and criticise judicial review. I would contend that there is a critical mass of public opinion which judges tend to look for when ruling on controversial matters.
Of course, the perception of judges may not have any empirical basis, i.e. judges cannot carry out a study of how many people actually support a position. But they can still try and get a sense of the public mood from newspapers, television debates etc. And that is where public discourse in times of great constitutional controversies matters. That is where the silent majority can and must speak up and make itself heard against the minority in most countries that represents extreme positions that call for curtailment of fundamental rights and suppression of minorities’ rights.
In Pakistan, we have ceded that space for public discourse to elements that employ the threat or use of violence in support of their positions. When a court in Pakistan entertains a constitutional petition and blocks access to websites, and thereby adversely affects the freedom of expression and information of Pakistani citizens, it can do so with a confident belief that the public will accept this. In fact, the courts in such a case are merely articulating a position that you and I have already accepted, i.e. the few with the extremist rhetoric of religion/nationalism on their side can monopolise any issue they choose and have their argument adopted as the law of the land. This happens time and again without any real protest, except a smattering of tweets, facebook petitions or a hundred ‘concerned citizens’ holding a vigil in a posh locality. Our public discourse has, therefore, been hijacked. Each time we see the courts ordering restrictions on our freedoms, we must realise that we have strengthened the dogmatic positions of the violent few.
Unless there is a critical mass that rises up, and is willing to brave some harm along with uncomfortable questions, this space for public discourse will remain hijacked. This poses both immediate and long-term threats. If ideas cannot flourish freely then repression becomes a way of life and most people will accept that the benefit of staying silent exceeds the cost of speaking out. Indeed this is what seems to have led us till here. But speak out we must because on that rests the freedom that is most essential to a human being — the freedom to think for herself and to be able to voice an opinion without fear of harm.
It is the suffocation of free thought and ideas that killed Salmaan Taseer and it is the same hijacking of freedom that declares Ahmadis as second class-citizens. It is this hijacking of the public discourse on controversial issues that has now allowed certain organisations to issue a call for a reward for anyone who kills the Judge who sentenced Mumtaz Qadri to death.
If a country is the ‘motherland’ of its citizens, then many citizens of Pakistan (based on religion, ethnic status) get treated as the step-children of a mother who caves in to the violent cries of those who threaten violence. But the motherland herself is powerless. There are those among her children who are privileged in terms of education and opportunity but who choose to look away. But it is time for us to fight back before it is too late. Through arguments, whether we make them in articles, classrooms or court cases we can dent the stranglehold that denies the rights of so many.
Arguments matter, regardless of where we make them — as long as we make them with consistency and conviction, they will travel and inspire others to argue. The decision of a black parent to send his child to an all-white school in the segregated South of the US in the 1950s led to a court case that ended segregation throughout the country. It was messy, it was uncomfortable, it was violent and it had its doubters (and still does) but the argument travelled like a wave and it changed history and the constitutional landscape of a country. Plus, there was a critical mass of people that strengthened the court’s stance.
There is nothing remarkable about adopting an argument and sticking to it — except conviction. Once there are enough among us who are willing to sacrifice threats to person and reputation, we will have a critical mass that no court or government in Pakistan can ignore. It will be a long haul but the time to wrest back and assert our freedoms is now. The fate of generations depends on us.

The writer is a Barrister and an Advocate of the High Courts. He has a special interest in Antitrust law and is currently pursuing an LLM at a law school in Cambridge, Massachusetts.