“What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance?”
[Thomas Jefferson to William Stephens Smith, 1787]
There is little doubt that this is a defining moment in Pakistan's history: the will of the people to win their sovereignty within the political structure and to establish the rule of law is being put to the test. The Chief Justice of Pakistan gave strength to the judiciary by refusing to resign following the reference against him. He awakened a nation to its rights as he bore with exemplary dignity the tribulations of illegal detention, and physical manhandling by the police on his way to the Supreme Court. The sounds of tear gas shells punctuate the cry for constitutional rule as lawyers demonstrate on the streets of Lahore, Karachi, Quetta, Islamabad. The journalists bravely defend the right of free expression by continuing to report events and public opinion even as the police launch a violent assault on one of their offices to terrorize them into submission. Each day brings new resistance to governmental excess: On the streets of Pakistan's cities, new heroes emerge in the expression of what Rousseau called the “General Will”. In so doing, the nation is re-discovering itself. The lawyers with their blood, the journalists defiant before the baton and the boot are establishing the values and norms, which are the bedrock of the formal institutions of governance. Thus the terms on which the people of Pakistan will grant legitimacy to a government are being defined. In the ensuing discussion we will examine the concept of legitimacy and its relationship with state and society.
In examining the nature of legitimacy two key questions arise: (i) What justifies political obedience as a lawful obligation? Conversely, what gives to a government the right to rule? (ii) What is the source of the common interest or the General Will on the basis of which a people grant to a government the right to rule?
Let us briefly examine each of these questions. First, as Rousseau has argued (the Geneva Manuscript, the Social Contract) neither time nor force, nor economic power engenders a genuine right to rule to a government, and to the citizens a lawful obligation of compliance. The source of legitimate authority resides in a free covenant . Only such a Social Contract could be based, not on fear disguised as voluntary compliance, but by the sense of common interest, which is manifested in the General Will. Thus the foundation of a state and its political order is the reasoned establishment of a principle of legitimacy. The logic of legitimacy and the embodiment of the General Will in Pakistan as in any other civilized state must surely reside in the Constitution, a Constitution unsullied by the exigencies of dictatorial rule.
In addressing the second question, the essential proposition is that the Social Contract becomes the General Will when it guarantees freedom, the equality of all citizens before the law, and the protection of those human rights, which a particular people deem to be essential to them. This proposition has a vital implication for nationhood: it is in the granting of legitimacy to a state and its political order that a people become a nation. This is because the granting of legitimacy involves the apprehension of the common interest and the exercise of the General Will. It is in exercising the General Will that the people become conscious of the particular values that are essential to them and which articulate their collective identity. Thus the granting of legitimacy by a people simultaneously constitutes the foundation of both state and society .
In the context of the above argument, what then is the significance of the current street protests in Pakistan? It is certainly not ‘an attempt by misguided elements to create lawlessness and disorder' as the government would like to believe. On the contrary, it is a battle for the rule of law and for a political order that seeks the compliance of citizens not through brute force but legitimacy . Consider the issue which sparked the street protests. The issue was not merely the filing of the reference against the Chief Justice of Pakistan by President General Musharraf. On receiving the reference from the government, the President has the legal right, indeed the obligation to file the reference before the Supreme Judicial Council. The issue rather is the treatment of the Chief Justice: First, the unconstitutional ‘summoning' of the CJP to the Army House to appear before a uniformed General Musharraf; second, the unconstitutional suspension of the CJP when he refused to resign; third, the illegal detention of the CJP; fourth, denying him access to lawyers in the initial period; fifth, denying him newspapers, television, computer, telephone and a functioning means of transport; sixth, preventing his children from going to school; and seventh, physically manhandling the CJP and pushing him into a car by the police, when the CJP was walking to the Supreme Court for the first hearing of the Supreme Judicial Council. The issue is that in the government's treatment of the CJP there was both a lack of constitutional authority and impropriety in terms of the norms of a civilized society.
What is happening on the streets of Pakistan is that the people are drawing the line with their blood and guts to say, enough: we will not allow any government henceforth to treat Pakistan's citizens and its institutions outside the framework of law and propriety. In so doing, the people are reaffirming their sovereignty. The violence on the streets signifies a collision between the Will of the People and a government whose actions have put its legitimacy into question. When the people assert the General Will, when individuals get their craniums cracked for what they perceive to be the common interest, the nation is renewed. The best contribution any government can make to strengthen the foundations of state and society is to respect the Will of the People.