| EKUSHEY SPECIAL |
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On tyranny and terror: freedom of thought and choice of speech
by Salimullah Khan  Article 39(2), however, distinguishes freedoms of ‘speech and expression’ and of ‘the press’ as only alienable freedoms. ‘Speech and expression’ is, as a grammatical substantive, is perhaps taken as inseparable but ‘the press’ is again quietly separated from that substance, before assigning pre-eminence of alienability to both. To illustrate what freedom of ‘thought and conscience’ might mean, a wise lawyer has claimed that no action lies against an individual for whatsoever she has written in her diary. Writing in your own diary is not an act of ‘speech or expression’. This is as far as lawyerly wisdom goes. But as soon as an individual would pretend to express her ‘thought and conscience’ in words, or in such an act as putting a seal on a ballot paper, it would no more be thought a matter of ‘thought and conscience’ but would belong to the domain of ‘speech and expression’, or if you press it hard, it may even to purgatory of ‘the press’. In Abdus Samad Azad v Bangladesh (44 DLR 354) the High Court Division rejects the contention that the open ballot system for presidential election violates freedom of ‘thought and conscience’. Freedom of ‘speech and expression’ comes to play its role at that high watermark. This pretension has been serviceable to the liberal bourgeoisie of the West in consolidating it rule of law in the era of early and high capitalism. In the early era, the accent was on freedom of ‘thought and conscience’. For it was necessary to transcend a kind of paternalism signified by the absolutist state in the western world, as in the era of say Louis XIV in France. In the era of high or liberal capitalism the accent fell more on separating the freedom of ‘speech and expression’ from that freedom of ‘thought and conscience’. For this is the only way which permits you both eat your cake and keep it. That it is arbitrary to separate ‘speech and expression’ from ‘thought and conscience’ is denied in theory is apparent. How, one however asks, is the distinction sustainable in practice? And, one asks not vainly, is it sustainable at all? The bourgeoisie, historically speaking, has played a most progressive role in stressing freedom of ‘thought and conscience’. Why must, as Johnny come lately in the game stresses, freedom of ‘speech and expression’ find its place in the other purgatory of ‘the interest of the security of the State’ etc, in place of that paradise of human nature, the civil society so-called? Article 39(2) guarantees the freedom of ‘speech and expression,’ one recalls, subject to many a limitation. Law does impose many a restriction on the exercise of this right in the interest of the security of the state, friendly relation with foreign states, public order, decency or morality, or in relation to contempt of the court, defamation or incitement to an offence. No wonder, suicide, in this text would find a place for itself as an offence. It too is, for sure, an act of ‘speech and expression’. Let us admit, for speech’s sake, that freedom of suicide, like freedom of ‘speech and expression’ is subject to restrictions. The question, however, is how is it possible to speak of some freedom of ‘thought and conscience’ without also speaking of some freedom of ‘speech and expression’? Is it not a type of ‘forced choice’ as we are going to speak about soon in the remainder of this essay? To put the point more bluntly, I am arguing that there can be no freedom of ‘thought and conscience’ without also a freedom of ‘speech and expression’. But, must I add as an abundant caution, that its converse does not follow? It is my contention that as capitalism on a world scale, not only a down and earth peripheral society of our kind, enters its late capitalist state, restrictions on freedom of ‘speech and expression’ will express itself more and more as a restriction on the freedom of ‘thought and conscience’. This can be illustrated by the paradox of ‘forced choice,’ as has been done by the late Jacques Lacan, Europe’s major Freudian psychoanalyst. In such a ‘Choice’ you always end up choosing something that has already been chosen for you. They always promise (if not a promise, then what is the meaning of a ‘guarantee’?) you the freedom of ‘thought and conscience,’ but they cannot guarantee you a freedom of ‘speech and expression’, but would not admit that they cannot guarantee you a freedom of ‘thought and conscience’. The possibility of choosing defines the essential dimension of subjectivity. And unless you are subject in the psychoanalytic sense you are not a citizen. With no possibility of choosing you lose your subjectivity, thus a process of ‘de-subjectivation’ occurs. Subjects who are not subjects cannot choose. The master always makes the choice for them. This amounts to tyranny. But when your master forces you to choose, when you have no other choice but to choose from the given alternatives it is a forced choice. This is the veritable definition of terror. It goes in the opposite direction of tyranny. Modern capitalism, especially late capitalism, has substituted terror for tyranny by instituting forced choice in place of the master choosing for the subject. This, in brief, is the burden of this short essay. I want to argue, in brief, that when we are forced to choose, that is to say when we are subjected to the imperative that we subjectivise ourselves we are in the face of the ultimate act of terror, the most radical terror. This has sometimes been called, albeit improperly, the post-modern condition. I will argue that the condition is inherent in the gonads of modernity, in the high origins of the secular, liberal, and modern state. The point is not only that we are allowed to choose, between say ‘thought’ and ‘speech’ or between ‘conscience’ and ‘expression’ but that we must do so, and thus demonstrate that we are free subjects, whether we want to or not. Alenka Zupancic, a Slovenian thinker, illustrates this with reference to Alan Pakula’s film Sophie’s Choice. In the famous traumatic scene Sophie (played by Meryl Streep) arrives at Auschwitz with her two children, a girl and a boy. A German officer approaches her and asks her if she is a communist, to which she responds that she is neither a communist nor Jewish, but Polish and Catholic. At this moment there is a ‘perverse turn,’ as Alenka Zupancic calls it, in the action. The German says to her: You can keep one of your two children – the other is going to the gas chamber; and as you are neither a Jew nor a communist, but a Catholic etc, that is to say a ‘subject’, I leave the choice to you. Choose one of your two children! If you do not choose we will kill them both. At first Sophie refuses to choose, despite the repeated commands of the officer. But finally, just as he is giving the order for both children to be taken away and killed, Sophie makes her choice: she chooses the boy, and the soldiers take the girl away. The scene closes with a close-up of Sophie, her face twisted in a grimace of a silent scream, while at the same time we hear the cries of the girl off-screen, as if they came from her mother’s mouth. There is a strong homology, I would argue, between this situation and the situation portrayed in Article 39. It is the realm between two deaths. If you choose freedom of conscience, do not speak. If you speak, do not speak your conscience. If you speak, do not think; if you think, do not speak. This radical disjunction lies at the root of modern subjectivity, at the foundation of modernity. But it gets manifested at the gateways of Auschwitz, or for that matter at the approaches to the third world, formerly so-called. Recall Rene Descartes or what he clamed to be a case: I think therefore I am. What turns out now is more like a converse. I do not think, therefore I am. Or, if you like, I think therefore I am not. Jacques Lacan puts it better, I think where I am not, I, therefore, don’t think where I am. Thought does not speak, and speech doesn’t think either. Friends have rightly chastised me for not writing a column for a newspaper or two. Thank God, they don’t force me to choose. It has already been written for me! I love tyranny and would for one not swap it for terror. Reference Mahmudul Islam, Constitutional Law of Bangladesh, 2nd ed. (Dhaka: Mullick Brothers, 2003). Alenka Zupancic, Ethics of the Real: Kant. Lacan (London: Verso, 2000). Salimullah Khan teaches law at Stamford University, Bangladesh. salim_khan@yahoo.com |
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