Not guilty as charged

Two basic questions arise out of Dr Shakil Afridi’s conviction for “waging war” on Pakistan. Is it legal? And, is it sensible? In both cases, the answer is “No.”

Let’s start with the legalities. Afridi was convicted in a secret trial held by the Assistant Political Agent of the Khyber Tribal Agency. So far as I know, no lawyer appeared on behalf of Dr Afridi.

As a citizen of Pakistan, Shakil Afridi has a right to due process, a right that is now expressly stated in the Constitution. It is settled law that access to counsel and trial open to the public are fundamental to the concept of a fair trial. Dr Afridi was also tried by an executive official, as opposed to an independent court, and thereby deprived of his fundamental right of access to justice. His conviction is consequently illegal.

One answer to the due process argument is that fundamental rights are not applicable to the Tribal Areas. Technically, that is incorrect. All citizens of Pakistan have the same rights. What the Constitution explicitly states is that the superior courts may not exercise jurisdiction in relation to the tribal areas, a fact that prevents laws like the Frontier Crimes Regulation from being struck down.

In any event, given that the Osama bin Laden incident occurred in Abbottabad, the real question is why Afridi was being tried in the Tribal Areas. So far as I know, the judicial authorities of the Tribal Areas only have jurisdiction to punish offences committed in the Tribal Areas, not outside. In a nutshell then, Afridi was illegally convicted by an executive official acting in a manner repugnant to centuries of jurisprudence.

Let us move on to the merits. It is not in dispute that Shakil Afridi committed an entirely despicable act by faking a vaccination programme and thereby betrayed his oath as a doctor. However, he was neither charged with that crime nor punished for it: he was charged with “waging war” on Pakistan. As such, the fact that he acted despicably and in conscious breach of the Hippocratic Oath is irrelevant.

What then of the actual charge? Did Shakil Afridi wage war on Pakistan? Not in my opinion.

There has been much critical analysis of Dr Afridi’s actions by a number of people whom I greatly respect. These include my learned friend, Ejaz Haider, the American columnist Glenn Greenwald, and the anonymous geniuses posting at cafepyala.com. In each case, emphasis has been placed on the fact that Dr Afridi knowingly worked for a “foreign” intelligence agency. Greenwald, for example, asked his American readers to consider what would their reaction have been if the US had caught a Cuban-American doctor faking a vaccination campaign in order to assist the Castro regime.

The problem is that there is a world of a difference between a “foreign” intelligence agency and a “hostile” agency. Had Dr Afridi knowingly worked for RAW or Mossad, he would have no defence. But, in this case, Dr Afridi was not working for an enemy country: he was working for the United States, our ally. Indeed, not only does Pakistan proudly proclaim its status as a “major non-Nato ally” but it also openly and publicly collaborates with the US in military matters. Do we really want to say that helping the US fight al Qaeda is the equivalent of waging war on Pakistan? Seriously?

Obviously, the fact that the US and Pakistan are allies is not an omnibus defence against treason charges. However, what the prosecution needed to show was that Afridi’s particular instance of collaboration was tantamount to waging war on Pakistan. But in this case, Afridi helped US agencies kill Osama bin Laden. Does anybody seriously want to argue that killing Bin Laden was the equivalent of waging war against Pakistan? Leaving aside all other arguments, our country had openly and repeatedly identified Osama bin Laden as an enemy. How is helping our avowed ally kill our avowed enemy the equivalent of waging war against Pakistan?

I come now to the sensibility of punishing Dr Afridi. Pakistan is already viewed with grave suspicion in the West as a treacherous ally. Pakistan’s long suffering friends know that this narrative is false; indeed, President Asif Ali Zardari has penned so many op-eds recounting our sacrifices that the “Pakistan itself is a victim of terrorism” line has become a cliché. But countries which are themselves victims of terrorism do not respond to the death of their tormenters by punishing the killers; at least, not if they want to retain any credibility in the eyes of an increasingly sceptical world.

I also don’t think Afridi’s case can be analogised to either Jonathan Pollard or Mordechai Vanunu. In each case, they had sold official secrets in violation of an express law. Each of them was punished because the relevant law said that selling secrets to a friend is as bad as selling secrets to an ally. But the law regarding treason is different: there, the distinction between friend and foe is critical.

Let me end by conceding that Shakil Afridi is indeed an unsympathetic character. But laws are not made for sympathetic characters. A person whom the military hates has been picked up without charge, held without trial for months, tried in secret by an executive official, and punished on charges which wouldn’t survive five minutes before an independent judge. It is not idle fancy to wonder when these developments will be used against the rest of us. These are all old tricks that have been used before.

Mian Nawaz Sharif should remember. When he was being tried in Attock Fort, he had challenged the proceedings on precisely the basis that he deserved an open and fair trial. The Lahore High Court (LHC) in a travesty of a judgment rejected that argument. I remember that judgment: I was one of Mian Sahib’s lawyers.

The tribal areas scam is also old. In 1975, Manzoor Elahi was spirited away by the police from Lahore to tribal areas in Balochistan to ensure he could not be released. The LHC, however, forced the security forces to return Manzoor Elahi back to Lahore and then granted him bail. Till today, the legal community is proud of that judgment.

Shakil Afridi may not deserve our respect, but the laws of Pakistan certainly do.

Published in The Express Tribune, May 29^th, 2012.

In defence of frivolous consumption

On the grand scale of things, frivolous consumption ranks pretty low — i.e., somewhere below the average cabinet member but above child rapists. The mission of today’s column is to tell you that this opprobrium is undeserved: there is nothing inherently wrong with frivolous consumption. And, dear reader, two points before you get agitated. One, read the rest of the column before blowing a fuse. Two, note the word ‘inherently’.
Let us begin by grappling with the concept of ‘frivolity’. After all, one person’s frivolity is another person’s necessity. If you can read this column, then you likely live in an English-speaking world where the object of most magazines is to tempt you into buying what Michael Lewis once famously described as “The New New Thing”. Obviously, not all of the magazine ads are frivolous. At the same time, there is obviously a point beyond which things just stop making sense.
In the particular context of Pakistan, there are three things (amongst many others) that are generally derided as ‘frivolous’: large cars, lavish weddings, kites. In my view, each of those three activities should actually be encouraged.
Let’s start with large cars. A well-optioned Porsche Cayenne Turbo costs in the approximate vicinity of Rs30 million if purchased new. Out of those Rs30 million, more than Rs20 million consists of taxes.
More importantly, a person can only buy a Rs30 million-car if he has a legitimate, disposable income of Rs30 million. And in order to show legitimate disposable after-tax income of Rs30 million, the average Pakistan first needs to show gross earnings of Rs50 million.
If we do the math, the net result is that a Pakistani who buys a new car worth Rs30 million, has first had to pay taxes of Rs40 million. Frankly, if I were the finance minister of Pakistan, I would give a pride of performance award to every poor sod who bought a new Rs30 million car because they would have paid about 80 per cent of their gross earnings in taxes.
Let us now move on to the subject of lavish weddings. In 1997, the federal government introduced a law forbidding the serving of food at weddings (though an exception was made for baraatis). Subsequently, the legal regime was revised to allow the serving of one dish at marriage functions.
My point regarding food at marriage parties isn’t the silliness of a law that flies in the face of deeply-ingrained social instincts or the hypocrisy or the waste of official resources spent in patrolling wedding functions. Instead, my query here is simpler: why would you want to stop people from serving food at weddings?
Food served at weddings is both produced and prepared locally. In other words, the chicken karahi served at a valima features a chicken that was born locally, raised locally, sold locally and turned into a saalan locally. At each step of the way, people made money. Banning or limiting food at weddings is, therefore, the same as banning or limiting local businesses. Why on God’s green earth would anyone ever do that?
The ostensible answer is that people really don’t want to spend so much money on food at weddings but are forced to do so by social pressures. So banning food at weddings is one way of giving relief to the lower classes.
This argument does have some merit. The problem, though, is that people weak enough to be coerced by social pressure into entertaining extravagantly, also get coerced by social pressure into giving lavish dowries and flouting stupid laws. Even to the extent that some people do get relief, the effect is minimal when it comes to the people most guilty of extravagant entertainment because, in their case, food costs account for a small portion of the overall wedding.
I come now to kite flying. Let us leave aside the arguments that kite flying is un-Islamic or that it results in an unacceptable loss of life and instead concentrate on the argument that money spent on kite flying is ‘wasteful’ or “frivolous”. My response here is simple: frivolous for whom?
The bored suburbanite who splurges on kites may well be blowing up his money. At the same time, the person selling the kites to the bored suburbanite is likely to be poor and likely to use his earnings to feed an impoverished family. Where exactly is the frivolity in that?
In effect, the ‘frivolity’ allegation assumes that some expenditures are better than others. More specifically, the assumption is that money spent on kites is inherently undesirable, as if money not blown up on kites would somehow be spent on world peace or curing cancer. This assumption is entirely unjustified because in actual fact money spent on kites is wonderful for the economy. It may come at too high a price in terms of human suffering, but that is a different debate.
Does this mean that any and all limits on consumption are unjustified? Absolutely not.
In his last book, Ill Fares the Land, the late British historian Tony Judt raged passionately and learnedly against the embrace of unfettered capitalism. His argument was that true social prosperity depended on an accepted social contract and that too great a divide between the rich and the poor had the tendency to negate that fundamental unity necessary for the survival of a society.
I agree with what Judt has to say about keeping a balance in society. However, what destroys a society is not the mere inequality between the rich and the poor, but the belief of the poor that that the rich have attained their status by abusing the political system and rigging it in their favour. Tackling the mere display of inequality, therefore, does not reduce the bedrock resentment of the disadvantaged in this society. At the same time, we already have huge economic problems in this society — problems which are not solved by continuously adopting economically stupid policies. Finally, the whole ‘frivolousness’ debate is often used to mask a dogmatic self-righteousness.
There is a middle path out there between the embrace of conspicuous consumption and killjoy puritanism. It’s about time we found it.

Published in The Express Tribune, April 17th, 2012.

Mad dogs and laal topiwallahs

Mad dogs and laal topiwallahs

 

The good thing about a free judiciary is, duh, that it’s free. The bad thing about a free judiciary is that it becomes the refuge of last resort for every idiot with a cause.

 

The latest of these crusaders is one Zaid Hamid, self-described as the “Founding President of an Internationally Recognised Threat Analysis Consultancy and Defence Think Tank.” On March 27, 2012, he announced triumphantly that he had filed a petition in the Supreme Court seeking the death penalty for a number of journalists as well as the South Asian Free Media Association (SAFMA).

 

Mr. Hamid’s basis for seeking the death penalty against eleven different people is his firm belief that they are involved in “nefarious activities,” hence guilty of treason and hence liable to be put to death.

 

More specifically, what the petition says is this: (1) “If the ideology of Pakistan is destroyed, the entire State of Pakistan will then automatically crumbles [sic] and cease to exist; (2) SAFMA is attacking the ideology of Pakistan by “projecting the father of the nation as a secular leader”; (3) In addition, SAFMA is “a covert operation of Indian establishment and RAW”; (4) The Federal Government should lodge an FIR under the High Treason (Act), 1973 so that the various SAFMA members can be prosecuted and punished (presumably with the death penalty); and, (5) the Supreme Court should listen to Mr. Hamid because he is, inter alia, “an internationally known . . . analyst” and because the Jordanian Strategic Study Institute named him as one of the 500 most influential living Muslims.

 

Legally and logically, the petition is rubbish. To begin with, critical analysis will not lead to the physical disintegration of Pakistan. Pakistan has been criticized ever since its birth; it has yet to disappear let alone “automatically crumble.” In any event, we no longer live in a world in which it is possible to wall off all criticism: unless you live in North Korea, those days are over.

 

Secondly, saying that the Quaid was secular is not treasonous. Not only was Jinnah far from being an orthodox Muslim but he explicitly disavowed a purely religious identity for Pakistan in his famous speech to the Constituent Assembly on 11 August 1947.

 

Thirdly, the contention that SAFMA is a covert operation of the Indian secret intelligence services is laughable. If Mr. Hamid knows about SAFMA’s covert status, so too does the ISI. Is Mr. Hamid then accusing the ISI and the Armed Forces of Pakistan of deliberately ignoring an entity that is being funded/guided by RAW? Why is Mr. Hamid taking his suspicions to the Supreme Court rather than to the DG ISI? Is it because the spooks know him to be a moron?

 

Fourthly, inclusion on the list of the 500 most influential living Muslims means nothing. Had Mr. Hamid actually read the introduction to the publication, he would have noticed that the book itself makes it very clear that Islam encompasses a diversity of beliefs and that “influence” is by no means to be confused with rightness.

 

For example, the same publication also lists Mullah Mohammad Omar and Ayman Al Zawahiri as amongst the 500. Should all Pakistanis join Al Qaeda as a consequence of this recognition? I don’t think so.

 

To take another example, the list of 500 includes Mir Shakil ur Rahman, owner of the Jang Group. The Jang Group is one of the main sponsors of the peace initiative called “Aman ki Asha.” The petition filed by Mr. Hamid alleges that the objective of “Aman ki Asha” is to destroy Pakistan. Clearly, the honour of being one of the 500 most influential Muslims is no basis on which to determine the truth or falsity of anything.

 

At this point, the petition in question has yet to be accepted for hearing, let alone fixed. This is because the Supreme Court tends to deal with really stupid petitions by stashing them away in some back corner till everybody involved has either succumbed to old age or lost interest. But is that really good enough?

 

Not in my view. A petition asking that somebody be put to death, no matter how absurd, is still a document on which action can be taken. As we have seen in the Asghar Khan case, petitions can rise from the dead even after decades.

 

More importantly, the accusations being made by Mr. Hamid are no laughing matter. While Pakistan has increasingly adopted freedom of speech as a core value, nobody has sympathy for RAW agents. To accuse somebody of being an Indian agent is therefore a deliberate attempt to short-circuit all critical thinking and instead provoke a violent response.

 

One contrary argument is that SAFMA and the others should sue Mr. Hamid for defamation. Unfortunately, while SAFMA has already filed suit against Mr. Hamid for earlier allegations, the fact is that trials in Pakistan tend to be a joke. By the time any result ever emerges, and by the time the inevitable appeals are adjudicated, the issue and the controversy are long dead. For all that it is worth, we may as well not have a law of defamation.

 

The petition therefore does not deserve to be let alone: instead, it deserves to be dismissed with penal costs. The petition is not only an abuse of judicial process but a deliberate attempt to intimidate every person who does not agree with Mr. Hamid. Indeed, Mr. Hamid has made his intentions very clear, announcing that everybody who is not with him is a “SAFMA snake” whose name will be added to the “list of traitors” and that every word “barked” by such traitors will “become the hanging rope around [their] necks.”

 

So long as this petition remains even theoretically alive, it will continue to poison the intellectual atmosphere of Pakistan. What is at stake here is not just freedom of the press but the freedom of every Pakistani to think critically. It is a freedom that the Supreme Court must defend, if only to put petty bullies like Mr. Hamid in their proper place.