Bloggers v. Thanedars

As many people know, Maya Khan used to be employed by Samaa TVas the host of a show called “Subah Saveray Maya kay saath”. Last week, she and about 10-15 other women descended upon a park in Karachi, cameraman in tow, after which Ms Khan proceeded to first approach and then harangue ‘couples’, the term ‘couple’ being loosely interpreted as any woman either sitting or walking within five feet of an adult male.

Ms Khan’s theatrics set off a veritable firestorm in Pakistan’s burgeoning social media. A number of bloggers wrote furious letters to the world at large, five thousand people signed an online petition to Zafar Siddiqui, the Chief Executive of Samaa TV, and a series of very agitated columns appeared in the English media. In my own case, I was angry enough to offer my legal services for free to anyone desirous of challenging Ms Khan’s theatrics in court, an offer accepted first by Nighat Dad at Bytes for All, and then by other organisations.

But just as the final touches were being put on the petition, news arrived that Ms Khan’s employment with Samaa had been terminated. Given that Marvi Sirmed and some other brave spirits had also been agitating within Pemra for action, the issue was whether there was any point in proceeding. After some discussion, the general conclusion that — at least at this stage — there was little to be gained from flogging a dead horse.

Let me make it clear though that this issue is not forgotten. Our media explosion has so far not been accompanied with any real sense of limitation or propriety. In some ways, this is exhilarating. But in some ways, as shown by the Maya Khan episode, there needs to be some minimal sense of propriety, otherwise the media winds up becoming a tool for hypocrisy and bigotry.

From a legal perspective, there are also serious issues that need to be examined. Where, after all, does the right to privacy come from and is it indeed protected by our Constitution?

To begin with, there is no doubt that the Constitution recognises a fundamental right to privacy. In Presidential Reference No. 2 of 2005, PLD 2005 SC 873 a nine-member bench of the Supreme Court had declared the Hisba Bill passed by the NWFP Assembly as violative of the fundamental right of privacy enshrined in Article 9 (Right to Life) and Article 14 (Right to Dignity of Man).

The real questions that arose out of the Maya Khan episode were thus more complex. What are the contours of the right to privacy? And, how is that right to be balanced against the freedom of the press and Pakistan’s ostensible status as an Islamic country?

Our fundamental argument was based on Article 4 which says that every person has a right to be treated in accordance with law. The applicability of this norm to young couples loitering in a park may seem odd but we were trying to invoke the reverse aspect of Article 4, that is the right of every person to be left alone by others except to the extent authorised by law. In short, our argument was that it was Maya Khan’s burden to show the basis on which she was harassing people, not the burden of those being hounded out of a park to show the legal basis for their being allowed to walk together in public.

In terms of the balance between privacy rights and media rights, the short answer is that there is no clear dividing line. Instead, what is ‘appropriate’ depends considerably on how society responds to media intrusion into the private sphere. However, we were trying to establish three basic points.

The first point is that privacy rights differ depending upon the people involved. The media thus may have a legitimate interest in poking into the private lives of public individuals — note, “may” — but that certainly does not justify the media intruding into the private lives of entirely private individuals. None of the young men and women taking a walk in the park was inviting media or public scrutiny and none of them were candidates for public office. Maya Khan’s intrusion was thus unjustified.

The second point that we were trying to establish is that irrespective of where the line between private and public is to be drawn, the Maya Khan episode was certainly well on the wrong side of any line a reasonable person would draw. And it is in this context that we wanted to take advantage of public anger to show that Pakistani society does not support vigilante action in the private domain.

Our third point was in relation to the religious angle. In this context, our point was simple: the Supreme Court had already stopped a provincial government from setting up a ‘morality police’. If so, how could individual television personalities become self-appointed ‘thanedars-at-large’?

Looking back on the affair, I am actually happier that we did not have to file a petition. The firm action taken by Samaa against Maya Khan has caused more ripples in the media world than any judgment could have done. Let’s be honest: television anchors contemplating similar shenanigans are far more likely to be worried about being fired than about becoming the subject matter of Supreme Court petitions.

For media analysts, there is a further point to be noted. Pakistan’s social media world has often been derided by ‘real’ journalists as being just an elitist farce, just like Pakistan’s English print media is routinely scoffed at by Urdu and television journalists as being out of touch. In this case, the outrage was almost entirely confined to Facebook, Twitter and the opinion pages of the English print media. And yet, the force of this outrage was enough to cause a television channel to fire their anchor. This shows that social media is not as disconnected from the ‘real’ Pakistan as ‘real’ journalists like to believe. It also shows that social media is becoming a force to be reckoned with.

Time will tell whether the Maya Khan episode is just another flash in the pan or whether it reflects the first inklings of maturity in our media. Let’s all hope it’s the latter.

Published in The Express Tribune, January 31^st, 2012.

The Abu Drubbing of the British

At about 5 pm this past Saturday afternoon, northbound traffic on the Lahore-Islamabad motorway was flowing freely. Eagle-eyed motorists just about to enter the Salt Range though would have spied, if they had been so inclined, a dark-green Honda pulled over on the verge, its lights blinking to warn passing cars of the fool doing an impromptu bhangra on the roadside.

 

That fool, dear reader, was yours truly. Like all of my countrymen at that particular moment, I was celebrating our pasting of the English cricket team.

 

Even at the best of times, it is difficult to explain to outsiders the precise extent of the joy which a Pakistani win produces. And in this particular case, there was enough history and subtext to keep a whole passel of Freudians happy.

 

Start with the fact that the match was against the English, our former colonial masters; indeed, the very people who introduced us to the game of cricket. Now add to the pupil’s joy at beating the master, the fact that Pakistan and England’s particular history in relation to cricket contains enough snobbery, residual arrogance and false allegations of cheating on the part of the Poms to leave us permanently resentful. Then add to this poisonous history, the fact that a couple of years ago, three young Pakistanis were indeed caught cheating at cricket while in England, those three later becoming the first professional crickets to be sentenced to jail for spot-fixing. On top of all this, add the final fact that Pakistanis view national success at sport as somehow directly justifying the events of 1947, as if thumping the lalas and the goras at cricket validates the deaths of the one million innocents who died during Partition.

 

Even if you get all of that, one final ingredient would still be missing. That final part of the puzzle comes from the misery heaped upon us by our current crop of leaders, as vile and as corrupt a bunch of people as ever set foot on this planet. Put it all together and the average Pakistani finds little reason to smile while even the fortunate Pakistani is constantly required to justify to himself, his continued presence in this country. What keeps people going then is an atavistic faith, a belief that better times are around the corner, that we are better than this and that we could show the world this, if only we had better leaders.

 

Beating England in this Test series thus ticks all the right boxes. It validates us as a nation. It allows us to thumb our nose at the goras and accuse them of whining. It allows us to escape the shame and the stigma of the spot-fixing convictions. And it allows us to believe that we have not failed but that we have been failed by our leaders, because if we were properly led, we too would be gloriously triumphant like Misbah and his men.

 

Now, if you will excuse me, I’m going back to dancing.

Memogate redux

I’m not generally a fan of sequels but my column from a week ago regarding the Supreme Court’s ruling on memogate has raised enough queries (and hackles) that a second shot is in order.
My previous column has been criticised [especially by Asad Jamal, “Not a tantrum, sir”, January 6] on two main grounds: first, that my legal analysis was flawed; and, second, that in our current circumstances, focusing on legal issues was like missing the forest for the trees.

Let me start with the legal issues.

I have been criticised for arguing that the fundamental rights prong of Article 184(3) has been diluted beyond redemption on the basis that the Supreme Court has no jurisdiction to ignore express provisions. Secondly, it has been argued that the memo deals with non-justiciable issues of national security and foreign affairs. Finally, people have argued that the Supreme Court cannot appoint a judicial commission when a separate Parliamentary Commission has also been set up.

To begin with, it needs to be understood that no text — and especially no constitutional text — exists in a vacuum: instead, such texts exist and hold meaning within a larger body of interpretive works.

For example, Article 199 says that a writ petition will only be maintainable if “no other adequate remedy” is available. This requirement has never been interpreted literally but has been broadly interpreted over the past few decades so that the superior judiciary can intervene essentially whenever it feels like it.

The same process of judicial interpretation has happened in the context of Article 184(3) so that what constitutes “enforcement of fundamental rights” has become more and more broadly interpreted. Since 2005 — i.e. when the current Chief Justice took office — this expansion of public interest litigation has reached new bounds. As my learned friend Asad Jamal has noted, I am not a big fan of this development. But as a lawyer, I do not have the option of turning a blind eye to twenty plus years of consistent jurisprudence.

The other law points are easier to deal with. Take, for example, the issue of non-justiciability. So far as I can see, the memogate ruling does not decide any question of national security or foreign relations: the Court only directed the formation of a commission to investigate a possible crime. Had Asma Jahangir taken the position that no crime had been committed even if the memo was genuine, the position would have been different. But in this case, she expressly conceded that “if the involvement of her client in writing the memo was proved, it constituted a criminal case against him”.

The final law point relates to the overlap between the judiciary and parliament. The simple answer here is that parliament and the judiciary have mutually exclusive jurisdictional realms. Parliament is the only body that can decide whether a president should be impeached. But the judiciary is the only body that can decide whether a person is to be convicted. If the judiciary was claiming the right to impeach the president, I might understand the criticism. But at present, it seems as if the PPP’s lawyers are claiming that only the parliament can investigate any crime if it is related to a potential impeachment: at least from my perspective, that claim seems invalid.

A more practical criticism is that if the judicial commission comes to the conclusion that Husain Haqqani has committed a crime, it will be very difficult for any subordinate judge to disagree. Asma’s view is, therefore, that the executive branch should carry out the investigation as part of its regular duties.

I think that there is some validity to this line of argument. However, the problem here is that not only does this case involve extremely sensitive issues but it also implicates the head of the executive branch. In such circumstances, asking the executive to handle the investigation means asking the executive to investigate itself. The standard option — at least in the US — is to have such investigations handled via an independent counsel, as was done in the Watergate case (for Nixon) and in the case of the Whitewater scandal (for Bill Clinton).

Leaving aside theory, let me ask a simple question: given the stakes, how is it contrary to the national interest for the memogate investigation to be handled by three sitting, extremely well-respected judges of the superior courts as opposed to some random low-grade police official? Saying that everybody is equal before the law misses the point. Some cases are clearly more important than others and they do need to be treated more carefully.

I come now to the non-legal criticism. The argument here is that the memogate ruling should be seen not just in legal isolation but in a political context. More specifically, it should be seen in a political context where Pakistan’s ever-resilient establishment is trying once again to undermine the growth of democracy by removing a popularly elected government. The complaint thus is that by intervening in the memogate scandal, the judiciary has sided with the establishment in “a slow motion coup”.

The short answer to this argument is that correlation is not causation. Yes, the establishment does not like Zardari and yes, the judiciary is not too fond of him either; but this does not mean that the judiciary dislikes him because the establishment hates him or even that the judiciary is willing to act as an accomplice in his extra-judicial removal. If anything, the Supreme Court has gone well out of its way to squelch rumours that it is prepared to welcome a military coup. One may also note that there is more to democracy in Pakistan than just the PPP.

For me, at least, the crux of the matter is Asma’s concession that if true, not only did the allegations against Husain Haqqani constitute a crime but that the president was also liable to be impeached.

If the allegations against Husain Haqqani can constitute a crime, then it follows that they must be investigated. If that investigation has the potential to compromise a sitting president, then it follows further that the investigation must meet the highest standards. A commission headed by three sitting high court chief justices may or may not meet those standards. But it certainly has a better chance of doing so than an investigation supervised by our current interior minister.

Published in The Express Tribune, January 10th, 2012.