The lonely death of the NRO

What then are we left with at the end of the hullabaloo? We are left with a law which has not just been declared unconstitutional so much as it has been paraded around town, facing backwards on a donkey.  We are left with a short order which alarms. And we are left with a president still very much safely ensconced in his palace.

There has much rejoicing at the demise of the NRO. Celebratory banners have been posted, passionate editorials have been written and calls for the resignation of President Zardari have been launched with renewed vigour.

In the middle of all this clamour, reasoned analysis has taken a back seat. But as the din subsides, there are a number of questions which need to be answered before the celebrations can be justified. To begin with, is the NRO judgment truly the landmark it is claimed to be? And secondly, how does the demise of the NRO affect Asif Ali Zardari?

Any detailed analysis of the NRO judgment is difficult at present for the simple reason that there is no detailed judgment on hand, only a short order. Nonetheless, both the proceedings leading up to the short order as well as the text of the short order itself provide cause for concern.

The 17 member bench which heard the NRO petitions was the single largest bench in Pakistan’s entire history, larger even than any of the benches formed to hear the various dissolution of Parliament cases. Given the normal assumption that the size of the bench reflects the magnitude of the issues involved, the very size of the bench made it clear to all and sundry that a “historic” judgment was in the offing.

The proceedings before the bench were – at least on the one day that I witnessed – less than epic. The learned counsel representing the petitioner had self-evidently worked very hard on his case and wanted to present his argument in the context of a broad historical sweep, taking in reconciliation efforts from the fall of Mecca all the way up to South Africa’s Truth and Reconciliation Commission. The bench, however, was in no mood for philosophy. What the judges wanted was simple fare; these are the provisions of the NRO which are unconstitutional and these are the articles of the Constitution which they violate. But that in turn begged a further question: if the matter was as simple as the 17 member bench clearly thought, why have a bench of 17 judges?

The peculiar nature of the proceedings was then exaggerated by the failure of the Federal Government to defend the NRO on the grounds that it had been promulgated by the “previous regime.” Presumably, the thought behind this tactic was to concede an easy victory to a rampant judiciary and try to avoid an embarrassing defeat. In legal terms, the decision was not justified. And in any event, it failed.

The decision not to defend the NRO was unfortunate because (as the saying goes in the Army) one salutes the office, not the man. The same holds true for legislation. The NRO may well have been a misguided and thoroughly unconstitutional piece of legislation but it was, nonetheless, a law duly promulgated by a duly elected president. The Federal Government, therefore, did not have the option of simply abstaining from comment. Instead, it was incumbent upon the Federal Government to have either defended the law or else provided reasoned arguments against its constitutionality. As it was, the decision by the 17 member bench to examine the process by which the Swiss proceedings against Asif Zardari had been terminated panicked the Federation into engaging a learned senior counsel who in turn stunned the court by claiming that the CIA and the GHQ were conspiring against the politically elected leadership, a claim which he subsequently withdrew as being merely his “personal views.”

In terms of actual legal reasoning, there are two main justifications deployed by the short order in support of its conclusion that the NRO is violative of “various constitutional provisions.” The first is that by giving benefits to a class of people involved in corruption cases, “the classification has created a divide amongst ordinary citizens of Pakistan and a class of alleged criminals.” The second is that “in depth examination of the NRO suggests that it has not been promulgated to provide reconciliation on national basis” as compared to the true reconciliation provided, for example, by the 1973 Constitution and that accordingly “promulgation of the NRO seems to be against the national interest.”

While one hesitates to be critical of a 17 member judicial bench, the pronouncement that “the classification has created a divide” is an opinion, not a reasoned analysis based on established legal principles. More dangerously, the statement that the NRO has not, in fact, been promulgated to provide reconciliation suggests that the NRO has been struck down in part on the basis of an assessment that the motives of the legislature were somehow impure or tainted with mala fides. However, there is ample law to the effect that legislative mala fides is not a ground which can be used to strike down a law. That body of law exists because it is generally accepted that the job of the judiciary is not to determine whether legislation is in the “national interest” but only to see whether or not a law is constitutional. Establishing a precedent whereby the judiciary gets to peer into the heart of a legislator and divine his intent is dangerous business. The NRO judgment may have been passed by a 17 member bench in the context of an ordinance but the principle of legislative mala fides, once established, can be applied by any judge to strike down any law, even if passed by both houses of Parliament.

The single most disturbing feature of the NRO verdict though is its pronouncement that the NRO was violative of Article 227. Article 227(1) of the Constitution provides that all existing laws shall be brought in conformity with the Injunctions of Islam. However, the same article also provides that clause (1) of Article 227 shall only be given effect through referral of a matter to the Council of Islamic Ideology, which in turn is only empowered to give an advisory opinion.

The reliance by the Supreme Court on Article 227 to invalidate the NRO is thus problematic both legally and practically. It is problematic legally because it appears to run counter to the text of Article 227 itself and because under the Constitution, it is the Shariat Court which has the exclusive jurisdiction to declare laws to be unIslamic. It is problematic practically because if a 17 member bench of the Supreme Court can strike down a law on the basis that it is unIslamic (and hence unconstitutional), then any judge of any High Court can equally well declare any law to be unconstitutional as being violative of the Injunctions of Islam. The reliance on Article 227 and the Injunctions of Islam is also surprising because following the insertion of Article 2A into the Constitution by General Zia, the Supreme Court made a very determined effort in the 1990s to ensure that legislation could not be struck down by courts (other the Shariat Court) on the grounds of being violative of Islam. If the short order indeed means what it says, then that entire line of caselaw restricting the impact of Article 2A may have been negated.

During the run-up to the NRO verdict, it was clear that popular opposition to the NRO was driven by the perception that Asif Zardari had somehow used the NRO to escape scot free. However, the demise of the NRO does nothing to President Zardari. So far as his criminal cases are concerned, they may now be pending (rather than withdrawn) but they cannot proceed for so long as he is President. The demise of the NRO also does not affect his qualifications as a candidate for President in that he is still not a convict, even if the NRO is deemed never to have been enacted. Yes, the courts may still find him not to be “sagacious, righteous and non-profligate and honest and amen” (as is required by Article 62 of the Constitution) but that option was equally available prior to the demise of the NRO.

What then are we left with at the end of the hullabaloo? We are left with a law which has not just been declared unconstitutional so much as it has been paraded around town, facing backwards on a donkey.  We are left with a short order which alarms. And we are left with a president still very much safely ensconced in his palace.

This column has also been published in today’s edition of the Friday Times.

Bye Bye, Mr. President

I wrote this column back on October 24 but did not print it in DT for several reasons. One was that the matter was sub judice and I did not really want to fall afoul of the judiciary in that regard. The second was that the column was missing a crucial link in that it did not explain how the judiciary would use the NRO case to get rid of the President since technically, the demise of the NRO did not affect the election of the President. Thirdly, I just did not want to be in the firing line for making such a bold prediction (which pusillanimity irked one Ejaz Haider to no end). I am putting it up on this blog now because re-reading it makes me feel very prescient (and very foolish for not printing it earlier).

A steamroller moves slowly. But what does stay in its path tends to get squished extremely flat.

I mention this unremarkable fact because unless something changes in the near future, a steamroller is going to emerge slowly from a large white marble building on Constitution Avenue and start chugging up the hill towards the presidency.

My basis for this prediction is as follows. The NRO has already been presented in Parliament. If it passes, it will get challenged in the Supreme Court. If the law does not pass (and even if it gets struck down), the benefits obtained by various people, including one Asif Ali Zardari, will come up for scrutiny before the Supreme Court. And by all indications, the beneficiaries of the NRO are going to wind up in the same condition as any small animal run over by a steamroller.

I make this fairly bold prediction not because I find the legal arguments against the NRO to be persuasive. I have yet to study the matter in any depth but at least the standard argument used against the NRO – i.e., that it violates the right to equality under Article 25 – is rubbish.

The Article 25 argument against the NRO is that (i) the Constitution requires all people to be treated equally; (ii) the NRO specifically favours politicians; and therefore (iii) the NRO is unconstitutional. The short answer to this is that (i) Article 25 does not prohibit reasonable classification; (ii) politicians are a separate class as can be seen from the fact that their affairs are subject to heightened legal scrutiny; and (iii) differential treatment of politicians is therefore not violative of the right to equality.

There are, of course, other arguments against the NRO as well. For example, one argument is that this law is a legislative judgment, an unacceptable intrusion into the domain of the judiciary. Another argument, which I find attractive, is that it violates the maxim which provides that no man may be a judge in his own cause. Here, a political party is passing a law which benefits most the leaders of that party, and whose disinterested application is dependent entirely on the neutrality of executive appointees subject to the control of that same party.

However, this is not about law. Instead, this is about the outrage felt by a large number of lawyers with respect to the NRO.

Many of us have been taught that emotion and reason should exist in separate chambers, so that the rigour of formal logic does not get polluted by “mere” emotion. This divide (popularized by Descartes) has now been shown through modern neuroscience to be false using studies of people who had suffered from brain injuries which rendered them unemotional but also made them incapable of making decisions. The age-old concept of a judge as a neutral and passive observer making decisions without allowing his own personal biases to intrude is therefore just a myth. Emotion informs logic at every step of the way and there is no such thing as a disinterested judgment.

To come back to my point, the simple fact is that the NRO is not going to survive judicial scrutiny because – as per my highly unscientific surveys –  most of the legal profession looks at the law and feels like vomiting.

This is not a minor matter. When I was a young associate, I returned from one acrimonious hearing and gleefully informed my learned senior that I had left the judge concerned in no doubt as to my poor opinion of his abilities. Rather than be congratulated, I was instead informed by my learned senior that many years ago he had committed the same mistake and that his then senior, the legendary Manzur Qadir, had told him something like the following:

“Young man, judges are often wrong but that is no excuse for talking back. If the judge is 100% wrong, you must say nothing. If the judge is 120% wrong, you must say nothing. Even if he is 150% wrong, you must say nothing. Of course if the judge is 200% wrong and if he then rubs it into your face, well then my son, you would not be a man if you did not respond.”

Unfortunately for Mr. Zardari, the NRO is a matter on which many lawyers are of the opinion that Parliament is 200% wrong, legal subtleties be damned. Whether or not the judiciary shares the view of the bar is yet to be seen. But it does not bode well for the President.

Interestingly enough, my conclusion from this analysis was that if there was indeed an inevitable clash on the NRO coming down the turnpike, the judiciary would be well advised not to faff around with ad hoc pronouncements on sugar prices and instead stick to the straight and narrow. However, as explained by my learned partner in law, the sugar prices hullabaloo has only hurt the judiciary in the eyes of purists like myself: so far as the man on the street is concerned, the sugar crisis hearings have only demonstrated that the judiciary is sticking up for the little guy against an entrenched cartel of crooked politicians.

Let us now therefore put all the bits and pieces together. The NRO will either pass or not pass by November 28^th: either way, the legality of the benefits enjoyed by the President is inevitably going to come up for judicial scrutiny. After the restoration of the Chief Justice, the single most respected institution in Pakistan is the judiciary, whose credibility has only been enhanced (in the eyes of the masses) by the Supreme Court’s handling of the sugar crisis. And at this point, the best guess regarding the judiciary’s attitude leads to the conclusion that the NRO is dead on arrival.

Bye bye, Mr. President.

Judicial activism vs military activism

There is nothing wrong with the argument for judicial activism. Except, unfortunately, that it is an equally good argument for military activism.

Consider the facts. The basic argument behind judicial activism, stripped of its self-congratulatory verbiage, is that the legislature has failed and that it is now up to the judiciary to ride in and save the day. Otherwise, lives will be lost, rights will be negated, poverty will increase and the ship of state will sail over the edge of the world into the great void. In short, what one finds lurking behind judicial activism is just another dressed up version of the doctrine of necessity.

Please note — and this is important — that there is a big difference between judicial activism and active judicialism. When the Supreme Court demanded that the previous regime produce the missing persons, that was not judicial activism: that was the judiciary’s finest hour. When the Supreme Court struck down the privatisation of the Pakistan Steel Mills, that was not judicial activism. But when the Lahore High Court felt compelled to set sugar prices…well, we’ll come to that later.

The obvious question in response to my argument, well, what’s the difference? How do you draw the line between that which is permissible for the judiciary and that which is not?

Well, you don’t. Or more accurately, you can’t. One man’s activism is another man’s conservatism so drawing lines is an exercise in futility. On the other hand, you don’t really need to draw lines to deal with hard cases: all you need to know is which side of the line a particular case falls upon.

My aim here is not to justify or defend any particular line between principle and policy. Instead, my point is that there is a line out there and it is about time that the judiciary and its enthusiasts recognised that unfortunate fact.

Yes, a functional and active judiciary is vital for the health of a country. But a judiciary is only one leg of the tripod that makes up the government. There is also a legislature out there just as there is an executive branch. And if the legislature and the executive don’t know how to do their job, they certainly won’t learn with someone else doing it for them.

At this point in a column, the discerning reader may rightly expect the writer to enlighten him with a few, pithy examples of judicial activism gone awry. Unfortunately, I can’t. The reason for this is that most of my examples involve stuff that is still pending. And making negative comments on pending cases is still punishable as contempt of court.

The absence of available examples, however, only reinforces my point. Take, for example, the setting of sugar prices. At least so far as the short order is concerned, the decision seems to have been based on the desire of the judiciary to ensure the availability of sugar to poor people. Is this a noble aim? Indeed. But is ensuring the availability of cheap sugar within the domain of the judiciary? Well, on that point, there is certainly more than one view available. But thanks to the appeal pending against the decision of the Lahore High Court, we may not mention any of those alternate views.

The theory behind our law of contempt is that public comment on pending cases is undesirable because it can prejudice the fair adjudication of a matter. To some extent, this is a perfectly understandable position. The problem arises when the judiciary ventures into the domain of policy, especially economic policy. What one finds increasingly then is a bizarre situation in which the most unhinged form of populism is entirely unafraid to express itself but all reasonable people keep their opinions to themselves out of a fear of being prosecuted.

As Justice Nasim Hassan Shah once noted in a different context, zubardast maray aur ronay bhi na dey!

This problem is then further exacerbated by the witches’ brew of talking heads and malicious ignorance that characterises our media. It is no secret that our newly liberated Fourth Estate, for the most part, is struggling to make ends meet. At the same time, the simplest television programme to produce is a talk show because it only involves one anchor and a few members of the chatterati, all of whom are only too happy to voice their opinions on TV. Not surprisingly then, the market is rife with “current affairs” programmes in which the gossip du jour is recycled as penetrating insight.

This media climate makes bona fide criticism of the judiciary doubly difficult. In the first place, any would-be critic has to worry about the possibility of contempt proceedings. Second, voicing any opinion that deviates from populist orthodoxy is to ask for trouble, especially if that opinion is based upon the heresy that the learned gentlemen of the superior judiciary are less than superheroes.

Since this column is likely to be misinterpreted, let me make my position absolutely clear. I am not in favour of judicial activism. I am very much in favour of an independent and fearless judiciary which has no hesitation in holding the feet of errant bureaucrats (and ministers and generals) to the flames as and when they transgress the boundaries of the law.

At the same time, our judiciary needs to realise that it is today the beneficiary of an incredible sequence of events which has vested it with more power and more legitimacy than ever before. That windfall may seem like an endless resource but it is not. And if our judiciary does not rapidly learn the difference between wisdom and pandering to the masses, there will come a time when, like many a lottery winner, they too will be left wondering where the good times went.

Ejaz Haider is wrong!

Article 193 of the Constitution provides that high court judges shall be appointed by the chief justice in consultation with the chief justice of Pakistan, the chief justice of the relevant high court and the governor of the province concerned. Each one of those “consultations” requires interpretation.

Thanks to the decision of the Supreme Court in Al Jehad Trust v. Federation of Pakistan (Al Jehad 1), we know that “in consultation with the chief justice of Pakistan” actually means “in accordance with whatever the chief justice recommends”. Thanks to another decision of the Supreme Court called Jehad Trust v. Federation of Pakistan (Al Jehad 2), we also know that “the President” actually means “the President acting in accordance with the advice of the Prime Minister”. And thanks to the current spat between the Governor Punjab and the Chief Minister Punjab, we are about to find out whether consultation with “the Governor” means consultation with the Governor alone or instead means consultation with “the Chief Minister”.

The CM’s men make the following very simple argument in support of their position: Article 105 of the Constitution says that the Governor shall “in the performance of his functions” act on the advice of the Chief Minister. The advice given by the Governor to the President regarding the appointment of judges is the performance of a function. And accordingly, the Governor must act on the advice of the Chief Minister when giving his opinion to the President regarding the appointment of High Court judges. In addition, the CM’s men make the argument that if (as per Al Jehad 2) the President acts on the advice of the Prime Minister in relation to the appointment of judges, it follows logically that in relation to the appointment of judges, the Governor acts on the advice of the Chief Minister.

In response to this, my learned friend Ejaz Haider has put forward a number of arguments which can be summarised as follows. The role of the Governor is not in pari materia to the role of the President because both while appointing Supreme Court judges (under Article 177) and while appointing High Court judges (under Article 193), the President is the initiator of action, that is, a consultor. The Governor, on the other hand, is not an initiator but rather a responder, not a consultor but a consultee.

The legal way of responding to such an argument is to note that this is a distinction without a difference. In simpler words, so what? How does the fact that the Governor is merely a giver of advice (as opposed to a seeker of advice) change the extent of his powers?

The essence of the finding in Al Jehad 2 is that unless the Constitution either explicitly or implicitly provides to the contrary, the President acts on the advice of the Prime Minister. Since there is admittedly no express language in the Constitution providing that the President acts “in his discretion” while appointing judges the real question before the court was whether the appointment of judges was a type of function which inherently required the President to act “in his discretion”. The short answer to that question was, “No”. The Supreme Court thus rejected the argument that the President should act in his discretion because the appointment of judges would otherwise become polluted by “political” concerns.

At least in my view, the exact same logic applies to Governors. Since Article 193 does not explicitly provide that the Governor acts in his discretion, the only defence available to his defenders is that the nature of his function (that is, being consulted with respect to judges) is such that he must act in his discretion. However, that argument stands precluded by Al Jehad 2.

I should note further that while Al Jehad 2 does not itself deal with the role of the Governor, it does approvingly cite a slew of Indian judgements, some of which do explicitly state that the Governor acts on the advice of the Chief Minister while being consulted on judicial appointments. See, for example, Shamsher Singh v. State of Punjab, AIR 1974 SC 2192, 2204 (holding that appointment, dismissal or removal of persons belonging to the judicial service of the state was not a personal or discretionary function of the Governor); Subhesh Sharma v. Union of India, AIR 1991 SC 631, 638 (“The existing scheme of appointment involves a process of consultation with the Chief Justice, the Governor of the State, the Chief Justice of India before the President of India makes the appointment. The involvement of the Governor brings in the Chief Minister…”) (emphasis supplied)

In my off-camera arguments with Mr Haider, he has put forward the argument that the Governor is not really ‘performing a function’ when he gives advice and that the Governor is not acting “in his discretion”. While I have great respect for my learned editor, I am not sure what he means.

In logical terms, the Governor can only act in one of two ways in relation to his official functions: he can either act “in his discretion” or he can act “on advice”. There is no third option. Furthermore, to say that the Governor is not “performing a function” when he advises a president on the appointment of judges is to ignore the obvious. There is a plethora of case law, both Indian and Pakistani, about how important “consultation” is in connection with the appointment of judges. Giving advice regarding the appointment of judges is therefore not just a “function” of the Governor, but one of his more important functions. And if it is conceded that yes indeed, the Governor is “performing a function” while providing advice regarding the appointment of judges, it follows ineluctably that the Governor must perform that function on the advice of the Chief Minister.

The flaw in Mr Haider’s position is further revealed by his generous concession that if the Governor was indeed the appointing authority for judges, it would follow that the appointments would have to be made on the advice of the Chief Minister. To the extent I can understand this argument, it rests on the presumption that the giving of advice in relation to the appointment of judges is merely a de minimis function and nothing to get excited about (as opposed to actually appointing judges). Unfortunately, this argument is negated by the current brawl between the Governor and the Chief Minister. Were this “function” indeed minor, it would not have caused such a rumpus.

An additional argument employed by Mr Haider and others is that “special” overrides “general”, or in other words, that the general provisions of Article 105 (Governor to act on advice etc.) are not applicable to Article 193 (President to consult with Governor etc.). I concede that this is a powerful argument and indeed, it was accepted by the Lahore High Court in M.D. Tahir v. Federal Government, 1989 CLC 1369. However, that judgement was overruled by Al Jehad 2 and is no longer good law (see esp. para 71). Indeed, the Al Jehad 2 judgement itself notes that the author of the M.D. Tahir judgment (Mr Justice Afzal Lone) subsequently backed away from his earlier position regarding presidential discretion.

Still, textual exegesis can only take one so far. The more powerful argument available to Mr Haider (and employed by him) is that there is no precedent of a Chief Minister being consulted with regard to High Court arguments.

I simply refuse to believe that assertion. Since neither he nor I have personally gone through all the files of all the high court judges appointed till date, I think the safer course is to leave the factual argument till conclusively verified. In any event, I think the further point to note is that there have been very few instances in our history of a governor and a chief minister at loggerheads over judicial appointments. Precedent (or the lack thereof) would count for more had governor-CM disputes over judicial appointments been a regular feature of our constitutional history.

The final argument in which I would seek refuge is a more nebulous one. Simply stated, the chief minister of a province is an elected official who enjoys the confidence of a majority of the elected representatives of his province. The governor’s sole qualification for appointment is his ability to please the president. For the elected leader of a province to have no say in the appointment of the superior judiciary of that province is simply grotesque. To insist further that only unelected governors of our titular executive head should be heard merely compounds the insult.

A further aspect of the legitimacy argument pertains to the fact that Pakistan is supposed, at least nominally, to be a federation. In a federation, it is the federating units which are the original sovereign entities and the powers of the federal government are accordingly restricted to those which have been either explicitly or implicitly delegated to it. Obviously, Pakistan is a far cry from the classic conception of a federation. Nonetheless, the fact remains that the Constitution of Pakistan envisages a political structure in which the provinces are not merely subordinate lackeys of the federal government, but have independent and important roles to play.

Even otherwise, it cannot be disputed that a harmonious relationship between the political leadership of a province and its judiciary is one that is crucial to good governance. For the elected head of a political province to be left entirely out of the loop in relation to judicial appointments is therefore contrary to basic norms of democratic governance.

I concede that my “gut feeling” argument can be countered through any number of alternative readings of the Constitution. However, in hard cases like this one, the right answer is not just one which best “fits” the available options but the one which best justifies and honours the text. The appointment of judges is now, more than ever, a serious business with serious consequences. Even to the extent alternate readings are plausible, I believe that a reading of the constitution which gives a greater role to elected officials (as opposed to unelected officials) is to be preferred.

Over to you now, Mr Haider.

What a night!

Over the past two weeks, pundits from around the world have run out of adjectives to describe the Pakistani cricket team. “Unpredictable” was the clear favourite followed by “mercurial”. Then came erratic, impulsive, volatile, fickle, irregular, capricious and surprising.

Yes, we can be all of those things and indeed, we often are. But on the night that it mattered most, we were none of those things. Instead, as one shell-shocked commentator put it, our performance was “clinical, professional and un-Pakistani”.

Cynics may ask why victory in a game, and that too in a format often described as pure chance, matters so much. The average Pakistani is no richer or healthier today than he was yesterday. But that is to miss the point.

Pakistan is a country which, to put it mildly, suffers from a serious conceptual crisis. From the very beginning, we have claimed that we are both democratic and Islamic. And yet we have failed to figure out exactly how those two ideals are to be realised without conflicting with each other.

The fact that Pakistan’s birth was bloody and marked by the death of a million people has only raised the stakes in this game of existential navel-gazing. We cannot be a secular democracy because that would be no different from India, which would in turn mean that a million people died in vain. On the other hand, we cannot be a theocratic state like that desired by the Taliban because that is just not who “we” are.

Who the hell then are “we”? More importantly, is there a “we” out there or are we just kidding ourselves? Are Pakistanis a real people or, as per Ayesha Jalal, Pakistan is what we got stuck with once Jinnah’s bluff got called?

This may well be a circular definition, but “we” are the people who celebrate when Pakistan wins. We are the people who boogie in the streets when Pakistan wins. We are the people who stripped off their shirts and wiggled their extremely undefined bodies to Dil, Dil Pakistan at three in the morning outside Liberty, the same place where the Sri Lankan team was ambushed three months ago. We are the people who danced to forget that black day. We are the people who were happy last night.

The truth is that nations do not spring fully formed from the womb of history. Nations are forged, one event at a time. And in the past two years, we have come a great deal closer to defining ourselves as a people by clarifying both what we want from democracy as well as what it means to be Muslim.

On the democratic front, the grand bargain put forward by Musharraf was this: take the good times economically and put up with army control. That Singapore-style bargain was rejected because people insisted that they wanted it all, that they wanted both good governance and accountability.

The movement started with a reaction to the removal of the chief justice on March 9, 2007, crested with his restoration on July 20, 2007, swelled again with the declaration of emergency on November 3, 2007, surged further with the elections of February 18, 2008 and then reached its final heights with the Long March on March 16, 2009 and the second restoration of the chief justice.

On the Islamic front, developments have been more recent. There has been a groundswell of emotion, first rising in disgust at the tactics of the Taliban, then in reaction to the federal government’s capitulation in Swat and then in sympathy with the plight of the IDPs.

In comparison with the tightly focused demands of the lawyers’ movement, the anti-Taliban movement has been more diffuse, its tactics perhaps best encapsulated by the song produced by the music and film industry titled “Yeh hum nahin”, or “this is not us”.

To say that we are not a nation of terrorists, or to express one’s opposition to suicide bombings, may not seem like much, but it is.

First, expressing opposition to suicide bombings is a dangerous business, as shown by the assassination of Maulana Naeemi. Second, the fundamental problem with Islam in Pakistan’s public discourse has always been that the right to determine the appropriate Islamic answer has always been demanded by and granted to the mullahs. What we are seeing now is the people demanding the right to define themselves as Muslims. And Pakistan’s Muslims are a very different proposition from Pakistan’s oil-money lubricated, hate-sprouting preachers.

In short, what the public now wants is a Pakistan defined by the faith of its people, not a Pakistan defined by the faith of its mullahs. And that too is a very good thing.

So, what does it all boil down to? Who are we?

Well, we want a functional justice system, we don’t want the Taliban running our lives and we really, really like winning at cricket. At least for last night, that was enough to make all of us proud Pakistanis.

TFT in the dark ages

My original plan for the summer of 1989 was to research my bachelor’s thesis, preferably in the immediate vicinity of a pool with something tall, cool and heavily spiked in my hand. But by the time I showed up in Pakistan, I had already blown half my grant and consequently needed a job. The Friday Times’ first chief reporter, Aamer Ahmed Khan, was a friend of mine from previous summers in the reporting business and with his enthusiastic prompting, I decided to jump onto the bandwagon.

My first memories of TFT are of immense and utter confusion leavened with an immensely welcoming atmosphere. More precisely, I remember that as we laboured to put together TFT’s second ever issue, there was a moment around about 2am Wednesday morning, approximately eight hours or so after we were supposed to have gone to press, when we were still trying to figure out what to put on the front page. For some reason, Najam was very keen on running a photograph upon which some quite unfunny quips were to be posted cartoon style. The rest of us were not convinced about the merits of his scheme and we eventually managed to get a more sober front page agreed upon, but not before another couple of hours had passed and several of us were close to passing out.

To say that TFT’s technical side was a bit lacking would be an understatement. The general modus operandi was to write whatever one thought appropriate, print it out in a long skinny column, and then cut and paste the column on to the proof page. Not surprisingly, the length of the column and the available space quite often did not match. The normal solution was to eyeball the remaining space, march back to the computer and try to come up with some brilliant summation in the inch or so left for that purpose. Some times one succeeded and sometimes one didn’t – as one would be reminded by irate authors whose pieces had been radically shortened.

Still, the mixture of opportunity and intellectual ferment brewing in the offices of TFT was too much to resist. By the time I finally returned to my research obligations six weeks later, I had determined to return. And a year later, I headed back to TFT as one of the first in a long line of valayti babus.

By the time I came back, TFT had shifted from its original home on Turner Road (behind the Lahore High Court) to fresh lodgings on top of the Vanguard book shop on the Mall. Being on the Mall had many advantages, at least as compared to Turner Road which in those days, as today, was a foetid little street choked with lawyers busily figuring how best to earn their daily bread. From a journalistic perspective, the best part of being on the Mall was that you never needed to go to the action: instead, the action came to you. Every day, or other day, some collection of loonies would band together in solidarity and march down the Mall towards Governor House protesting about the injustice being done to them. And on most such days, weather permitting, I would take a cup of tea and hang out by Vanguard’s front door to watch the loonies go by.

The problem with being in the centre of the action was that sometimes the action didn’t leave you alone. On one occasion, I remember turning my neck to the left only to see a policeman about forty yards away aiming a teargas gun at my head. A few seconds later, a teargas shell went whooshing past our noses and clonked some poor school kid on the head, who, like us, was simply picking his nose and watching the world go by. Anyhow, much drama ensued. The TFT staffers, all revolutionaries to the core, promptly charged the policeman in protest. This was not such a good idea because a few seconds later, the same policeman, now reinforced with comrades, charged us, whereupon the TFT staffers all jumped back into the office and promptly brought the shutters crashing down. We all thought we were safe but the pall of teargas outside the office had gotten sucked into the building and for the next few hours no work got done as everybody sat around putting wet handkerchiefs on their eyes until the tear gas finally dissipated.

Technically speaking, my designation at TFT was managing editor, and while I even had business cards printed with that title, I don’t think anybody other than my mother really bought the concept. For one thing, I was 21 at the time and I looked like I was, max, sixteen. Secondly, a newspaper really only has one editor and at TFT that person was unquestionably Najam Sethi. I suppose a more accurate description of my task would have been “features-wallah” but my turf covered everything other than news. It was my job to make sure that every week when the paper went to press there were seventeen pages of entertainment and my instructions were to get that material whether I had to beg, borrow or steal. If anything, stealing was preferred because the “lifted” material was normally of very good quality, usually complete with pictures, and did not require payment. All in all, a win-win situation for both reader and paper!

The people at TFT were certainly an eclectic bunch. In addition to Najam, Jugnu and Aamer, there was also a skeletal and very scruffy looking Englishman by the name of Ben who had been sent off by his father (Andreas Whittam Smith of The Independent) to go and try his luck in the wild wild East. Ben was of some indeterminate post-collegial age and whilst a brilliant writer, worked at the approximate pace of a three-toed sloth and aspired to much the same in terms of personal hygiene. Ben also had the charming disability of not being able to sleep in any condition other than the nude. At Najam’s house, where he was living, the staff had apparently worked out how to handle him but the rest of Pakistan had not been forewarned and more than one reporting trip by Ben almost ended in calamity as a result.

TFT, in general, was a haven for old khabbas of all shades. You could have swung a dead cat in TFT’s offices and probably hit half the membership of the Communist Party of Pakistan. I could tell, though, that the revolutionary fervour had started to fade by the time I returned in 1990 because Jugnu no longer addressed me as “comrade”. I thought only members of the KGB used to call each other “comrade” and acted as if my thoroughly capitalist soul was mortally offended whenever I was so addressed. Deep down, of course, I was thrilled.

Working at TFT was always a joy. I loved going to work there and I was normally the last person out. The only time that I recall things getting hairy in the office was when I rolled into Najam’s room and swore at him, much to the shock and surprise of the entire staff, and then stormed out after slamming the door. Fortunately for my future journalistic career, I was diagnosed with malaria later that day and when I returned a week later from shivering and sweating, Najam was too much of a gentleman to bring up my earlier fit.

As it turned out, TFT was not only the high point but the end of my journalistic career. After I left TFT to go to law school in 1991, I found out that going to law school meant that you got turned into a lawyer. Uh duh. Even today, there are occasions when I fantasise about heading back to the world of journalism but unfortunately, fiscal sanity always intervenes. So, for all the good times, TFT, I say thank you.

This is an article I did earlier for TFT’s 15th Anniversary. The article is reproduced here with the permission of TFT for which I am duly grateful.

Way to go, ladies!

There is a website by the name of Gigapan which specializes in giant zoomable panoramas.  Type ‘Münster’ in the site’s search engine and you get what looks like a standard street-view of an average German town, complete with the requisite Gothic steeple in the background.

Now zoom in on that church steeple till you find three hanging metal cages. Because therein lies a tale.

In February 1534, the town of Münster was as solidly bourgeois as it looks now. But to a group of radical Christians, Münster represented a priceless opportunity which they exploited to the hilt. After seizing City Hall, the radicals set up a regime in which all property was to be held in common. After a brief period of communal glory, Münster dissolved into a madness where the “elect” were able to force women into marrying them, dissenters were executed and all normal life ground to a halt.

In June 1535, the forces of the Church finally succeeded in taking back control. The leaders of the uprising were tortured to death and their bodies were hauled up for public viewing in three cages hung to the spire of St Lambert’s Church. After 50 years or so, the bodies were themselves removed. But as the internet testifies, the cages remain there till today.

Except when viewed from a great distance, history’s progress is never smooth. We are too prone as a nation to comparing our plight with the West in which all seems as serene as the unruffled surface of a pond. But go beneath that placid façade and it turns out that things were once as bloody and as confused there as they are here.

Those boring streets of Münster ran with blood 500 years ago and the half-millennium since has not been all milk and honey either. Between 1900 and 1945, Germany was the centrepiece of two world wars. Between those two wars, Germany first went financially insane, destroying its economy through hyperinflation, and then went politically insane, giving vent to its darkest urges through the nightmare that was Nazism.

The point of all this history is not to say that everything will turn out fine. That platitude may or may not be correct but it is certainly irrelevant. Instead, the point being made is that life is to be lived, not just endured: the fight is now.

All of this brings me naturally enough to the charity event recently organised by the Pakistan Fashion Design Council.

As a fund-raiser, the show was spectacularly successful, raising Rs 4 million to go along with the Rs 8 million worth of goods already sent to Mardan by the umbrella group, Hum Pakistani. But the true importance of the event was not in the amount it raised but in who did the raising, and how they raised it.

The PFDC event was organised almost entirely by women. One could, with some justification, refer to the organisers as socialites. But the throwaway cynicism of that tag would be unjustified. Yes, they are all women who are social. But they are also all women who are successful professionals. And that is an important fact because while militant sympathisers present the current conflict as being between true believers and a corrupt elite, it is also a war between a small group of men and pretty much most of the women in this country.

The PFDC event was therefore an important function because it showed that those women of this country who will have the most to lose when the fundos come to town are determined to fight back. And the way they fought back is also important.

Fashion may seem light years removed from the theological debates between liberals and extremists but it is not. Extremists believe that there is only one way of being Islamic, which is to act like a well-armed 10th century goat-herder. The rest of us believe that there is no limit to human expression, that one can be both modern and Muslim, and that Islam is a religion for all times and all places, not a template for reproducing one place and one moment in time.

With its devotion to the ephemeral, the fashion industry represents the most complete rejection of the fundamentalist ethos possible. At the same time, our fashion industry is one of the few things in this benighted country that is uniquely Pakistani — as in not Indian, not Arab, not ‘Islamic’, but simply, specifically Pakistani.

Celebrating Pakistani fashion is therefore not just frivolous escapism but a defiant gesture that rejects those who wish to enchain all of us in an arid time-warp. In the case of the PFDC, that defiance was more than symbolic because the organisers had received several bomb threats. But even in symbolic terms, the PFDC’s defiance was many-layered: not only was the event organised by women of all ages, but it featured the work of many extremely talented female designers which was in turn presented by the best female models of Pakistan.

Perhaps all of the above is too complicated. If so, let me put it more simply: the PFDC function was an extremely public, well-manicured finger from the (mostly) female fashion designer community to the militants. Way to go, ladies!

Khalifas from the hills

People who oppose the ongoing operation in Swat normally make two types of arguments.

The first argument is practical, that military force should only be utilised as a last resort and that this is not the time.

The second argument is philosophical. As one news anchor put it to me, how can we oppose the imposition of sharia law in Swat when Jinnah founded Pakistan in the name of Islam?

The essence of the first argument is that using the army to crush militants is the equivalent of using a sledgehammer to kill a fly. So while it may be effective, military action also comes with a massive cost. Innocent people get killed, families get displaced and entire towns get destroyed.

The answer to this argument is provided, however, by the military action itself. Operation Rah-e-Rast has been underway for almost four weeks. Sixty soldiers have died in the fighting while, according to ISPR, more than 1,100 militants have been killed. And yet, the operation is far from over. As I write these words, soldiers of the Pakistan Army are going door to door in Mingora, trying to blast out the militants who have been using 20,000 Swatis as human shields. And as for the financial cost, who knows?

The ongoing military operation is therefore self-evidently not excessive. Had that been the case, the operation would already have been over.

Opponents of military action can respond in one of three ways. The first is to argue that the army is incompetent. The second is to argue that the entire operation is a sham, the product of a giant conspiracy between Mossad, the CIA and RAW to break up the country and steal Pakistan’s nuclear weapons. And the third is to say that the army was sent in too soon.

I hold no brief for the Army and I know very little about its competence. But to paraphrase Donald Rumsfeld, you fight with the army you have, not with the army you want. Since we have no other army, accusing the army of incompetence is neither here nor there. Logically, the only other alternative would have been to invite American forces over from Afghanistan to invade Swat for us. In the absence of any support for that option, we have no option but to stick with General Kayani and his men.

So far as the grand conspiracies are concerned, I have no doubt that the CIA, Mossad and RAW would all breathe easier at night if we did not have nuclear weapons. But the fact that they do not want us to have nuclear weapons does not mean that they want to break up Pakistan. An exploded Pakistan would be exponentially more problematic for the international community than Pakistan in its current state.

If anything, the heads of CIA, Mossad and RAW are all praying to their respective deities to keep Pakistan solvent and stable because that is the only way our weapons will stay in sane hands as opposed to being in the hands of those who think that a nuclear exchange is a good idea because all the Muslims who die in the resulting holocaust will go straight to Paradise.

The final contention is that we should have waited longer. My question is: why? Is it not serious enough when a group of armed men rejects our Constitution, attacks our army and kills our citizens? And if that is not the issue, what would extra time have bought us? If anything, extra time would have given greater opportunity to the militants to entrench their positions.

I come now to the question of morality: how do I justify making war on those who are supposedly seeking only to fulfil Pakistan’s destiny?

Simply put, Pakistan’s destiny was not — and is not — to serve as the handmaiden for morons. Mohammad Ali Jinnah was not just a lawyer but one of the finest lawyers produced in the entire history of British India. His vision for Pakistan was not one in which self-proclaimed khalifas descended from the hills to unilaterally impose a vision of Islam in which the worship of God was reduced to beards of stipulated lengths and blowing up women’s schools.

At the same time, I freely concede that it is the prerogative of a sovereign nation to decide how it wants to govern itself. And if the majority of the people in this country decide through some democratic process that they actually want to be governed by Sufi Muhammad and his ilk, so be it. But they have not done so. Instead, whenever they have been given the option, the people of this country have resoundingly rejected religious parties. Pakistanis have drafted three constitutions for themselves: not one of them has set up a theocratic state.

So, Mr Anchorman, here is my answer: these people deserve to have war waged on them because they reject our Constitution, because they reject the values which Pakistan was founded upon, and because they are trying to stuff a different legal system down the throats of unwilling citizens.

Good enough for you?

What Islam Means for Pakistan

Lahore, Pakistan — In an attempt to restore peace in the restive Swat valley, the Pakistani government signed a controversial peace deal in March with the Taliban-backed group Movement for the Enforcement of Shari’a (TNSM). In the following month, the Taliban extended its grasp beyond Swat to within 60 miles of Islamabad, the nation’s capital, forcing the army to restart military operations.

This move brought fresh international attention to Pakistan’s economic and social problems. But within Pakistan, the rise of the Taliban has focused attention on a different question: What does Islam mean for Pakistan?

Talk to Pakistani Muslims about their faith and the most common statement you will hear is: “Islam is a complete code of life.” If pressed further, they may elaborate that Islam – unlike Christianity – does not distinguish between church and state, and that from an Islamic perspective there is no such thing as purely secular legislation. Push even further and you are likely to hear that the solution to all of Pakistan’s problems is to make all laws consistent with Islam.

This seeming consensus is misleading though because there is, in reality, very little agreement on what Islam actually entails in terms of legal, enforceable rules. While each school of thought within Islam – four major schools within Sunni Islam and one among Shi’a Muslims – has its own clear and detailed laws relating to inheritance, marriage and divorce, everything beyond that limited arena of “personal laws” is open to debate. For some people, Islamic law means imposing veils on women and beards on men. For more left-leaning Pakistanis, Islamic law means common ownership of property. For those inspired by Sufi tradition, Islamic law means a respect for the overarching principles of love, kindness and charity.

The real problem then is not that Pakistanis want Islamic laws, but the manner in which those laws are determined. In this regard, Pakistan has struggled from the very beginning with two distinct legal identities. The first identity was the secular administrative identity inherited from the British in 1947. The second was the Islamic identity espoused by most its citizens.

Pakistan’s constitutions of 1956, 1962 and 1973 were based on a secular, Westminster-style political model in which the parliament was sovereign. Thus, it was the job of parliament not only to make laws but also to ensure that all laws were in conformity with the principles of Islam, or shari’a.

This model was then radically undermined by General Zia ul Haq following his military takeover in 1979. Zia’s first attempt to justify his rule was to argue that he had – quite literally – been directed by God to impose Islamic law upon Pakistan. When his attempts to claim divine inspiration ran thin, Zia was forced to restore democratic rule, but not before he had tinkered with the constitution, creating a Federal Shariat Court charged with ensuring that all legislation was in conformity with Islamic laws. The actual effect of his attempted Islamisation of most laws was minimal, except for laws relating to women’s rights.

This change raised the question of who could decide whether a law was in conformity with Islam.

Zia’s austere and rigid model of Islam was largely imported from Saudi Arabia and deferred to religious extremists who, bolstered by massive amounts of Middle Eastern funding, consistently argued that law was to be decided by people like them, and not by the parliament. These conservative figures became public spokespersons for Islam, even though their beliefs had limited public support. Given the instinctive veneration most Pakistanis have for Islamic law, the end result was a paralysis in which people rejected doctrines of hate at a personal level but lacked the intellectual and institutional leadership to articulate a strong, unified response.

General Pervez Musharraf’s military takeover in 1999 led to the collapse of parliamentary democracy that had been in place since 1987 after Zia’s death. This created a political vacuum in which the ability to define what was Islamic was ceded – almost by default – to well-funded religious extremists.

This political collapse was accompanied by a continuing failure of all democratic governments in Pakistan to provide basic necessities like education, health, energy and clean water for all its citizens, which in turn have allowed fundamentalists to expand their zone of influence. For example, extremist-oriented madrassas (religious schools) provide free education for children while government-run schools are routinely fraught with administrative and financial setbacks. Not surprisingly, the areas in which the Taliban are now ascendant are also the least developed.

The first step toward regaining security in Pakistan is certainly for the army to take control of the areas which have been ceded to the militants. But in the long run, Pakistan will not regain the “middle way” of Islam for its people until it can show that a parliamentary democracy can deliver the basic needs of its citizens, and a more articulate Islamic leadership recovers its indigenous voice.

Feisal Naqvi is a lawyer based in Lahore, Pakistan. The article is written for the Common Ground News Service.

Learned Helplessness

Take a rat and hold it in your hand until it stops struggling. Now throw it into deep water. According to researchers, the rat will drown after an average of about 30 minutes.

Why does this matter?

It matters because if you take a rat and simply chuck it into the deep end, it lasts a lot longer, swimming for almost 60 hours before giving up and drowning.

The difference between the two rats is not physiology but mentality. The rat that has learnt that struggling is useless makes no real effort to protect itself. The one that has not learnt to give up fights and fights until it physically collapses.

What goes for rats apparently goes for people too. The description of the rats comes from studies done by Martin Seligman, a famous professor of psychology. According to Seligman, human beings who have grown accustomed to a lack of control over their surroundings respond to new situations with apathy and depression, even when they are no longer helpless. Seligman termed this behaviour, “learned helplessness”.

So, what kind of rats are we? Actually, I am not too sure.

Much of the discourse in the liberal media over the last week has been taken up by a prolonged session of chest-beating and shirt-rending over our national apathy. If one wanted to refine the position, the clinical argument would be that we have become so accustomed to being pushed around by various dictators that we are now entirely without hope: we are like the rats who have learned helplessness and are now content to drown.

I may well be stupidly optimistic but I just do not buy that argument. Yes, we are a nation that has always welcomed its dictators but there is a huge difference between the embrace of an unpleasant alternative and an indifferent resignation to a malevolent fate.

Other than this bon mot, what evidence could one point to?

The first point of analysis for me is that we have already been through an attempted Islamisation. General Zia-ul Haq’s full frontal assault on our liberties and institutions was backed by the entire might of the state for a period of 11 years. That was a time when the head of the state actually did argue that he had been sent by God to bring about a revolution. And he failed.

Zia’s failure is significant because while it left our legal landscape scarred with numerous eyesores (the various Hudood Ordinances, for one) it also failed to change the essential contours of that landscape.

My former dean, Guido Calabresi, used to explain the failure of legal radicalism to take hold at Yale in the 1980s with reference to the fact that New Haven had actually pioneered legal realism back in the 1930s. Or in his words, “because we had the chicken-pox, we did not get the small-pox.”

Similarly, the body politic of Pakistan carries within it the institutional memory of what happened the last time the mullahs went on a power grab. And that institutional memory remains intensely suspicious of anything bearded that wants to operate outside its appropriate zone of influence (that is, circumcisions and funerals).

A more recent — and more substantial — point of analysis emerges from the recent lawyers’ movement. Let me freely confess that I was an extremely sceptical supporter of the movement. In other words, while I agreed with the movement’s aims, I was considerably doubtful as to whether the movement had more than a snowball’s chance in hell of actually succeeding. I was proved wrong repeatedly because not only did Iftikhar Muhammad Chaudhry get restored once as Chief Justice of Pakistan, he got restored twice!

All of that matters because while the first restoration (call it CJP 1) was driven by a hardcore group of lawyers, CJP 2 came about because of a genuine popular uprising in which people took to the street in support of a cause.

Armchair conspiracy theorists may disagree with my last statement, but the point here is not whether Nawaz Sharif emerged on the streets as the result of a secret agreement or because he had discovered his manhood. Instead, the point here is that the people now believe (reality be damned) that they are the ones who got Iftikhar Muhammad Chaudhry restored.

And just as helplessness can be learned, so can it be unlearnt.

I do not know whether we are a nation of drowning rats or a nation of fighting rats. But we are about to find out.

“Because you are stupid!”

The venue was an international businessman’s lunch in Lahore. My interlocutor was a genial Englishman, several drinks down. And my question was very simple: “If Pakistan does have enough coal to generate all of its electricity for the next 500 years, why do we have load-shedding?”

His undiplomatic answer: “Because you are stupid!”

This is not a column about coal policy. This is a column about stupidity.

I don’t think we are a stupid people. But the harsh fact is that we do act consistently in asinine ways. So, what gives?

One answer to this paradox comes from Malcolm Gladwell’s new book, “Outliers” in which he discusses the mystifying number of Korean Air crashes.

During the 1990s, Korean Airways was consistently one of the most unsafe airlines in the world, so much so that Canada actually banned KAL planes from flying over its territory for a while. Given the normal care with which Koreans make things, and their hard-won reputation for discipline and diligence, this was indeed mystifying.

According to Gladwell, one very important reason for the crashes was the excessive deference in Korea given to elders. The Korean language, for example, is extremely status sensitive with any number of opportunities for subordinates to signal deference to seniors. In terms of cockpit conversations, this meant that co-captains would not tell their captains that they were about to crash but would instead politely suggest that the current rate of decline was somewhat undesirable. When captains ignored their juniors, the result was catastrophe.

Interestingly enough, the cure for KAL’s safety record was both social and linguistic. Korean Air Lines pilots were thus taught to express themselves clearly and bluntly in critical situations. At the same time, all pilots were made to stop talking in Korean and instead speak in English, a more direct and less hierarchical language.

So, will Pakistan be fixed if we all start speaking English? Not quite.

Gladwell’s arguments drew inspiration from Dutch social scientist Geert Hofstede’s theory of cultural dimensions which ranks different countries and societies on the basis of five cultural dimensions.

One of these dimensions is the “Power Distance Indicator” which shows the extent to which the less powerful members of institutions and organisations expect and accept that power is distributed unequally. Another dimension is the “Uncertainty Avoidance Index,” which reflects the extent to which members of a society attempt to cope with anxiety by minimising uncertainty through strict adherence to rules.

Not surprisingly, Pakistan scores high on both indicators. The result, according to Hofstede, is as follows:

“The combination of these two high scores . . . create societies that are highly rule-oriented with laws, rules, regulations, and controls in order to reduce the amount of uncertainty, while inequalities of power and wealth have been allowed to grow within the society. These cultures are more likely to follow a caste system that does not allow significant upward mobility of its citizens.

When these two dimensions are combined, it creates a situation where leaders have virtually ultimate power and authority, and the rules, laws and regulations developed by those in power, reinforce their own leadership and control. It is not unusual for new leadership to arise from armed insurrection – the ultimate power, rather than from diplomatic or democratic change.”

What Hofstede’s theory says about Pakistan then is that we are a society pre-programmed to worship Big Brothers. We are a nation which has reacted to adversity by developing a pathological dependence on rules and rulers. We are a nation obsessed with status.

The scary part of Hofstede’s analysis of Pakistan, though, is not the two factors I just noted: so far as those are concerned, we are in the distinguished company of much of the Muslim world. Instead, the one dimension in which Pakistan really sticks out is what Hofstede calls “Long Term Orientation” or LTO.

According to Hofstede, this dimension reflects a culture’s “time horizon”, or the importance attached to the future versus the past and the present. Countries with a high LTO value thrift, perseverance and a sense of shame. Countries with low LTO place an emphasis on respect for tradition, fulfilling social obligations, and protecting one’s ‘face’.

In his study of 23 countries, Hofstede found that the countries with the highest LTO scores were Asian countries such as China, which had a score of 118, and Taiwan, which had a score of 87. Pakistan had a score of zero, which is also the lowest score ever recorded.

Let us now return to my lunch-mate’s brutal analysis of the reason for our current plight. Are we really, truly stupid?

Well, it depends upon how you define “stupid”. If you take the average Pakistani and subject him or her to an IQ test, I have no doubt that we would fare reasonably well. However, the point is that society is not just a collection of individuals but rather a collection of individuals whose interaction is determined by their culture. And our culture of power, put bluntly, is toxic.

We are a people inclined to worship our leaders and to trust blindly their diktats. We are a people more worried about saving face than what the future might bring. We are a people so worried by the spectre of corruption that we have barricaded ourselves into a labyrinth of rules. And that may or not be stupid, but it is certainly short-sighted.

The point of this column though is not to bemoan our fate. At the end of the day, culture is not destiny. Ultimately, all it took to fix Korean Airlines was a recognition of the problem. If we can recognise our cultural biases and try to counteract them, there is much that can be done.

This is still a country which is run by bureaucrats. More specifically, this is a country designed to be run by smart, independent and capable bureaucrats. If we can train our bureaucrats to think, we can overcome a lot of our cultural baggage. If we don’t, we will reap the consequences of being governed by myopic, rule-bound, status-obsessed petty tyrants.

What do you think we’ll do?

Now comes the hard part

As the dust settles gently over the euphoric end to the black-coat movement, some hard questions remain to be asked. First, why did this happen and what does it portend for the politics of this country; second, what does this mean for the judicial system?

To begin with the first question, honest analysis has to conclude that the determining factor behind the success of the movement was not the sudden embrace of the rule of law by the people of Pakistan. Yes, the lawyers’ movement succeeded brilliantly in raising public consciousness regarding the issue of judicial independence. But by themselves, the lawyers had faltered. What made the movement succeed in effect was the embrace of the Long March by the PMLN and, most importantly, the role of the media.

To clarify, our public has for centuries lived in a unipolar world, in which all power flowed from the central locus of the state, be it the emperors of Delhi, the British colonists or the rulers of Islamabad. Different forces of the state – such as the bureaucracy or the army – have from time to time remained ascendant but power remained centralised at all times. Today’s media is the first truly independent source of power to emerge in Pakistan. General Musharraf tried to subjugate the media but failed. Now President Zardari has followed in his footsteps.

However, quibbling over the root cause of Sunday’s events is not entirely relevant. So far as the people are concerned, they took to the street to march against an unpopular government and in favour of an ideal. And they succeeded.

That romantic view of events will now become received wisdom and the next time round, the people will require far less instigation – either by the lawyer community or by the media – to rise up in favour of an independent judiciary. The question which then needs to be asked is: can the judiciary deliver?

There are two answers to that question, because that question can in turn be understood in two different ways.

If by asking “can the judiciary deliver” we want to know whether the judiciary can usher in a new era of transparent and competent government, the short answer is no. There is a division between the realms of policy and principle and while occasional forays across the dividing line are inevitable, it is neither desirable nor practical for the judiciary to take too much responsibility on its shoulders.

Not only is the judiciary ill-equipped to make policy decisions but efforts to intrude into the realm of other branches of state tend not to be well received by those other branches. This also does not require the judiciary to become a cipher. The tenure of Mr Justice Ajmal Mian as the Chief Justice of Pakistan, for example, saw a number of very important “political” cases being decided, including cases dealing with military courts and the legality of the emergency declared in May 1998. However, that court was never seriously accused of “interfering” in the prerogatives of other branches of state.

And with great respect, one would submit that the tenure as chief justice of Mr Justice Ajmal Mian would be a good model for the Supreme Court to emulate.

On the other hand, if the question means whether the restoration of Chief Justice Iftikhar Chaudhry will usher in a new era of cheap and speedy justice, the short answer to this question is also no.

Even from a best-case perspective, what the lawyers and the media have successfully managed to achieve is a return to the status quo ante, that is, a return to the judiciary of November 2, 2007. That judiciary may have been independent, but in terms of dealing with the problems of the public, it left much to be desired.

If one visualises the judicial system as a system designed to process and resolve disputes, the point which emerges is that it suffers from two kinds of problems: “personnel” and “structural”.

The “personnel” problem relates to the quality of the men and women serving as judges in Pakistan. That problem is now likely to be mitigated for two reasons. First, it had finally struck home to many people that the judiciary – both subordinate and superior – needs to be staffed with the best that Pakistan has to offer in the way of legal talent. The Shahbaz Sharif government had already tripled the salaries of the lower judiciary and hopefully other provinces will follow suit.

Second, the restoration of Iftikhar Muhammad Chaudhry to the position of CJP not only makes it more likely that appropriately qualified people will be asked to serve as judges but also that that they will agree to serve. Prior to his restoration, many qualified candidates refused to be considered because they did not want to join a tainted institution. That excuse is certainly no longer valid.

Unfortunately, fixing the “personnel” problem is not enough to fix the judicial system. This is because the fundamental problem with our legal system is that it is structured in such a way as to both invite and reward frivolous lawsuits. The result is a massive torrent of litigation before which even the most capable of judges are helpless. If the delays endemic to the legal system are to be fixed, no significant progress will be made until the underlying regulatory systems, particularly those dealing with immoveable property, are radically overhauled.

All of this, however, should not be taken to mean that the restoration of Chief Justice Chaudhry was mere sound and fury, signifying nothing. The independence of the judiciary now not only stands established as a core public virtue but it is one which the public itself feels obliged to defend. The fact that the media has now arrogated to itself the role of protecting judicial independence means that attempts to sabotage the judiciary are less likely to succeed.

The fact that the judiciary is now led by a man who is indisputably independent hopefully means that our leaders will feel less inclined to pull obnoxiously illegal stunts (such as the promulgation of Governor’s Rule). And finally, the restoration of the chief justice has given new hope to the citizens of Pakistan. Those may well be intangible gains but they are crucial nonetheless.

This article was published in The Friday Times on 20 March 2009.

Till Yesterday

Pakistanis have historically been a famously fractured bunch. Till yesterday, the common wisdom was that we had nothing in common besides a fondness for cricket. Turns out that we also share a commitment to an independent judiciary. And that makes me proud

Till yesterday, the single greatest moment of my life as a Pakistani was the 1992 World Cup Final. I was attending law school in the US in those days, and after the match had finally finished at 7 am, I went and bhangra’d all the way down the hallways of my illustrious institution, much to the amusement of the sleepy first-years stumbling into Dean Calabresi’s tort class.

As I said, that was till yesterday. Today, my proudest moment as a Pakistani is the restoration of the Chief Justice.

To digress for a minute, the honest truth is that Pakistanis spend a lot of their time in a defensive crouch, either defending their country with anger or deflecting criticism with self-deprecatory humour. I moved back to Pakistan from New York in December 1996 and the one question people have never stopped asking me is, “Why?”

There are many answers to that question (my standard reply is, “jithay di khoti, uthay hi aan khaloti”) but the point is that the question never stops being asked. In the eyes of the world, Pakistan remains a quixotic choice, justifiable only on the basis of some illogical or emotional rationale.

What happened yesterday then was doubly redeeming. It was a moment of redemption for this country, a glorious moment of unity and hope, one whose memory will hopefully remain with us in the months and years ahead. And it was a moment of redemption at an intensely personal level because for once, one could turn around and say, look at these people, look at the mota in the snazzy gota-spangled Toyota Corolla, yes, that white car with the giant stuffed lion wearing dark shades and a lurid red pagri strapped to its roof. He’s a patriot, a well-meaning citizen who has dragged his very large desi ghee-fed ass out on to the street because he believes in a principle that you and I also believe in. You, me and him now all share something today that we didn’t a day before.

The original sin of this country has always been the fact that it has no common identity. Like Whitman, we contain multitudes. Those wildly disparate identities quite often do not make sense but they are all there, sometimes in the same person.

At 11 am this morning, I was in the back garden of the Lahore High Court watching a sweating mass of wukla dance with most unlawyerly abandon. One gentleman in black was supervising proceedings, standing on a bench with a large chhan-chhana in his hand. After having let the bhangra go on a for while, he led the lawyers first in cheering for the restored Chief Justice, and then in loud naaras of “Pakistan ka matlab kiya, La ilaha ill Allah!” Having shouted himself hoarse, he went back to leading the bhangra brigade, waggling his chhan-chhana ecstatically.

That one scene captures all the contradictions of this country. Lower middle-class petty bourgeois wage slaves have no business being revolutionaries. Third World citizens have no business demanding a return to constitutionalism. Rioting in the name of the rule of law is a trifle problematic. And dancing joyously while shouting religious slogans favoured by fundamentalist parties…well, that’s Pakistan. Go figure.

The events of yesterday did not resolve all the tensions within our body politic: we may well be but a suicide bomber away from returning to our usual chaos. We are however closer to being a nation because we are now closer to agreeing on at least one fundamental value that is, the rule of law.

That agreement of this one value has arisen because of a movement across classes and across regions. The first lawyers to get arrested came from Karachi. In Quetta, a plane full of passengers refused to board unless Ali Ahmed Kurd was allowed to fly to Islamabad. In Lahore, the first demonstrators to show up at the High Court were not lawyers but representatives of civil society, an utterly unexpected mix of upper-class professionals, whom one would ordinarily expect to see at gallery openings, sipping organic green tea and sharing gossip, rather than dodging lathis and chucking back tear gas shells with their bare hands.

Pakistanis have historically been a famously fractured bunch. Till yesterday, the common wisdom was that we had nothing in common besides a fondness for cricket. Turns out that we also share a commitment to an independent judiciary. And that makes me proud.

The Empire Strikes Back

In the halls of Islamabad, devolution is already dead. People gather in hushed groups to discuss its replacement, whether the local government system should revert back to its 2000 persona or if we need to go all the way back to 1979. But so far as devolution itself is concerned, there is no doubt amongst the powerful that its time has come and gone.

First, though, a little history, because to understand local governance in Pakistan, one has to revert first to the imperial model of governance – and by imperial, I mean Mughal, not British.

The Mughal model of governance operated primarily through the jagirdari system, i.e. tax farming. The emperor would thus dole out tax fiefdoms, large and small, to his favourites and those favourites in return guaranteed a certain amount of revenue: whatever additional amount they squeezed out of the peasants was theirs to keep. Of course, since the jagirs could be taken away at any time, the jagirdars had no incentive to manage wisely for the long term.

When the East India Company defeated Nawab Shuja-ud Daula at the Battle of Buxar in 1764, they took from him the diwani rights to Bengal, which included the right to collect land tax. As with all corporate assets, returns needed to be maximised. The British therefore introduced a system whereby Bengal (and subsequently, the rest of imperial India) was divided up into districts, each headed by a District Collector of Revenue (i.e., the DC).

As the primary representative of imperial power, the DC exercised control over all aspects of governance. The DC was simultaneously a judge (in his capacity as magistrate) as well as the executive arm of the state, exercising supervisory control over the police. Most importantly, the DC controlled the entire land record system through his position in the revenue hierarchy.

The end result was that the DC became the face of the empire, at least so far as the rural populations of the sub-continent were concerned. It is fair to say that in a very large number of cases, the men who served as DCs were decent, hard-working people who did their best for their subjects. But it is also fair to say that the DCs saw their role, both before and after Partition, in extremely paternalistic terms.

Local governance in Pakistan thus grew up under the heavy shadow of the DC. Local government bodies remained subject – both de facto and de jure – to the orders of the DC. For example, Section 156 of the Local Government Ordinances of 1979 provided that “if in the opinion of Government, anything done or intended to be done by or on behalf of a local council” was “against public interest”, the Government could “quash the proceedings”. This power of the “Government” was then further delegated to the Divisional Commissioners (for urban areas) and to the Deputy Commissioners (for rural areas). The only level at which the bureaucracy was actually subordinate to elected governments was at that of the province in that the provincial secretary of the department of local government was technically subordinate to the provincial minister for local government.

The devolution reforms of the Musharraf regime marked a decisive break with this history of executive dominance. In simple terms, each district was given financial autonomy and an elected legislature (along with elected sub-legislatures at the tehsil and union council levels). More importantly, the head of the district legislature (the Zila Nazim) was placed above the head of the district administration in much the same way as the chief minister of a province was placed above the provincial bureaucracy. Furthermore, the last remnants of the unified judicial and executive powers exercised by the DC of yore were wiped out so that judicial power became exercisable only by judicial magistrates.

The current consensus against the reforms introduced by the Musharraf regime therefore draws strength from two main sources: the first is the long repressed frustration of a still powerful bureaucracy which feels that its rightful role has been taken over by bumbling amateurs; the second source is a genuine frustration with the problems and delays inherent in a system designed not to maximise executive efficiency but participatory democracy. How genuine then are these concerns?

To answer the above question first requires appreciating the fact that there are two dominant perspectives from which to examine the performance of the post-2001 local governments: service delivery, and law and order.

From the perspective of delivery of services, the general consensus has been that the devolved local governments are a huge improvement over their predecessors. In simple terms, the fact that local governments are both locally elected and locally accountable has lead to significant improvements in the way in which development projects are both identified and executed.

The problem instead for the post-2001 system has come from the law and order perspective. Under the 1979 dispensation, the many hats worn by the DC allowed him immense discretion in dealing effectively with local problems. When the role of the DC was divided up between executive and judicial functionaries, the inevitable result was a loss of efficiency.

The last element behind the current outcry against the devolved system is the simple fact that the district legislatures in the Punjab are dominated by the PMLQ while the provincial legislature is dominated by the PMLN. Since the district legislatures and the zila nazims wield substantial authority at the local level, it has resulted in a diminution of the power available to provincial legislators as well as to the provincial executive. Members of the provincial assembly do not like being told that their wishes are being frustrated by the zila nazim and neither does the chief minister. The inevitable demand therefore has been for a repeal of the local government system as introduced by General Musharraf.

The devolution of power from the provinces to the districts is a complicated subject which evokes strong emotions. There is no doubt that the current system is flawedand that in particular, the mechanism for maintaining law and order under the devolved system needs to be strengthened. There is also no doubt that a system in which all powers are concentrated in the hands of one person or one office will always be more efficient than a system where powers are separated and exercised by separate bodies. The question, then, is one of values.

The problem with efficiently concentrated power is that it can be efficiently used to oppress one’s opponents. The problem with a powerful bureaucracy is that it can easily smother and override local concerns. The debate between values is not one that can be resolved easily. However, in the instant case, there is one key factor that militates against the DC-based model – the fact that we have already ditched it.

To explain, the transition from the old DC-based system of local government to the current multi-tiered, multi-body muddle was not an easy transition but one that came with significant costs. In the long run, there can be little doubt that we as a nation need to move in the direction of greater participatory democracy as well a system of separated powers. Whether or not we should have taken the leap in 2001 to such a complicated system is now irrelevant because having taken that leap, it makes no sense to revert to an increasingly archaic system. Instead, the sensible thing would be to try and work with the system so that its flaws can be overcome.

Sense and sensibility, though, tends to be in short supply in Pakistan. We can only wait and see whether good sense prevails or whether the remnants of empire succeed in resurrecting their privileges.

This article appeared first in The Friday Times issue dated January 30, 2009

Tanks and Think Tanks

Getting elected is only one half of politics: the other half is coming up with competent policies after you get elected. Our politicians are very good at the first half. But if they make no advance preparation for effective governance, they will remain forever like dogs running after a car, confused even after they succeed in latching on to the bumper

Many people wonder — and will probably always wonder — how a relatively sophisticated country like the United States elected an unmitigated idiot like George W Bush. One answer to that conundrum comes from Oliver Stone’s new movie, “W”.

In the scene that I am referring to, the young Dubya is on his knees going through the initiation rites of a Yale fraternity. The challenge facing the inebriated pledges is to remember the names of as many frat brothers, and while others falter, the young Bush excels. Fast forward to the White House.

I am not suggesting that the ability to remember names is enough to make you President of the United States. But it is an indispensable prerequisite. Running for office, any office, is a tough job. Getting people to vote for you takes serious people skills and people skills are real skills, not just trendy psychobabble. Remembering people’s names is perhaps the most elementary of people skills. Getting people to like you is a higher-order people skill. Without these skills, you can be as smart as you like but your chances of getting elected will be vanishingly small.

The problem though is that while being a successful politician requires certain very specific skills, governance requires a very different set of skills. Getting elected requires charm. Governance requires analytical ability, the capacity to analyse competing points of view and a basic knowledge of economics and law, not to mention whatever area of policy you have been given responsibility for.

In this regard, many of the learned members of Pakistan’s parliament unfortunately share far too much with George W Bush. Like him, many of them are brilliant politicians, people capable of charming both a cocktail crowd and the hookah-smoking denizens of a rural dera. Like him, many of them will know who’s connected to whom, who’s got his finger in what pie, and who is pushing what angle. And like him, many of them know diddlysquat about anything else.

The point of all this is not to lament the flaws of our politicians. Yes, the United States has just produced Obama but taken as a whole, our politicians are no better and no worse than politicians in other countries. What handicaps this country is not a lack of Obamas but a lack of supporting institutions.

Understanding the above point requires a detour into military history.

When World War I started, it was widely believed that it would be over, one way or the other, in a few weeks. However, as time went by, people made the grim discovery that modern technology had made it a lot easier to kill people. The result was that the battle lines which were drawn within the first few weeks of the war remained there for the next four years.

Each general thought that the solution lay in the application of more and more force. Battles used to be preceded by a few hours of shelling. Those hours became days and then finally weeks. All to no avail. When the shelling stopped, the other side would emerge from its trenches and happily machine-gun the attacking troops into oblivion. Even if the charging troops managed to take the first line of trenches, resupplying them was next to impossible with the result that no permanent gains were made by either side.

Pakistani politics — in its non-dictatorial phases — resembles the trench warfare of World War I. One side succeeds for a short period of time in capturing the high ground but cannot hold on against the withering assault of the media and the Opposition. The other side then occupies the heights only to retreat a few years later. In the meantime, the battlefield gets converted into a bloody mess.

The eventual solution in World War I to the stalemate of trench warfare came from two sources. The first was the gradual exhaustion of the Axis forces; the second was the introduction of tanks. Because tanks could withstand small arms fire, they allowed troops to advance past the entrenched positions of their opponents and into open ground, turning a static war into a war of movement.

In the case of Pakistan, the shift from trench warfare into a war of movement will also come about because of tanks, but in our case, they will have to be think-tanks.

To return now to the United States, Barack Obama has spent the last two years running for president: he has not spent the past two years worrying about what he will do once he takes over. That job was outsourced to a freelance network of think-tanks and NGOs who did nothing else but think about what to do when the time came. The result is that Obama will not have to put together a plan after getting sworn in: instead, he already has a plan.

Let us compare this now to the situation in Pakistan. From what I understand, the PMLN is under the impression that it will win the next election. Ok, but where is the PMLN policy unit? What are their ideas? Because if they have no ideas now, they will have no ideas later.

Being in elected government is all about fire-fighting, rushing from one crisis to the next. If you only start thinking about policy issues after you get into government, it’s already too late.

Getting elected is only one half of politics: the other half is coming up with competent policies after you get elected. Our politicians are very good at the first half. But if they make no advance preparation for effective governance, they will remain forever like dogs running after a car, confused even after they succeed in latching on to the bumper.

Save Pakistan, save the world

International attention has focused on Pakistan like never before in the weeks following the Mumbai attacks. To quote Bruce Riedel, a former CIA officer and adviser to President-elect Barack Obama: “All of the world’s nightmares come together in Pakistan.”

Assuming the world does not have the option of turning its back on the country, what can it do to help Pakistan?

The short answer is that Pakistan needs economic assistance. The militant extremists who wreak havoc are, for the most part, unemployed and frustrated young men.

If the Pakistani people – as opposed to the Pakistani military – were given tangible, visible economic assistance, it would go a long way toward winning over a suspicious populace. After all, starving Pakistanis cannot eat the F-16s sold to their armed forces.

With that in mind, here are three suggestions.

The short-term solution
The simplest and quickest way to help Pakistan’s economy is to reduce the tariffs imposed on Pakistan’s textile sector, which accounts for approximately 60% of Pakistan’s exports and more than 60% of its industrial workforce.

Pakistan has one of the world’s most dynamic and well-developed textile industries, but in recent years business has shifted to other countries with more favourable tariff regimes.

If the EU and the US, Pakistan’s largest textile importers, were to remove or reduce tariffs on Pakistani textiles, experts believe that Pakistan’s $7.5bn worth of textile exports would easily triple in value. Since the textile industry is generally labour intensive, the influx of business would immediately result in increased employment.

The medium-term solution
The world should help Pakistan focus on development in the north-west frontier province (NWFP) where problems with extremism are most acute.

The NWFP has tremendous potential for hydro-electric (hydel) projects. A heavy investment in the hydel infrastructure of the NWFP has the potential to almost triple the current total power generating capacity of Pakistan. However, international investors are reluctant to invest because of security concerns, while the Pakistani government lacks the necessary capital.

Providing the capital for hydel projects would have a number of benefits. Because civil works account for about 50% to 70% of the overall cost of hydel projects, these projects would provide jobs for unskilled labourers in desperately poor areas.

Additionally, each hydel project would provide the NWFP government with ongoing funds for development projects. Increased electricity production from hydel plants would not only help industries crippled by blackouts, but also reduce the huge cost of imported furnace oil.

The long-term solution
Provide financial support for education.

The Higher Education Commission (HEC) of Pakistan, set up in 2002 by General Pervez Musharraf, will likely be remembered as one of his most beneficial legacies. Between 2002 and 2007, annual funding for higher education increased from 4.3bn to 14.3bn rupees. Consequently, the number of university students jumped from 135,000 to 316,000.

According to a 2008 USAID report, HEC’s “progress to date has been remarkable – indeed, in terms of value added, better than any other developing country this team has reviewed over the last two decades.”

In absolute terms, however, less than 4% of college-age students in Pakistan are in higher education, compared to 11% and 20% in India and China, respectively. Pakistan, therefore, needs to spend a tremendous amount more, but it does not have those funds.

The Lahore University of Management Sciences (LUMS) is recognised as the most prestigious college in Pakistan. Above its entrance is a plaque stating that the construction of the main building was made possible by a USAID grant of $10m.

The thousands of graduates whose education was made possible, in part by the generosity of others, may well disagree with American policies. But knowing the source of their education’s funding, they are a lot less likely to hate the US.

Why is it then, that since its investment in LUMS, USAID has made no equivalent investments in higher education in Pakistan?

Pakistan today is not just a nation on the edge but the tipping point in a global struggle against extremism. By giving the right help, the world can save a lot more than Pakistan.

This column was first published by the Guardian on December 26, 2008.

Lawyers’ movement in retrospect

The Year 2008 is out. Can that also be said about the lawyers’ movement?

From one perspective, the lawyers’ movement marks a watershed in Pakistan’s history. Lest we forget, March 9, 2007 was not the first time a Pakistani ruler tried to get rid of an inconvenient chief justice. Musharraf himself disposed of Chief Justice Saeeduzzaman Siddiqui through his 2001 PCO while those with short memories would do well to remember the farcical events of 1997 when the PMLN goons chased Chief Justice Sajjad Ali Shah out of his courtroom, subsequently to be displaced through a controversial decision.

But July 20, 2007 was the first time that a united judiciary took a stance in favour of its independence. Moreover, the Supreme Court’s decision had only come about as a result of the brilliant political strategy adopted by Aitzaz Ahsan to take the Chief Justice’s case out of the courtroom and into the streets, creating for the first time, a mass movement in favour of the independence of the judiciary. That movement, in turn, created the political space for the Supreme Court to reject the attempted ouster of its Chief Justice.

So, in one go, the lawyers’ movement seemed to create not just a truly independent judiciary but also an enlightened and alert electorate, anxious to protect its civil liberties from being taken away.

Now look at events from the perspective of the cynic.

Almost 18 months after the famous decision of July 20, 2007, the once-vaunted forces of civil society have retreated to their customary apathy. The promised restoration of “all judges” has become a long-running farce which is not believed by anybody. The once united lawyers’ movement has splintered into various groups, with at least one large segment having decided that discretion is the better part of valour and the PPP cohorts having decided to accept senior positions with the government.

As for the activist component of the lawyers’ movement, the only activity which has occurred in recent weeks has been the cutting – amid considerable pomp – of a cake to celebrate the birthday of Iftikhar Muhammad Chaudhry. Most of the other judges who had earlier taken a stand for principle have reluctantly – and understandably – returned to duty rather than face a dreary life of exile from the bench. Even the declaration of emergency on November 3, 2007 has yet to be set aside.

So far as the independence of the judiciary is concerned, the less said the better. One newspaper recently broke a series of stories in which it was alleged, in graphic detail, that the daughter of Chief Justice Dogar had been illegally admitted to medical school and, perhaps more importantly, that Justice Dogar had “pathetically” begged [the reporter] not to print the story.

Tellingly, no contempt proceedings have been initiated against the newspaper but stories have instead emerged of the reporter receiving death threats. The honour of the judiciary was also not burnished when a learned bench of the Islamabad High Court purported to stay the investigation being carried out by the parliamentary committee looking into the matter. Instead, the stay order resulted in a near-unanimous revolt by parliamentarians of all stripes and the Supreme Court subsequently had to vacate the stay order while the matter was attempted – so far unsuccessfully – to be discreetly hushed up.

Given these divergent – and perhaps equally justified – viewpoints, how is one to come up with a consensus view? Does the judgment of July 20, 2007 represent a high-water mark of judicial activism or does it represent the beginning of a new era? Will the events of October 2007 and the challenge to General Musharraf’s candidature be seen as a cautionary tale or as an heroic epic?

The short answer is that no one knows. We are currently in the middle of a three-act drama in which the first two acts have played themselves out but the denouement has yet to come. Having said that, the lawyers’ movement has lessons for both the judiciary and the establishment.

The primary lesson for the establishment is that independence of the judiciary is now an unassailable public virtue. Note, this does not mean that the independence of the judiciary must be established in actual fact. To that extent, business can continue as usual. Instead, what it does mean is that the independence of the judiciary has entered the pantheon of political virtues which must be publicly respected, just like patriotism and financial rectitude, and that failure to provide sufficient respect will result in an adverse public reaction.

And while that may not be a particularly severe constraint on the powers of the judiciary, there are still limits which it would be inadvisable to breach. For example, several newspapers have carried stories to the effect that one of the most junior judges of the Sindh High Court is likely to be made the chief justice of the province as a consequence of his friendship with the President. There is no way to tell if such reports are correct but it would be a singularly unwise step for the PPP to take: such a gross infraction of accepted norms would only give fresh impetus to an otherwise defunct lawyers’ movement.

On the other hand, the lesson staring the lawyer’s movement in the face is that there are limits to what any judiciary – no matter how independent – can achieve. It has become an established pattern in Pakistan that a judiciary embarrassed by its earlier acquiescence before an illegal power grab tries to atone for its sins by taking up the mantle of populism. The problem with such efforts is that they plunge the judiciary into areas which it often knows little about. An occasional foray into such areas can be carried off: repeated expeditions into unforgiving territory, however, tend not to be successful.

The appropriate model for the judiciary now is the period during which Mr Justice Ajmal Mian was the Chief Justice (1997-1999). He took over as Chief Justice after the removal of Sajjad Ali Shah in extremely dubious circumstances and with the prestige of the judiciary at a marked low. His tenure was not marked by any overt conflict with the executive and yet it was also marked by a firm stance against executive excess, the most notable examples being the Mehram Ali case (in which military courts were struck down) and the Farooq Leghari case (in which the declaration of emergency by Mian Nawaz Sharif was held justiciable and the suspension of fundamental rights was overruled).

Zhou Enlai, the great Chinese leader was once asked his opinion of the French Revolution. His pithy response was that it was too early to tell. Much the same applies to the lawyers’ movement.

This column first appeared in The Friday Times issue of January 1, 2009