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

On a personal note

Tuesday, December 16, 2008

Share this story!

My grandfather was a spoiled young man. His mother died during childbirth and he lost his father at the age of 12, leaving him heir to a sizable fortune. Abbaji, as I later came to call him, responded to privilege by getting thrown out of 6 different universities. I am told that he was asked to leave Bombay University after he emptied a full commode on top of I I Chundrigar’s head.

Partition and 1947 were not kind to Abbaji. My father remembers tense nights in Patiala waiting for Sikh raiders, rifle in hand. His instructions were to shoot his mother and sisters first.

When the time came to flee, they joined millions of others taking trains out of India. But when their train pulled into Lahore, Abbaji was so sick that he refused to get off, asking only to be left alone to die. He stayed on the train until it reached the final stop at Jhang where he was offloaded by coolies. My grandparents settled there.

Abbaji had been educated by an English governess. My father went to school in Jhang squatting in the dirt, writing on a takhti. Having finally figured out the value of education, Abbaji drove his children hard: my father made it to Government College in the year 1952. At that time, Abbaji’s entire income was Rs500 per month out of which he gave Rs300 to my father and his elder brother, both of whom were at GC.

In 1955, my father was one of seven Pakistanis to win an engineering scholarship to England. His first few years there were rough, but by the end he had figured things out. One night he was attending a function for new students when he heard a pretty young lady ask where the bridge club met. He offered to take her there, and that is how my parents met.

My mother was born in Vienna, also the privileged child of rich parents. That wealth and its attendant privileges disappeared over the course of World War II.

When the war ended, my mother’s family was sheltered in what is now Slovenia. As the Balkans descended into chaos, her family decided that they would be killed if they didn’t escape. On the day after Christmas, 1945, my mother and her family loaded a horse cart with their most prized possessions and made their way down to the Austrian border. The bridge which marked the border was guarded so they planned to simply make a dash for it and hope for the best. Luckily for them, the guards were too busy celebrating to notice and all of them survived. In 1947, my mother’s family moved to England, where my grandfather had contacts from his pre-war days who were willing to give him a job.

My parents married in 1959 and their first child, my eldest sister, was born in England in 1960. In 1962, they decided to move back. My father’s mother wanted to disown him for marrying a non-Syed, non-Shia, non-Muslim, non-Pakistani girl. Abbaji told her that she now had a new daughter.

After the move back came another 5 children, four of whom were born in Wah Cantonment where my father worked in the Ordinance Factory. In 1965, he had just moved to a better paying job when war broke out. He volunteered back the same day.

In 1969, my parents moved to Lahore which is where my younger brother arrived. In 1981, they moved overseas, finally returning to Lahore in 1993. A month later, my father’s sister was killed in a tragic road accident, leaving behind an orphaned son. My mother announced that henceforth he would be her seventh child.

I mention all of this personal history for two reasons. The first reason is that in a week’s time, my family and I will be celebrating the 50th anniversary of my parents’ wedding.

Second, I cannot in all honesty say that I have faced anything like the tragedies and traumas which my parents confronted. I hope I never do. But the point is that humanity survives and thrives all the while. My parents are not public heroes, only private ones. Pakistan is full of people like them, people whose stories would be remarkable only if more people knew about them.

Our generation likes to feel that its problems are unique, and we are no different. Pakistan is full of merchants of doom these days, only too happy to believe that the end is nigh. I beg to differ. We spend so much time bemoaning our fate these days that we forget the resilience of the human spirit. Yes, times are tough, but the human race is tougher. I know that not just because my parents told me so. I know that because they showed me so.

Schizoid Nation

The people of Pakistan have been treated by their rulers for the past half-century with extreme suspicion, as if opening up the doors of this country to the rest of the world — especially India — would result in a mass exodus.My response: grow up

There are two ways to describe Pakistan for the geographically illiterate: we are either the country on the left of India. Or else, we are the country to the right of Afghanistan.

Unfortunately for us, both descriptions are equally true. We are a country which straddles a geographic and social fault line. On one side of the Indus, we find tribal societies who look westwards, people who think of the Durand Line as a historic betrayal and who are happier ignoring it. On the other side, we find settled agrarian societies which share thousands of years of history with their counterparts across the border in India.

In short, we are a schizoid nation. The problem is that the time has come for us to choose.

Before I explain my choice, let me first deal with the inevitable counter-argument: why pick a side? Are we not a proud nation of 170 million? Can we not be independent?

Well, duh.

Of course, we can be independent in political terms. But political independence and economic independence are two very different things. The United States is a politically independent country. But it is not economically independent. Neither is China. Or any other country we would want to be like.

Simply put, we cannot be economically successful while being cut off from the rest of the world. So far as I know, there is only one country which has fully embraced the idea that it should be entirely self-reliant in economic terms: North Korea. And between 1995 and 1997, up to 3 million North Koreans died as the result of a massive famine.

In short then, economic independence is not an option: the only reasonable choice is economic interdependence.

Ok, you may reply, but why does that require us to look eastwards?

The honest answer is that it does not. It is possible, in theory, for Pakistan to operate its economy in isolation from that of India’s. Indeed, we have been stubbornly trying that for more than sixty years. But there is a difference between stubborn and stupid and we crossed that line some time ago.

Right now, foreign investment into Pakistan has to fly in. Somebody sitting in New York or London or Dubai has to decide that he is going to take his money and risk it in Pakistan. And from wherever he is looking, that hypothetical investor has a vast array of international options available to him, most of which did not feature on the January 2008 cover of the Economist as “The Most Dangerous Place in the World”.

On the other hand, there is already a vast quantity of foreign investment sloshing around India. And if you, the foreigner, are already in Delhi, then extending your reach to Lahore is qualitatively different from building an investment there from scratch. Ditto for Karachi and Mumbai. You already have a ground operation in place: the only question is one of scale.

The issue is not just one of economics though but also of orientation. The people of Pakistan have been treated by their rulers for the past half-century with extreme suspicion, as if opening up the doors of this country to the rest of the world — especially India — would result in a mass exodus.

My response: grow up. Most of the people alive in this country were not alive at the time of Partition. Heck, most of them were not alive in 1971 either. All that they — and I, for that matter — have ever known is this country. We are here by choice and just because our rulers break into a cold sweat at the thought of open trade with India is not a good enough reason for them to mistrust the rest of us.

I realise that given the recent events in Mumbai, this is probably not the most appropriate time to be wishing for deeper links with India. But viewed from my admittedly privileged perch, it often seems as if there are now two kinds of people in Pakistan. There are the people who would be happy at a Rafi Peer performing arts festival. And there are the people who want to blow them up. Speaking as one of the festival-goers, I have a hell of a lot more in common with the people who just got attacked in Mumbai than the people who did the attacking. And I don’t think that our security establishment gets this basic point.

In the middle of all this anger and angst, today’s newspaper offers a ray of hope. At the time of the Mumbai massacre, there were more than 100 pilgrims visiting the Katasraj temple in Chakwal. As bullets began to fly back in India, they received call after call from their relatives, telling them to flee. They stayed, not just because they felt safe but because person after person, Pakistani after Pakistani, came up to them and commiserated with them. Those 108 pilgrims are going back saddened. But they are not going back infuriated with Pakistan. And they all say they want to come back.

Newsflash for the talking heads on TV: the people of Pakistan want peace with India. Get over it.

Don’t squirrel away the babes!

I first became involved with journalism in the summer of 1987 as a sub-editor at the Nation. After two weeks I was promoted/kicked out into the reporting room where I spent most of my time learning how to properly structure a Punjabi sentence (i.e., pick a close female family member, state something about her body and/or sexual proclivities, and finally, insert result into whatever it is that you actually wanted to discuss, which could be anything from economics to anthropology).

The reason I mention this ancient history (besides boosting my journo-cred) is because one of my first assignments as the junior-most sub-editor was to edit an APP wire story in which it was alleged that James Bond liked his orange juice shaken not stirred. I was 18 and green back then, but I wasn’t stupid. So, even I knew that James Bond being a true narr da bacha was not prone to drinking orange juice. Ever. However, work options being what they were, I dutifully subbed the piece and it appeared in the next day’s edition.

The point is that publishing a story as ridiculous as that required a degree of cluelessness among the reading public. You couldn’t get away with that kind of rubbish any more because today every seven-year old kid knows what James Bond really drinks. And if he doesn’t, it is going to take him five seconds before he Googles the info, and another ten seconds before he is checking out James Bond and Eva Green [or your favourite Bond babe] making out on YouTube.

The internet, in other words, gives us an incredible opportunity to share information. And it is time that we started using that opportunity.

Let me give you a simple example. In 2001, I was hired by a large consulting firm to do a report on the independence of the judiciary. Since I had ample time those days, I eventually produced a 150-page thesis which tried to explain why Pakistan’s judicial system suffered from certain problems and what could be done to reform it.

While researching my report, I came across the interesting fact that there was a large amount of research out there on the judiciary in Pakistan which was simply not accessible to the public. Indeed, the consulting firm itself had commissioned numerous reports earlier on the exact same topic, none of which was generally available. To the extent any of that work was available, it was entirely through luck or through personal connections.

To give one example, I had gone to a conference to present a preliminary draft of my findings when I started talking to one of my fellow delegates, a retired judge from Canada. Lo and behold, it turned out that she too had done a report on the judiciary in Pakistan for the exact same firm I was working for.

The firm that hired me was not unusual in this regard. It’s the same with most developmental institutions in Pakistan, big and small. There are hundreds of reports on Pakistan mouldering away in the archives of ADB and the World Bank. Ditto for UNDP, DfID, CIDA, JICA and the rest of the development agencies out there.

Between all of these agencies (and the firms they employ), hundreds of reports are commissioned on Pakistan every year. Some of them are good, others mediocre. But all are useful. And yet, there is simply no way to find most of these reports unless you are already aware of them. Indeed, even if you do a Google search with my name and the name of the consulting firm I worked for, you will find no copy of that report on the web.

This compartmentalisation of knowledge is asinine. As it is, we already have a tremendous problem in Pakistan because our entire policymaking system has been outsourced to aid agencies. I have no axe to grind against multilateral agencies and I really do believe that they are trying to do good for Pakistan: my point is simply that the work they produce cannot be squirreled away and hidden. What we are stuck with now is a system in which multiple agencies commission multiple reports on similar subjects, most of which then disappear from public view. This is not acceptable.

The good news though is that changing this system is relatively easy. Apparently, all the major development agencies are required to submit copies of their reports to the Economic Affairs Division of the Ministry of Finance. Ideally, the Federal Government should set up an electronic depository and make all reports available through the web.

More realistically, all that is needed is for the Ministry of Finance to make a rule saying that a copy of every single report submitted to the Economic Affairs Division by development agencies must be simultaneously placed on Google books.

Having all reports available on the internet for free is not going to fix poverty in Pakistan. But it is going to allow those trying to fix poverty to think smarter. And that’s a thought to which I hereby raise a glass of furiously shaken orange juice.

No vino, no veritas

I am sick and tired of hearing over and over that our laws are fine, that it is only their implementation which is wrong. Many of our laws are not fine. All of them need to be re-examined, many of them need to be updated and some of them need to be redrafted from scratch

I don’t know how to say this politely so let me jump right in: we are a nation of liars. I am not referring to our politicians and to promises promiscuously made and abandoned. No, I am referring to us, we the people of this glorious land, for it is a cold hard judicially recognised fact that Pakistanis (and Indians, for that matter) do not tell the truth.

One of the standard maxims of law drummed into the head of every young barrister is the saying falsus in uno, falsus in omnibus, which means “false in one thing, false in everything.” This principle of law goes all the way back to Roman times and it stands for the position that the testimony of a person who had been proven wrong about one thing is to be considered false in its entirety.

Thus, if a lawyer can show that a witness who claimed to have seen A and B gang up and beat C was false in that B was actually dead at the relevant time, the testimony of that witness cannot be used to convict A. This principle is still followed in England today. And in the United States. But not in Pakistan. And not in India.

In Pakistan and India, generations of judges have reluctantly been forced to deal with the fact that we do not tell the truth. Confronted with a lying witness, a Pakistani judge does not discard the entirety of that witness’s testimony: instead he “sifts the wheat from the chaff” and only discards those bits which he does not believe.

The reason why judges in India and Pakistan undertake this exercise is because of the fabled FIR. For those who don’t know, the term FIR stands for “First Information Report” which is filed under Section 152 of the Criminal Procedure Code, 1898. Legally speaking, an FIR is not even substantive evidence; instead, it is just a report which forms the basis for further investigation.

In reality, the recording of an FIR is a step with massive significance because it effectively requires the police to arrest the persons named in it. Legally speaking, the FIR is supposed to be a record of what an eyewitness to a crime actually saw. In reality, it is a document drafted by the victim’s family in close consultation with the local police officers, designed so as to incriminate as many of the “opposing side” as possible.

Let me give you an example. Suppose that Mr Innocent Bystander of Chak No 452, District Mandi Bahauddin finds a dead bullet-riddled body lying on a dirt road near some sugarcane fields. In theory, Mr Bystander should hotfoot it over to the nearest police station and record his statement saying, “I was going home from the field when I found the dead body of Mr X lying in the road.”

In reality, Mr Bystander (or the police) will inform Mr X’s next of kin and eventually the police will record a statement by Mr X’s younger brother/cousin/nearest non-incarcerated male relative saying something like the following:

“Mr X and I were going back to our home when A, B and C stepped out of the fields into our path. A shouted out that they would take revenge for the murder of our ancient enemy, B then shot my brother in the chest with a 12-gauge shotgun, Then they all disappeared into the fields, shouting that they had at last taken revenge and warning us not to take any action.”

Now suppose you are the judge hearing the murder case and the defence proves that A was actually in jail at the time of the alleged murder. What will you do? If you start picking holes in the web of evidence so patiently created by the dead man’s relatives, you will most likely exonerate the murderer. You cannot accept the FIR at face value and yet the dead man demands justice.

So far as I know, many judges deal with this conundrum by assuming that the family of Mr X will have learnt the correct facts through the village grapevine and that the most serious accusations (e.g., the fatal shot) will be levelled against the person most likely involved. B is therefore likely to be convicted of murder and the other two will be let off.

At this point you may ask, so what? All systems of justice are flawed. Why dwell on these issues?

The answer is that laws have consequences. Laws are a reflection of the values that we, as a people, choose to enforce. I do not know whether we were liars first or whether our laws encouraged us to become liars. But what we have now is a system which completely disenfranchises the individual in that whether or not he tells the truth is judicially irrelevant: the only truth which counts judicially is that which the official believes.

Little wonder then that our people (and our politicians) believe there is nothing wrong with lying. More importantly, this system also corrupts the relevant officials because people who deal day in and day out with lying litigants not unnaturally come to the conclusion that the masses are devious, untrustworthy and incapable of governing themselves.

The bigger picture point is that I am sick and tired of hearing over and over that our laws are fine, that it is only their implementation which is wrong. Many of our laws are not fine. All of them need to be re-examined, many of them need to be updated and some of them need to be redrafted from scratch.

Einstein defined stupidity as doing the same thing over and over again and expecting different results. We are not stupid. It is time we tried different things.

Invented Countries

All countries are invented. Some are just more invented than others.

Pakistan has been an independent country now for more than six decades. But every independence day, and this one was no different, is marked by a peculiarly morbid public discourse in which various talking heads either lecture us for going astray from our roots (and not emulating the Taliban) or else try and tap dance around their barely conceived belief that there is no particularly good reason for this country to exist.

My first answer is, and I apologise in advance for the profanity, who gives a damn?

My second, and more elaborate answer, is that we do not need to rationalise Pakistan. It exists. It is a fact of life. It does not need to be made part of a larger scheme of things. In any event, Pakistan is not any more intellectually conflicted or less predestined to exist than any other country.

Start from the point that the fundamental unit of human society is, duh, the human. With the exception of identical twins, all human beings are unique. So, whenever any two human beings decide to live together, they do so on the basis of a shared rationale. That rationale may be simple (a decreased likelihood of being eaten by sabre-toothed tigers) or it may be complex (life, liberty and the pursuit of happiness) but it is always a human construct. Which is to say, an arbitrary construct. And within the realm of arbitrary constructs, there is no discernible line dividing unions which succeed from those doomed to failure.

Take, for example, our perennial point of comparison, India. Churchill once said that, “India is a geographical term. It is no more a country than the Equator.” Churchill was absolutely correct, but only in an entirely trivial sense. Great Britain, for that matter, is equally a geographical term. The fact that it exists as a unified political entity has more to do with the vagaries of history than any predisposition towards unity amongst the Scots, the Celts, the Anglo-Saxons and their Norman invaders.

Perhaps the point becomes clearer when one looks at smaller unions. For most people, the first collective entity with which they identify is their immediate family. But families fight. Brother can turn against brother for the most trivial of reasons.

The same problem is visible when one looks at larger groups like “nations”. From the vantage point of Condoleezza Rice’s office, all the people of the NWFP look like one undifferentiated hostile mass.

Look more closely and those same people dissolve into Pashtuns, Balochis, Dards, Hunzakuts, Hindkowans and a host of other groups.

Focus on the Pashtuns and one learns that they are divided into four tribal confederacies, the Sarbani, the Batani, Ghourghushti and the Karlani.

The Karlani, in turn, are made up of eight tribes: Afridis, Waziris, Mahsuds, Khattaks, Tanolis, Orakzais, Dawars and Bangash.

And the Afridis, to take just one tribe, have a further eight sub-tribes, each of which is divided into clans, divisions, sub-divisions, sections of sub-divisions and what Wikipedia helpfully refers to as “minor fractions”.

The simple point being made here is that the human capacity for differentiation is unlimited. Some unions last. Some don’t. In the end, the only judgement is that of history.

Of course, while we wait for history to pronounce its verdict, there is an immediate problem to be addressed: how to hold together a nation of 170 million contentious souls?

The answer to that problem begins with the realisation that people differ, that people have always differed, and that people will always continue to differ. Once that fundamental principle is accepted, the quest to find the “one right answer” on which everybody can or should agree stands revealed as a fool’s errand.

Instead, the simpler way to proceed is to divide the search for a national ideology into two separate parts. The first part is the identification of the boundaries within which debate can take place. The second part is the search for a consensus on a particular issue within those boundaries.

So far as the first part is concerned, the answer is that we have already achieved that goal. The permissible boundaries of discourse are already settled by the Constitution of 1973. Battered and bruised that document may be, but there can be no doubt that Zulfikar Ali Bhutto’s greatest achievement remains the undisputed source of legitimate authority.

We come then to the second part. The answer here is that it doesn’t matter whether we agree or disagree; all that matters is that we agree on how to disagree. There is also no shame in acknowledging the fact that whatever answer emerges at this stage will be an arbitrary construct, liable to be reversed by the next regime.

All countries, as already noted, are invented. The successful ones are those which allow themselves to be re-invented.

This column appeared originally in the Daily Times.

Bravo, Senator Obama

Islam has room for intelligent people in it so it would be nice if the whackos out there would stop trying to take exclusive possession of shared beliefs

“The United States always does the right thing,” said Winston Churchill, but only “after exhausting every other possibility.”

If the history of the US-Pakistani relationship is anything to go by, the United States certainly seems to have explored every bad option, ranging from supporting dictators to threatening popularly elected leaders to benign neglect. My point though is not to mark all the missed opportunities and all the failed policies, but to note that if Senator Obama is elected, we may finally see a sensible US policy towards Pakistan.

For those of you who don’t know what I am talking about, Obama gave a major foreign policy speech a few days ago in which he made the following points.

* If the United States is serious in countering terrorism, it needs to focus not on Iraq but on Afghanistan;

* The US cannot succeed in Afghanistan without succeeding in Pakistan;

* US policies cannot succeed in Pakistan unless they benefit the people of Pakistan, as opposed to the Pakistan Army;

* That therefore, he supported and was co-sponsoring a bill to triple developmental aid to Pakistan and provide US$15 billion over ten years.

I obviously think this is brilliant but many people, both on the right and on the left, have screamed. The most violent reaction came from a local columnist who alleged that US aid was intended to “enslave” Pakistan. He then continued:

‘In the name of development, a huge amount of Westernisation will take place, leading to the erosion of Islamic values and coming into existence of a new class of citizens whose only concern will be the gratification of desires and fulfilment of bodily needs. For all individuals committed to the vision of Islam, this is a silent bomb that will explode in the coming decades.’

The above analysis is so wrong and in so many different ways that one hardly knows where to start. Briefly speaking though, the logical leaps embedded in his argument become clearer if his argument is summarised as follows:

Development = westernisation = “gratification of desires” = “erosion of Islamic values”

Every step of that logical sequence is wrong.

First, development does not mean “westernisation”. Lots of countries have developed without aping the West in every way.

Second, “western” society is not only about seeking the “gratification of desires”. Yes, the West is the land of Gucci and Louis Vuitton (not to mention nightclubs and pole-dancing). But it is also the land of Oxford and Cambridge, of Plato and Aristotle, of Homer and Shakespeare, of Rodin and Picasso. If all you can see in “the West” is consumer culture, then there is something wrong with you, not with the West.

Third, there is nothing inherently wrong with “the gratification of desires and fulfilment of bodily needs”. A human being has the right to live for shallow gratification, if he so chooses. Yes, he will be a sorry excuse for a human being but that is his problem. It is not your job to take care of his soul: he can do that for himself. More importantly, it is not your job to judge people on their spiritual failings: that privilege belongs to the Almighty.

Fourth, there is no one universally agreed set of Islamic values. Muslims spend a considerable amount of time explaining how Islam is not monolithic and that for every suicide bomber, there are a thousand gentle souls who only want to live in peace. That message gets comprehensively sabotaged by our would-be intellectuals who are only too ready to dress up their own particular prejudices as the only right way to live one’s life.

To summarise, development and Islam are not antithetical. Morons who cling to a vision of Islam in which the only modern possession allowed is a Kalashnikov are precisely the kinds of idiots responsible for our current situation. Islam has room for intelligent people in it so it would be nice if the whackos out there would stop trying to take exclusive possession of shared beliefs. And finally, our biggest problem right now is not silent bombs: our biggest problem is the kind of bombs which explode with a big bang.

To venture into jurisprudence for a minute, no one denies that we all act as if there is one right answer. But that does not mean that there is a rationally discoverable and identifiable right answer. Instead, we have to accept that whatever “right answer” we identify will be a human construct, one which will have developed, consciously or subconsciously, to meet social objectives. Those objectives change on a continuous basis because society remains in flux, not frozen in a time-warp. And therefore, the answers we create must also change on a continuous basis so that they do not become obsolete.

In his brilliant new book Descent into Chaos, Ahmed Rashid chronicles how the US decision to neglect Afghanistan led the Pakistani army into believing that its strategic interests lay in preserving the Taliban so as to keep the US dependent on Pakistani goodwill. Obviously, this was a move fraught with danger, but one whose consequences did not seem to have been appreciated by our friends in Aabpara. Those dangers are perhaps best illustrated by this (very old) joke.

Some years after the establishment of Khalistan, the fledgling state runs into economic trouble. In the Khalistani parliament, the debate is fierce. Ultimately, one Sardar Ji rises with the solution.

My friends, he says, the answer is obvious. We must attack America immediately.

His suggestion is met by consternation but he then explains. Look at Germany, he says, and look at Japan. Both of them attacked the US and both of them were defeated. But after defeating them, the US rebuilt them and made them strong.

The suggestion is now greeted with universal acclaim except for one elder who keeps his own counsel. Eventually the excited members of parliament realise that their sage has yet to speak and so they ask him for his opinion. At first he demurs, saying that Parliament has spoken and it must be respected. But when everybody insists, he finally unburdens himself to ask the key question, “Oi, jay assi jit gaye tey phair ki karaan gey?”

The answer to that question, i.e. what happens if we win, is visible in the chaos around us, in the large bands of our country which are not just ungovernable but actively hostile. What it shows, above all, is the folly of negotiating with our friends and allies by holding a gun to our own heads.

Every year, a group dedicated to appreciating the work of Charles Darwin honours those individuals who bless this Earth by finding particularly creative ways to kill themselves thereby preventing onwards passage of their clearly defective genes. My personal favourite is the story of the thief who tried to steal a car engine by slowly undoing each one of the bolts connecting the engine to the chassis while lying underneath the car. After he finished unscrewing the last bolt, the engine landed on his head, thereby causing him to earn his Darwin Award.

They do not have Darwin Awards for countries. Not yet anyway.

The Economics of Happiness

Pick up a brick and hold it out straight with one hand. After a minute, you will be very tired. If you last two minutes, your arm will feel like it is on fire. And if you can last three minutes, then you are Superman.

Now try picking the brick up and holding it out for ten seconds at a time. You will find that you can hold the brick, all put together, for a lot longer than three minutes. That does not make you Superman. But it does make you smart.

What goes for the body goes double for the brain. Use it intensively for a while and the time will come when you will need a break. And once you take that break, your mind will be like a freshly sharpened knife rather than a dulled blade; in other words, a heck of a lot more effective.

None of this is rocket science. I was taught back in high school that the most efficient way to study was to follow up 45 minutes of concentrated study with five minutes of goofing around. More pertinently, the two-day weekend has been a staple of western life since about 1900. And on July 3, 2008, the state of Utah became the first American state to mandate a four-day work week on the grounds that it would help save on energy and environmental costs while paying for itself through productivity gains.

Why then do we still persist with a six-day work week? So far as I can figure out, the answer is stupidity. Seriously, I fail to see any rational reason why we do not have a five-day work week. A five-day work week will help save energy. It will be good for the economy. And it will make people happier.

So far as the saving electricity angle is concerned, WAPDA has repeatedly lobbied, as per newspaper reports, for a five-day work week on the grounds that it would save up to a 1,000 MW of electricity. I have yet to see anybody disagree with WAPDA’s analysis. And, as noted above, the state of Utah (official motto: “industry”) agrees. Let us therefore take that particular argument as settled.

The more important question is this: if less electricity is being used because less industrial production is taking place, how does the economy benefit?

The answer to that question is that making money is not necessarily about making things. Instead, an increasingly large part of the global economy consists of providing services to people, rather than widgets. Tourism, in fact, is the single largest industry in the world, accounting for approximately 10 percent of world GDP.

Obviously, given current events in our picturesque Northern Areas, announcing a two-day weekend in Pakistan will not result in the arrival of hordes of dollar-waving tourists. But shifting to a two-day weekend will result in the creation of hordes of rupee-waving tourists. Give people an extra day to rest and not only are they more productive, but they spend their time doing things like shopping, travelling, eating and watching movies, all of which involve spending money. And on the off chance that somebody involved in determining national economic policy is reading this column (oh happy day), let me make this very simple point: it is a good, repeat, very good thing when Pakistanis spend money on services provided by other resident Pakistanis. Giving Pakistanis more time to spend more money on leisure services is therefore Also A Good Thing.

The final issue then remains that of happiness. Well, most people like spending time with their families. More family life therefore means more happiness. And for those who don’t like their families, more leisure time means more time to play golf. Or gulli danda. Or whatever. In any event, what’s not to like?

Well, according to one lady writing in the letters column of Dawn (May 20, 2008), a two-day weekend will only exacerbate “the poor man’s financial dilemma that has led to the frequent suicides”. According to her, the extra day at home will result in misery for the working man because it will “inevitably mean more expenditure that his family will end up indulging in.”

Sure. But speaking for the rest of us who are not tempted to commit suicide by virtue of increased exposure to our loved ones, may I again repeat: a two-day weekend would be a good thing. It is mind-bogglingly stupid that we refuse to adopt it.

A Parliament of Owls

A murder of crows. An exaltation of larks. A parliament of owls.

The English language is a commodious beast, packed with all sorts of strange words gathered from all corners of the earth. Take, for example, the multitude of terms available to describe more than one bird of a particular type. Some of them are noted above. But we also have a charm of finches, a deceit of lapwings, a lamentation of swans, a pitying of turtledoves, and my personal favourite, a murmuration of starlings.

Coming back to owls and parliaments, the term parliament comes from the French “parler”, which is the verb, to speak. Parliament is therefore a discussion or where one goes to speak. More specifically, since the Oxford Parliament of 1256, it has been the name given in England to that great institution of state which guides and counsels the sovereign in the exercise of power.

Parliament, then, represents the collective wisdom of the people. And since owls in western culture have long since been venerated as symbols of learning and wisdom — owls being the symbol for Athena, the Greek goddess of wisdom — the term “Parliament of Owls” flatters both Parliament and owls. Tellingly, the other phrase for a group of owls is a “wisdom of owls”.

The aim of this extended linguistic exercise is not to make the obvious point that in our culture owls are symbols of stupidity and not symbols of wisdom. Yes, calling somebody the “son of an owl” in Lahore is likely to be met with a different “son of” compliment. However, the point here is not that we also think our Parliament is full of owls but that it is important to have the right perspective — cultural, linguistic or otherwise.

I mention all of this because a few days ago, the leader of our provincial Parliament was sworn in after being elected unopposed. I have a lot of respect for Mian Shahbaz Sharif and am genuinely happy that he has become the Chief Minister of the Punjab. He did a lot of good things for Lahore earlier and demonstrated a serious commitment to public welfare. According to one famous (possibly apocryphal) story, he drove the then head of WASA at four in the morning to an especially deep puddle in the middle of a main road and turfed him out of his car to deal with the problem. Most importantly, he had the good sense to surround himself with some genuinely smart people, including people that I have subsequently come to know and respect.

After getting sworn in as Chief Minister, Mian Shahbaz Sharif gave a speech in which he went back to the favourite themes of the day, about how the dark deeds of eight years of dictatorship will soon be wiped out, and how President Musharraf remains the source of destabilising conspiracies.

My problem with Mian Sahib’s speech is that he makes me feel like a Nazi collaborator and I don’t like that. I can understand that after eight years in exile, Mian Shahbaz Sharif feels compelled to construct a narrative for himself in which he and his brother, like De Gaulle in exile, proudly held aloft the banner of a free Pakistan while the rest of his compatriots remained shackled and supine, crushed under the heel of a dastardly dictator. Cue the music from “The Great Escape,” as the Mian Sahibaan jump the walls of Attock Fort on a stolen motorbike.

But, the truth of the matter is that we did not spend the past eight years suffering in extreme agony. Yes, General (now President) Musharraf made some really dumb mistakes. Failing to provide for growing electricity demand being Exhibit A. Firing a popular chief justice, showing himself in military uniform while firing the chief justice, and then having the chief justice physically mauled before an independent media being Exhibit B. But go back ten years and we also had a prime minister then who thought assaulting the Supreme Court was a good idea. So, let us not forget that we all make mistakes. Let us, instead, find a different perspective.

From my point of view, the operative fact is that nobody forced Mian Shahbaz Sharif either to become a member of the Provincial Assembly or to become Chief Minister of the Punjab. It is a job that he has sought. And it is a slot which, I repeat, I am happy to see him occupy. But, having attained his goal, it does not behoove him to spend precious time whinging about the inequities of the past. I want my leaders to tell me how things are going to get better. I want them to get cracking. I do not want to them to act as if they had campaigned for the role of Chicken Little.

Mian Shahbaz Sharif today has an unparalleled opportunity to put his undoubted talents to good use. Much has been done in the last five years — whether he cares to acknowledge it or not — but much remains to be done. If he makes the most of this opportunity, then someday we too may be able to use the phrase “parliament of owls” as a compliment and not as an insult.

This too shall pass

A few days ago, a man by the name of Joseph Fritzl made the following claim, “I am no monster.”

In the case of most people, such a claim would not be contentious. In the case of Mr Fritzl, this claim is extremely dubious.

In 1977, Joseph Fritzl started construction on an elaborate cellar in his house complete with remote-controlled steel doors. Subsequently, he imprisoned his daughter in that cellar and over the next few decades he raped her repeatedly. Eventually, she had seven children, three of whom were kept with her underground their whole lives, while the remaining four were brought up by Fritzl and his wife.

Some weeks ago, one of the children fell ill. When Fritzl took her to the hospital, it set off a chain of events ultimately culminating in the discovery of the underground prison and the release of all the remaining children and Fritzl’s daughter.

I come back now to Fritzl’s claim of not being a monster. In an interview, Fritzl claimed that he was being unfairly portrayed by the media because nobody mentioned the fact that he had kept his family alive. “I could have killed all of them,” he said, “and no one would have known. No one would have ever found about it.”

I mention this story because it is an extreme illustration of a universal truth: nobody ever thinks that they are a bad person. At the end of the day, no matter what they might have done, everybody always manages to justify their actions.

This fundamental human truth is worth keeping in mind because given the impasse in London, we will see a fair amount of finger-pointing over the next few days. Accusations will be hurled. Recriminations will be made. Names will be called.

Tomorrow, we will all pass judgement on who is at fault. History may or may not confirm that judgement. But in the meantime, we need to stop trying to convince the other side that they are wrong: even monsters don’t believe they are monsters.

What then are we supposed to do in the meantime? One time-honoured remedy for depression is, of course, to watch the entire oeuvre of Monty Python; hence the headline. Remember also that even if the coalition survives, salvation (or universal prosperity) is not around the corner. Instead, we will have to wait while our new rulers learn on the job what it is that they are supposed to be doing.

The last observation is based, in part, on the announcement by the current foreign minister, Shah Mehmood Qureshi, that he is setting up two task forces, one of which will be asked “to determine the future direction of foreign policy”. Since the PPP has not been in power since 1996, one would have thought that 12 years would have been ample time to reflect upon “the future direction of foreign policy.” Apparently not.

I don’t mean to impugn Mr Qureshi’s credentials as foreign minister. If anything, he deserves credit for taking public steps to redress the evident lack of policy-making expertise in his domain. What I do want to point out is that there is no system in place which ensures that matters of public policy are examined and understood by politicians before they are placed in positions of power.

This is simply inexcusable. Pakistan may or may not be able to afford the collapse of the current coalition but it certainly cannot afford a system in which whoever comes to power is required to learn on the job.

There are two ways to address this problem.

The first method, as used in the United Kingdom, is to have a “shadow cabinet” made up of senior members of the opposition, each of whom is given a particular portfolio to handle. The shadow minister then learns what the specific issues facing his ministry are so that when his party takes power, he knows what to do.

The second method, seen more in the United States, is to have an entire ecosystem of policy think tanks and lobbyists, who concentrate on specific areas of public policy. In this way, when a new government or administration takes over, it has the option of selecting experts of its choice, or of picking a particular policy from the options on offer.

In the case of Pakistan, the first option is clearly unavailable. To begin with, we have yet to reach the point where we have a stable two-party system, let alone the point where our political leaders would be comfortable enough nominating a particular person as the presumptive minister of a particular ministry. Those with long memories may recall the less than enthralling process by which the current Prime Minister of Pakistan, not to mention the rest of his cabinet, was selected through an extended session of eeny, meeny, mina mo.

This, of course, leaves us with only the second option. Unfortunately, there are two fairly substantial problems with the universe of policy experts available in Pakistan. The first problem is that there are not very many policy experts available. The second problem is, that with some very limited and honourable exceptions (i.e., Shahid Kardar), those policy experts don’t know very much.

Clearly then, we have a serious issue. Equally obviously, we need a serious response.

It has been agreed by all and sundry that the next round of international aid needs to focus not on providing us with military equipment but on improving social conditions. May I suggest that instead of sending us “experts” to tell us what to do, the West helps us to grow our own experts so that we can figure out what to do. So if there is somebody out there reading this with lots of money to spare, here is my message in a nutshell: spend some serious bloody money developing a good indigenous think-tank for public policy. Note, I said think-tank: we already have tanks, both home-grown and imported.

As we wait for our think-tanks to grow, what all are we supposed to do? Well, Monty Python’s movie, the “Life of Brian” ends with our hero, Brian, being wrongly crucified by Romans. But does he ever despair? No. Instead, he kicks up his heels — on the cross! — and sings, “Always look on the bright side of life…”

And so, gentle readers, do not despair. This too shall pass.

The writer is an advocate and can be reached at laalshah@gmail.com

Rule of Law v. Rule by Law

The Supreme Court of Pakistan has recently held that the graduation requirement for members of Parliament is unconstitutional. Since the Court has yet to release the detailed grounds for its judgement, an analysis of the merits of the decision is impossible. But there are many other things about the decision which can be discussed.

The first point to note is that opposition to the graduation requirement was led by the current Attorney General who vigorously, and publicly, denounced the requirement as “discriminatory”. In normal circumstances, Government lawyers vigorously defend all legislation, even when it is patently asinine. But in this case, the learned Attorney General opposed the law, even though that law had been validated by Parliament through a constitutional amendment and had already been upheld by a full bench of the Supreme Court. This newly found independence is truly admirable. One can only hope that the learned Attorney General remembers to be as independent and as solicitous of our rights when faced with other, equally tough cases.

A more interesting point with respect to the graduation decision was raised by my friend Clark Lombardi, currently visiting Pakistan on a research fellowship. He observed that while there is considerable talk in Pakistan of the “rule of law”, what one sees more in Pakistan is “rule by law”, i.e., the compulsion felt by our rulers to have their sins laundered through the judiciary.

The question then is this: is “rule by law” necessarily a bad thing? I am not so sure.

On the one hand, it is very clear that a judiciary which allows itself to rubber-stamp politically expedient choices divests itself of all legitimacy. At the end of the day, as per Dworkin, a judge or a court is entitled to respect only to the extent its decisions are based on, or consistent with, generally accepted principles of law and morality. Political expediency is certainly not a recognised ground for judicial decision-making. And the graduation decision, whether right or wrong, has certainly brought joy to Zardari House.

On the other hand, the fact that a judge should not make politically expedient decisions does not mean that a judge should operate in a vacuum. Law is not a platonic ideal to be adhered to irrespective of ground realities. Instead, it needs to be remembered that law is ultimately only a means to social ends.

The above argument certainly does not justify the Supreme Court’s latest decision. But it is very much something to consider when trying to determine how judges should decide cases.

Take, for example, the standard relationship between the Qazi and the Caliph. When the Caliph du jour had succeeded in making himself master of his domain, his first order of business was to obtain benediction from the local ulema. The relationship which therefore developed over centuries was one of extreme convenience in which the ulema rubberstamped all decisions of the Caliph in exchange for being allowed to preen in a gilded cage. The further consequence of this happy symbiosis was that Islamic law — as guarded and defined by the ulema — lost all contact with reality and became entirely an academic product.

Today, the consequences of this detachment are evident. Islamic scholars — whether liberal or fundamentalist — are all united in their belief that law is an abstract product, a platonic ideal: the fact that a law does not work or produces absurd consequences is simply irrelevant.

To take one concrete example of this detachment from reality, Justice Wajihuddin in the Aslam Khaki case noted that just because there was no historical precedent for an interest-free banking system did not mean that such a system could not work. In short, all the former Justice knew was that this was the way it was supposed to work: whether it actually did work was not his problem!

The point being made here is that judicial acknowledgment of political realities is not always a bad thing. In 1954, the United States Supreme Court held in the landmark case of Brown v. Board of Education that segregation was illegal and unconstitutional because separate could never mean equal. But having found that segregation was illegal, the Court did not proceed further to direct the complete desegregation of the US with immediate effect. Instead, the Court directed desegregation to proceed with “all deliberate speed”.

In today’s brave new world, the judiciary must shoulder a significant part of the burden of ensuring our collective survival. A judiciary which sees its role as providing convenient solutions to inconvenient problems is hardly worth respecting. But we forget at our peril that a judiciary which chooses to live in an ivory tower is not much better.

Monkey see, monkey no like

As our new leaders struggle with the burdens of their responsibilities, they would do well to remember the story of Pandora’s Box. Everybody remembers how Pandora disobeyed her instructions and let loose all the evils of the world. People forgot that in compensation they received Hope

Imagine you are a monkey being offered a grape in exchange for pressing a lever. I imagine you would be a happy monkey.

Now imagine you see another monkey who is also being offered goodies in exchange for pressing a lever. Except, that the other monkey gets two grapes for doing what you did.

Back to you. Now, you are an excited monkey. You press the lever again and you get … one grape. What do you do?

It turns out that in a significant majority of cases, what you do is throw a complete tantrum and chuck the grape back. What you want is what the other monkey got. And if you don’t get it, you are not a happy monkey.

As the father of two very argumentative children, I can personally testify that the argument most often used by kids to express their disapproval is, “It’s not fair”. Fairness, it seems, is hard-wired into our brains so much so that even monkeys (and little children) have an instinctive regard for equity’ more importantly, an instinctively angry response when they do not see justice being done.

The problem, of course, is that life is not fair. Some of us are born with more — more money, better looks, better luck et cetera. Some with less. More importantly, the history of the 20th century proves that trying to make everybody factually equal only winds up reducing most people to poverty, but that allowing the uninhibited pursuit of profit increases aggregate social wealth tremendously. On the other hand, aggregate wealth and average wealth are two very different things. And if the gap between rich and poor is allowed to grow too big, people react in much the same way as the offended monkey in the science experiment, which is to say violently.

How then to reconcile the competing demands of economics and ethics?

I wrote some weeks ago how our society is marked by a zero-sum perspective in which one person’s gain is seen as another person’s loss. By contrast, prosperous societies share a belief that one person’s gain is only just reward for that person’s efforts. The question is, what makes different societies adopt a non-zero approach as opposed to a zero-sum approach?

I think one very important factor in that answer is the quality of justice in a society. Part of growing up is the gradual realisation by people that not everything always works out for the best. Or as beautifully captured by Yeats in his poem, “Why Should Not Old Men Be Mad”:

Some think it a matter of course that chance

Should starve good men and bad advance…

Young men know nothing of this sort,

Observant old men know it well

What softens the blow then is the belief that even if there is an imperfect justice at work, there is at least some justice out there to be found. However, if faith in justice disappears, it takes along with it a hope in a better future, leaving behind only a seething, sullen mass of resentments.

The point then being made is that the provision of justice, or more accurately, the hope that justice is available, is a very important factor in the health of a nation. We all know that we live in an imperfect world full of imperfect humans. And we also know that we are destined to live in a world of inequalities. What makes that inequality palatable is the belief that with hard work we can all rise above our circumstances. In the absence of a functioning and well respected system of justice, no such belief is possible. An independent judiciary therefore is not just important as a check on an arbitrary executive: it is important as a guarantee of a minimum degree of equity in society.

As our new leaders struggle with the burdens of their responsibilities, they would do well to remember the story of Pandora’s Box. Everybody remembers how Pandora disobeyed her instructions and let loose all the evils of the world. People forgot that in compensation they received Hope.

In the absence of an independent judiciary, there can be no hope for justice. And without hope, the only thing we are left with is all the evils of the world.

The writer is an advocate and can be reached at laalshah@gmail.com

The Architecture of Justice in Pakistan

All buildings are statements. All government buildings are government statements. And all court buildings are statements reflecting what the men in power think about courts.

Take, for example, the great High Court buildings in Lahore and Karachi. Both buildings were built by the British at about the same time (late 1800s). Severe, imposing and neo-classical in form, the buildings present a massive and powerful face to the public. In each case, the public face of the building allows entry to judges and other officials only. The entrance for the ordinary people is not on the main road, which the buildings face but on the opposite side.

The statement that the High Court buildings make is a reflection of the best and worst features of the colonial ethic. The majesty of the law is publicly proclaimed and publicly upheld. But at the same time, the distinction between the rulers and the ruled is there for all to see. The public face of the High Court is accessible only to those who wield power; everyone else who comes to the court comes as a supplicant.

The statement made by the colonial High Court buildings is easily contrasted with the statement made by the building which houses the US Supreme Court. The US Supreme Court building is a simple neo-classical structure which faces one of the main avenues in Washington DC and sits on an elevated plinth approached by a series of steps. If you climb up those steps, you come to the main door of the court and if you keep on walking straight, you will immediately enter the main courtroom. Continue walking straight and you eventually reach the podium where, if you are so qualified, you can address the nine judges of the Supreme Court of the United States of America.

In symbolic (and actual) terms, the US Supreme Court faces the street. The rostrum from which lawyers address the court lies in a straight line from the public road. It is a building which shows that the basic function of the court is to help the citizen and that the judges are there to serve the public. It is the judges who enter from the side entrances, not the public. It is the judges who serve the public and not the public that serves the judges.

One may say that it is unfair to gauge Pakistan’s rulers on the basis of buildings inherited by them. To get a proper appreciation for what our democratic (and undemocratic) rulers think of justice, we need to look no further than the white marble mausoleum which houses the Supreme Court of Pakistan.

Like the US Supreme Court Building, the Supreme Court of Pakistan sits on an elevated plinth facing one of the main roads in the nation’s capital. Like the US Supreme Court, there are a series of steps leading from the main road to the entrance. Behind the impressively carved and decorated entrance door lies a great vaulted hall from which one can access all of the major courtrooms. But that is where the resemblance ends.

In the case of the Supreme Court of Pakistan, the steps are not open to the road. Instead, there is a fence and a gate, across the steps, that is permanently locked. The door which lies at the end of those steps and which faces the street is also permanently closed. The great hall which lies on the other side of that locked door is not a public space, but a space reserved for the court’s own use, a place where one is occasionally served tea and sandwiches at the receptions, references and other functions which dot the court’s calendar. And even if you do make it to the great hall, the entrances to the courtrooms from the great hall are not public entrances. Those are doors reserved for judges and open out immediately behind their desks. No ordinary member of the public can enter through them.

The difference between our colonial rulers and our self-elected (or self-appointed) rulers is therefore simply that we as Pakistanis feel the need only to acknowledge the public, not to actually accommodate them. The public entrance for the Supreme Court of Pakistan therefore lies hidden on the side of the grandiose public façade.

The first reaction of the unwary citizen who first enters the Supreme Court of Pakistan is that of confusion. The entrance opens up into a modest atrium but with no sign of a courtroom. If our citizen wants to go to the main courtroom, this is how he gets there:

• Enter court building and continue straight until T-junction.

• Turn right at T-junction, go straight, then walk around a strange triangular protrusion and continue straight.

• After about another 15 yards, turn left towards stairs and then make a U-turn to go up the stairs.

• At the top of stairs make another U-turn and walk across empty floor space to get to doors leading into main courtroom.

• Make another U-turn to get into courtroom passageway and then finally turn right to enter courtroom.

We cannot blame the British for the design of the Supreme Court building. And even though the Supreme Court building was designed by a Japanese architect, we cannot blame the Japanese either. The poor architect who won the competition to design the building saw his design suffer so much at the hands of the aesthetes walking the corridors of power in Pakistan that he gave up in frustration and went home. Rumor has it that in the original design, the grand entrance hall was meant for public access, not for judges only. Obviously the Japanese needed to be educated into the realities of power in Pakistan.

At the time of independence, any right-thinking Pakistani would have been justified in feeling dissatisfied with the courts of his time. Today, we remember those days and those designs with fondness, but even the buildings which we have inherited appear destined to end up in the dustbin of history.

A year ago, portions of the Lahore High Court building were demolished. The demolition was stopped after a public outcry and subsequently a group of architects met with the High Court authorities in order to preserve the façade of the building and also accommodate the concerns of the High Court. For many months, the building remained derelict. Two weeks ago, however, the targeted wing of the old Lahore High Court building was demolished in an overnight maneuver at the behest of the High Court authorities. Some sources say that there may be plans to subject the opposite wing of the court building to the same fate in due course.

All buildings are statements. All government buildings are statements about power. All court buildings are statements by those in power about the nature of justice. Draw your own conclusions as to what the demolition of the Lahore High Court represents.

This article appeared in The Friday Times on September 16, 2005

Full Circle at 60

Nine months up, nine months down. After women give birth, it is normal for them to assume that the various hormonal and physiological changes they have experienced will be reversed instantly. Unfortunately, that is never true. Some women lose their weight within a few months, some never do. But for the vast majority, the simple truth is that the changes experienced by their bodies take as long to disappear as they did to accumulate.

What is true for the human body is equally true for the body politic. Pakistan today is a body which has experienced sixty years of traumas. Those traumas cannot be reversed through the single decision of any court, no matter how cathartic or wonderful that decision may feel. Similarly, the problems with Pakistan’s democracy cannot be reduced to the absence of a credible leader and as such cannot be fixed through the decorative transplantation of a media-genic personality, in the same way that placing a cherry on top of a dessert dish is supposed to complete it.

No, we are a lot further away.

Much of the optimism in the air these days relates to a newfound faith in the independence of the judiciary. Yes, an independent judiciary is a wonderful thing. But it needs to be remembered that back in 1947, we also had an independent and competent judiciary: and look how far that got us.

The intention here is not to be cynical but to simply note that an independent judiciary requires protection to ensure that it remains independent. If we do not seize this moment and make fundamental changes, the opportunity presented by this brief shining moment will be lost. I have berated my elders enough for not doing enough to protect and preserve the Pakistan that they inherited. Sixty years from now, I would rather that the Pakistanis of 2067 did not look back at my generation and condemn us for our failures.

What changes then are necessary to protect and preserve the independence of the judiciary?

First, judges must be paid not just well but extravagantly well. If high court judges today were paid the equivalent of their 1899 salaries, they would be getting about Rs 6 million a month! That amount may be excessive but the fact remains that all judges in Pakistan are grossly underpaid.

Second, we have to move away from a judicial system in which all administrative powers are concentrated in the various chief justices of the four provincial high courts and the supreme court. The elevation of the chief justice to an exalted position, along with the concentration of powers in his hands, inevitably leads to problems. What we need instead is a system in which a committee of the five senior-most judges (both at the high court and the supreme court level) oversees all major administrative decisions, including appointment, discipline, transfers and the fixation of cases. Not only will this add transparency to the workings of the judiciary, but it will make it considerably more difficult for the executive branch to play one judge off against another.

But will that be enough? Again, the answer is no.

An independent judiciary will make things better but it will not make things right. In the first instance, rule by the judiciary is an inefficient way to proceed. To quote Bentham, judge-made law is the equivalent of teaching a dog by waiting for it to make mistakes and then beating it.

There is also a deeper philosophical point at stake. An independent judiciary may well be good at punishing people but from one perspective, the punishment of criminals does not represent the triumph of the law. In this view, the rule of law is only truly respected when those who are bound by the law internalise its demands and obey it unthinkingly and unhesitatingly.

Let me try and restate this point. If law is regarded as the effective punishment of violators, a good society consists of a state in which there is a traffic policeman at every corner, meting out swift justice to every crosser of a red light. But if law is regarded as the internalisation of rules, a good society is one in which people stop at red lights without checking to see if there is a policeman (with motorbike) at that particular corner.

What then should we do? In my view, the fundamental responsibility for a political system, which honours and serves the people of Pakistan, rests on the shoulders of our elected representatives. Our elected representatives, however, remain victims of a zero-sum mentality and see all progress under the aegis of a rival as a threat to themselves. During the recent emergency scare, a senior opposition leader was asked if the government was deliberately creating confusion. His exasperated response was that to confuse is the job of the opposition.

The fact is that the opposition needs to also be constructive. With the single – and extremely honourable exception – of the PPP’s support for the Women’s Protection Act, I cannot recall a single instance over the past five years in which any member of the opposition took any constructive parliamentary step. It is an undeniable fact that the current assemblies have been in office for almost five years. During that period, there was no restriction on the members of the opposition from participating in lawmaking. Had they wanted to, they could have introduced bills before Parliament. Most likely, those bills would have failed to pass. But at least, all those elected representatives would have earned their keep. Last time I looked, members of the honourable opposition got paid as much as members of the treasury bench for being parliamentarians.

Today’s Pakistan presents an opportunity in which to consolidate the basis for a flourishing democracy. Taking advantage of that opportunity requires taking a sensible and long-term approach, not just a choice of different heroes to worship.

The most important task facing Pakistan today then is to work out a power-sharing solution between those who have power and those who want power. Such a solution, like most compromises, is unlikely to look pretty. But unless we want to repeat our mistakes, we have no option but to take the long view.

This article appeared in The Friday Times on August 24, 2007

Musharrafland v. Constitutionland

General (now President) Parvez Musharraf has declared martial law (twice), amended the 1973 Constitution (twice), gotten a clean chit from the Supreme Court (twice) and not been prosecuted on any charges (so far). Last time round, General Musharraf’s actions were validated by a constitutional amendment. This time round, President Musharraf says he does not need any constitutional amendment to protect himself. The question is: is he correct? And are the new amendments “legal”?

Neither question is simple. In both cases, the answer is: “it depends.”

First, some jurisprudential theory. According to Hans Kelsen, law consists of a hierarchy of norms. At the top of that hierarchy sits the ‘grundnorm’. Unlike the other norms, the grundnorm is simply the fundamental assumption on which all other norms are based. So prior to November 3, 2007, the grundnorm of Pakistan was not the 1973 Constitution: instead, the grundnorm was the assumption that the 1973 Constitution should be obeyed.

Post-November 3, 2007, the effective grundnorm of Pakistan is no longer the assumption that the 1973 Constitution should be obeyed. Instead, the effective grundnorm is the assumption that whatever Pervez Musharraf does is a valid law-creating fact. The answer to the questions asked therefore depends entirely on which grundnorm one chooses to refer to.

Let me try and make the same point in a simpler way: we do not live in a country any more which is governed by the 1973 Constitution of Pakistan. Instead, we are currently governed by the will of one Pervez Musharraf as expressed in a Provisional Constitutional Order (and amendments thereto). It is currently the will of Pervez Musharraf that this country should, subject to certain exceptions, be governed generally in accordance with the 1973 Constitution. But at the end of the day, it is his will that counts.

Our current legal order, call it ‘Musharrafland’, is very different from the old legal order which existed before November 3, 2007 (call it ‘Constitutionland’). In Musharrafland, power creates its own reality and its own legitimacy. In Musharrafland, the Supreme Court has already validated the events of November 3, 2007. And in the world of Musharrafland, no further validation is necessary.

However, the validation given in Musharrafland is no validation so far as Constitutionland is concerned. Under the 1973 Constitution, the only true sovereign entity (for practical, and not theological, purposes) is the electorate of Pakistan. If that electorate, through its elected representatives, chooses to validate an act through a constitutional amendment, then that act is protected from all further challenges. But in the absence of a constitutional amendment, the judgement of the Supreme Court remains open to review. Theoretically, even a civil judge third class can simply declare the judgement of the Supreme Court to be without jurisdiction and declare the events of November 3, 1977 to be entirely illegal. More realistically, a Supreme Court bench of equal or greater strength can declare the earlier judgement to have been incorrect.

To return then to our questions, the answers are as follows. In Musharrafland, no further validation through a constitutional amendment is necessary. And in Musharrafland, what happened on November 3, 2007, is entirely legal. But the same is not true in Constitutionland. In Constitutionland, the ‘emergency’ and the PCO remain open to challenge and the new amendments remain illegal unless and until validated by a constitutional amendment.

The unfortunate point to note though is that the choice of grundnorms is not a moral choice but a factual choice. Nobody writes down the grundnorm: it has be deduced by examining the actions of people. For example, there may still be people who believe that the Iranian Revolution of 1979 was completely illegitimate. But it makes little sense, as a legal scientist, to ask whether the current actions of the Iranian government are legal or illegal by referring to the pre-1979 legal order.

The answer to the above argument lies in the term ‘legal scientist’. The people of Pakistan are not just spectators in the ongoing drama, they are participants. Similarly, the judges of Pakistan are not just passive victims of an inexorable fate. They too get to decide which script they want to live.

But if we turn to the people of Pakistan, the quality most in evidence is widespread apathy. To continue the previous metaphor, most of the people in Pakistan seem unperturbed by the fact that they are now living in Musharrafland and not Constitutionland. In fact, some days ago, even Justice (Retd) Wajihuddin conceded during a speech that the public at large was “least bothered” by the issue of the judges and that the masses needed to be educated with respect to the virtues of an independent judiciary.

Education may well be the ultimate answer but as the saying goes, kaun jeeta hai teri zulf kay sur honay tuk ? So far as I can see, the future is depressingly obvious: Pervez Musharraf has power but no legitimacy. The incoming parliament will have the power to grant legitimacy in exchange for a share of power. We should not be too surprised if a deal is made.

This article appeared in The Friday Times on December 28, 2007.

Penny Wise, Pound Foolish

The people of Pakistan do not elect representatives or employ civil servants to suffer on their behalf. Instead, we vote for people so that they can make intelligent, informed choices about matters of national interest

In his first speech as prime minister, Yousaf Raza Gillani introduced a number of austerity measures. So, the budget of Prime Minister House is going to be cut by 40 percent; all ministers will henceforth travel economy plus on domestic flights, rather than business class; and, no minister will travel in a car of more than 1600 cc.

Frankly, my dear, I couldn’t give a damn.

Actually, I do. This pseudo-austerity is not only irritating but counter-productive. And it is high time we got past our neuroses in this regard.

This hypocritical obsession with ostensible cost-cutting is irritating because it serves no useful purpose. In fact, it is harmful because it reinforces the notion that instead of being normal humans, our elected representatives, judges and bureaucrats should all be exemplars of the human race, some mystical combination between Mother Theresa and Mohandas Karamchand Gandhi.

Do such people really exist? Yes, they do. Do some of them work for the Government of Pakistan. Yes, they do. The famous Masood Khaddarposh was one. Justice Cornelius was another. And Justice Jawad Khawaja was most certainly a person who could not give a rodent’s backside about the trappings of his office.

OK, but not every person wants to be a Khaddarposh. Some people want to be Armaniposh. And I think they should be.

Pakistan is not a poor country. It has lots of people who are poor but that is not the same thing. More importantly, to the extent we have lots of poor people in this country, they will only stop being poor if the government is run by smart people who make smart choices about public policies.

Newflash No. 1: Smart people like to be paid for being smart (unless they are patriotic heroes).

Newsflash No. 2. Patriotic heroes are in short supply.

Newsflash No. 3: It costs a lot less to pay for a few nice suits than it does to fix the mistakes made by dumb people.

The clearest example I can give of the country being hurt by decisions which were not “snart” (to use my seven-year old son’s vocabulary) was WAPDA’s decision (back in 2002) to not buy hydel energy at 4 c/kwh on the basis that the hydel developers were asking for too much. This was so even though WAPDA’s own marginal cost of electricity was 6.5 c/kwh.

Let me put the above point in plain English.

Back in 2002, every additional unit of electricity cost WAPDA 6.5 cents because that is what the IPPs charged. At that time, there were other people who wanted to build dams and sell electricity to WAPDA for less than 6.5 cents/unit. In fact, they were only asking for 4 cents/unit. WAPDA refused to buy electricity from these hydel developers on the basis that they were asking for too much. As a consequence, WAPDA continued (and continues) to buy today electricity from the IPPs for a lot more than 4c/unit.

Some day, dictionaries will mention this episode as an illustration of the phrase: to cut off one’s nose to spite one’s face. In the meantime, we are suffering the consequences.

Please note that as a general rule, I have great respect for bureaucrats, especially senior ones. All I am saying is that they should be paid what they deserve, which is to say salaries competitive with the private sector. Judges should get paid what the top lawyers make. And Parliamentarians should get paid well too.

The other point is that these so-called austerity measures save nothing. The amount of money saved by sending cabinet members in economy plus is miniscule, especially as those same cabinet members will continue to travel business class on international flights. And how much money are we actually going to save by serving one dish less at state functions?

The people of Pakistan do not elect representatives or employ civil servants to suffer on their behalf. Instead, we vote for people (and hire bright young DMG chaps) so that they can make intelligent, informed choices about matters of national interest. If we refuse to pay them competitive wages, our chances of getting the best possible people are considerably reduced. This is not rocket science: Hazrat Ali (RA) wrote 14 centuries ago that judges should be paid well!

So go ahead, Mr Prime Minister. Use that Mercedes. Travel in your private jet. Wear Armani suits. Just make sure you get the big things right.

The writer is an advocate and can be reached at laalshah@gmail.com

Pedigreed bigotry

Since Atif Khan did not bother to lay out the conclusions implicit in his article (“Shariah and Sufi tariqah,” Daily Times, March 20) let me do the honours. Cutting through the fat of Mr Khan’s academic verbiage, his basic point is that the attitude towards Shias of his teacher, Sheikh Nuh Keller, is not just plain old bigotry but in fact highly pedigreed bigotry. Thus when Sheikh Nuh refers to Shiaism as “bid’a” he is not just giving his own opinion, but the opinion of “the entire lineage of Sufi scholars who ascribe to precisely the same views”.

What I find most disagreeable here is that the article lacks the courage of its convictions. Take, for example, Mr Khan’s outburst against sectarianism. We are told, repeatedly, that sectarianism is bad, very bad in fact, and so Shias should not be killed. We are also told that the Prophet (pbuh) strictly forbade sectarianism and said that “Allah’s hand is
over the group and whoever dissents from them [i.e., the group] departs to Hell.”

All well and good, but the question is, who constitute ‘the group’?

According to Mr Khan, one adheres to ‘the group’ by following one of the four traditional schools of jurisprudence. In other words, one adheres to ‘the group’ by being a Sunni. Anybody who is not a Sunni (like, um, Shias) is therefore not of “the group” and presumably “depart[ing] to Hell.”

Let me state again that while I respect Mr Khan’s right to be a bigot, I do have a problem with mealy-mouthed hypocrisy. Why preach to the world that sectarianism is bad when you are also defining sectarianism to mean
being a Shia? Unless Mr Khan’s anger is actually directed at all those Hanafis who can’t stand the Hanbalis, his condemnation of sectarianism amounts simply to a very thinly disguised condemnation of Shiaism.

The same dissimulation can be found in Mr Khan’s analysis of the term “bid’a.” Note first that there is no denial by Mr Khan that Sheikh Nuh referred to Shiaism not as “innovation,” but as “bid’a.” However, Mr Khan states repeatedly that “bid’a” does not mean “heresy” but instead only means “innovation.” This shows up Mr Khan as a bad student of his own teacher’s writings.

More specifically, Sheikh Nuh has written two articles that make it entirely clear that he considers the term “bid’a” to mean not just “innovation” but rather “reprehensible innovation.”

In the first article, “How would you respond to the claim that Sufism is bid’a?”, Sheikh Nuh writes that he does not consider Sufism to be “bid’a or reprehensible innovation” because even though elements of Sufism did not exist at the time of the Prophet (pbuh), neither did other Islamic disciplines, “like Qur’anic exegesis (tafsir), hadith, and Qur’an recital (tajwid)”. In this context, Sheikh Nuh goes on to quote Imam Shafi’i as having said that, “Anything which has a support (mustanad) from the shari’a is not bid’a, even if the early Muslims did not do it”.

In his second article, “The Concept of Bid’a in the Islamic Shari’a” the Sheikh writes that “There are few topics that generate as much controversy today in Islam as what is sunna and what is bid’a or reprehensible innovation.” The same article goes on to make the following point:

“Islamic scholars have established the rule that any new matter must be judged according to the principles and primary texts of Sacred Law: whatever is attested to by the law as being good is acknowledged as good, and whatever is attested to by the law as being a contravention and bad is rejected as a blameworthy innovation (bid’a).”

Mr Khan could presumably defend his position with the argument that there is a distinction between even “reprehensible innovation” and “heresy.” However, he would again be mistaken because “bid’a” has always been considered to be a very dangerous term in Islamic history.

To quote Sheikh Nuh again, “Sunna and innovation (bid’a) are two opposed terms in the language of the Lawgiver.” As a consequence, the term “bid’a” has consistently been used throughout Islamic history to attack those accused of not following the sunna of the Prophet (pbuh). Indeed, Mr Khan concedes as much when he alleges that a renowned Sufi saint once referred to Shias as “ahl al bid’a”. As every scholar of Arabic knows, the term “ahl al bid’a” is universally translated as “heretics,” not as “innovators.”

In light of the above, Mr Khan’s pious homilies about how the misinterpretation of bid’a “feed into the sectarian divisiveness that costs lives” are irritatingly unctuous. Have no fear, Mr Khan. If anybody loses his life, it will only be another Shia: nothing for you to worry about.

 This article originally appeared in the Daily Times on April 2, 2004

Law and Economics for Dummies

Laws have economic consequences. Laws which have undesirable economic consequences are bad laws.

 

Capitalism is the belief that societies benefit most when decisions about the allocation of capital are made by individuals, and not by governments. This means people should be able to do whatever they want with their capital.

 

If a society wants to encourage capitalism then the laws of that society should ensure that transfers of capital are as easy, safe and risk-free as possible so that people can do whatever they want with their money.

 

“Capital” is a vague term but it basically means anything which has value. Another word for capital is “wealth.” In Pakistan, the most common form of wealth is land. In other words, if everybody in this country filed an honest wealth tax return, the most common form of wealth would be land. One fairly reasonable estimate is that more than 90% of capital in Pakistan is in the form of land.

 

If the Pakistani government wants to encourage capitalism, it should ensure that transfers of land (or of interests in land) are as easy, safe and risk free as possible. Unfortunately, all governments in the history of Pakistan have failed miserably at this task. Transfers of land in Pakistan are difficult, unsafe and highly risky.

 

Normal forms of transfers in land include the sale of land, the lease or rental of land and the mortgaging of land as security for a loan.

 

The sale (and purchase of land) is difficult, unsafe and highly risky in Pakistan for the fundamental reason that there is no single centralized record maintained by the state which is conclusive proof of title so that people can know who owns what. The records which are maintained by public agencies, such as the land revenue department, are not conclusive proof of title but only evidence of title.  This means that no matter what the patwari’s record says, somebody can claim that they own a particular piece of land and litigate the matter all the way up to the Supreme Court.

 

The first recorded state survey of land ownership was carried out in 1086 in England under the orders of William the Conquerer.   In 1858, Sir Robert Torrens developed a system of definitively recording land title which is now used worldwide. In all those countries, the amount of litigation over land title, at least as compared to Pakistan, is minimal.

 

Unlike many other countries, Pakistani law also recognises oral gifts as valid transfers of property. Since oral gifts are, uh duh, oral, there is no record of such gifts. The only way to prove an oral gift is to sue everybody else who would otherwise have had an interest in the property being gifted. Which is not such a big handicap because all those people who have been deprived by virtue of the gift normally winding up suing the recipient of the gift in any event. And the title of the land therefore stays in dispute until the Supreme Court decides the matter.  In most cases involving oral gifts, properties are gifted so as to ensure that women do not get their Islamic shares of inheritance.

 

England has not allowed oral gifts of land since 1604.  There is no litigation in England regarding the validity of oral gifts. Uh duh.

 

Pakistani law also recognises the right of pre-emption of neighbours. This means that if you try and sell your land, your neighbour (and various other people) have a right of first refusal, that is, to buy your land at the price being offered by the prospective buyer. Courts do not like pre-empt suits and therefore these suits are rarely successful. But as a blackmail tool, pre-emption suits are very effective. One reason that pre-emption suits are so effective is that people understate the declared value of their properties so as to avoid tax. Pre-emption laws serve absolutely no economical valid purpose.

 

The short version is that if you want to buy property, you don’t know what you are buying. You could be buying your dream house or you could be buying a giant headache. This has verifiable and very serious economic costs.

 

In most Western countries, it is possible to get up to 90% of the value of your property as a loan. In Pakistan, bankers are reluctant to take a risk of more than 50% of the value of a property. That 40% differential is dead property, a handicap imposed on its citizens by the legal system of Pakistan.

 

Pakistan’s laws relating to property are not just dysfunctional and outdated but actually harmful.  These laws hurt economic development because they make the transfer of wealth difficult. These laws hurt both rich people and poor people by retarding economic development, but poor people are affected more by such laws. 

 It is about bloody time that these laws were changed.

 

This column was originally published in the Daily Times

 

Law and Economics for Dummies

Laws have economic consequences. Laws which have undesirable economic consequences are bad laws.

 

Capitalism is the belief that societies benefit most when decisions about the allocation of capital are made by individuals, and not by governments. This means people should be able to do whatever they want with their capital.

 

If a society wants to encourage capitalism then the laws of that society should ensure that transfers of capital are as easy, safe and risk-free as possible so that people can do whatever they want with their money.

 

“Capital” is a vague term but it basically means anything which has value. Another word for capital is “wealth.” In Pakistan, the most common form of wealth is land. In other words, if everybody in this country filed an honest wealth tax return, the most common form of wealth would be land. One fairly reasonable estimate is that more than 90% of capital in Pakistan is in the form of land.

 

If the Pakistani government wants to encourage capitalism, it should ensure that transfers of land (or of interests in land) are as easy, safe and risk free as possible. Unfortunately, all governments in the history of Pakistan have failed miserably at this task. Transfers of land in Pakistan are difficult, unsafe and highly risky.

 

Normal forms of transfers in land include the sale of land, the lease or rental of land and the mortgaging of land as security for a loan.

 

The sale (and purchase of land) is difficult, unsafe and highly risky in Pakistan for the fundamental reason that there is no single centralized record maintained by the state which is conclusive proof of title so that people can know who owns what. The records which are maintained by public agencies, such as the land revenue department, are not conclusive proof of title but only evidence of title.  This means that no matter what the patwari’s record says, somebody can claim that they own a particular piece of land and litigate the matter all the way up to the Supreme Court.

 

The first recorded state survey of land ownership was carried out in 1086 in England under the orders of William the Conquerer.   In 1858, Sir Robert Torrens developed a system of definitively recording land title which is now used worldwide. In all those countries, the amount of litigation over land title, at least as compared to Pakistan, is minimal.

 

Unlike many other countries, Pakistani law also recognises oral gifts as valid transfers of property. Since oral gifts are, uh duh, oral, there is no record of such gifts. The only way to prove an oral gift is to sue everybody else who would otherwise have had an interest in the property being gifted. Which is not such a big handicap because all those people who have been deprived by virtue of the gift normally winding up suing the recipient of the gift in any event. And the title of the land therefore stays in dispute until the Supreme Court decides the matter.  In most cases involving oral gifts, properties are gifted so as to ensure that women do not get their Islamic shares of inheritance.

 

England has not allowed oral gifts of land since 1604.  There is no litigation in England regarding the validity of oral gifts. Uh duh.

 

Pakistani law also recognises the right of pre-emption of neighbours. This means that if you try and sell your land, your neighbour (and various other people) have a right of first refusal, that is, to buy your land at the price being offered by the prospective buyer. Courts do not like pre-empt suits and therefore these suits are rarely successful. But as a blackmail tool, pre-emption suits are very effective. One reason that pre-emption suits are so effective is that people understate the declared value of their properties so as to avoid tax. Pre-emption laws serve absolutely no economical valid purpose.

 

The short version is that if you want to buy property, you don’t know what you are buying. You could be buying your dream house or you could be buying a giant headache. This has verifiable and very serious economic costs.

 

In most Western countries, it is possible to get up to 90% of the value of your property as a loan. In Pakistan, bankers are reluctant to take a risk of more than 50% of the value of a property. That 40% differential is dead property, a handicap imposed on its citizens by the legal system of Pakistan.

 

Pakistan’s laws relating to property are not just dysfunctional and outdated but actually harmful.  These laws hurt economic development because they make the transfer of wealth difficult. These laws hurt both rich people and poor people by retarding economic development, but poor people are affected more by such laws. 

 It is about bloody time that these laws were changed.

 

This column was originally published in the Daily Times

 

A good end to a bad law

For most of the past three decades, “Repeal the Hudood Ordinance” has been the rallying cry for Pakistan’s feminists. If all goes according to the government’s plan, much of what is undesirable in the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (to give the law its full name) will be quietly gutted through the proposed Protection of Women’s Act.

That should make General Pervez Musharraf very popular with the liberal community. But instead of being welcomed, his efforts have been attacked as “grossly inadequate.” Unfortunately, the liberals have gotten it wrong. The only thing “grossly inadequate” about the Protection of Women’s Act is the response it has received so far. The proposed law marks the absolute limit of what is possible in terms of today’s political climate. More importantly, the Protection of Women’s Act is not a whitewash job: instead, it addresses and fixes the major sources of women’s oppression under the Hudood Ordinance.

Since its introduction in 1979, the Hudood Ordinance has been criticised mainly for two main reasons. Firstly, women who complained or alleged that they had been raped risked facing the danger of being convicted on fornication charges, if they failed to prove their innocence. In one case, a blind girl, Safia Bibi, who had been raped, was convicted on charges of zina because she could not identify her attacker! Many rape victims therefore preferred to suffer in silence, rather than take the risk of further undeserved punishment and social ostracism.

The second major problem under the Hudood Ordinance arose from the fact that the law defined zina as sex between two people, who were not ‘legally’ married. Most people in Pakistan, especially those in the rural areas, are ignorant of the formalities regarding divorce. For example, no marriage is legally dissolved until a certificate of confirmation of divorce is issued. In practice, however, husbands often simply send their wives away after pronouncing the words ‘talaaq’ three times. When these women subsequently remarry, their former husbands will often file charges of zina against them on the grounds that the earlier marriage was not legally dissolved. Such women often end up spending years rotting in jail, before they are cleared of the charges. By then, their marriages and their lives are ruined.
The most important reason for the problems caused by the Hudood Ordinance is that it covered certain crimes for which the appropriate punishment was provided in the Quran (hadd punishments) as well as other crimes, for which the punishment’s were provided by common law, or statutory law (tazir punishments). Thereby the ordinance provided hadd punishments for certain crimes (such as rape), even though there is no specific punishment identified for them in the Quran.

The problems arising from this fundamental confusion were then exacerbated by the very broad view taken by certain judges, regarding what constituted a ‘confession’. In some cases pregnancy, by itself, was deemed to be a confession. In other cases the presence of two people in a room was deemed as a ‘confession’. Finally, under the current procedures, any person can accuse another person of zina and if the accusation was recorded as an FIR by a local SHO, the accused would be arrested. Considering that the ostensible penalty for zina is death, the accused essentially had little chance of bail, for at least the next two years.

The Women’s Protection Act addresses each and every one of these problems. The Hudood Ordinance has now been limited to cover only those crimes for which punishment is specified in the Quran itself. All other crimes, such as rape, have been taken out of the Hudood Ordinance and moved into the Pakistan Penal Code, where normal criminal and
evidentiary procedure will apply. This means that in rape cases, the evidence of a woman will now be worth the same as that of a man. Most importantly, there will no longer be any tazir punishment for zina. In other words, a person can only be convicted of zina if, and only if, there are either four eyewitnesses to the actual act of penetration or if the
accused voluntarily confesses in open court. Over the past 27 years, no conviction on that basis has ever been upheld.

With respect to the rights of divorced women, the definition of zina has been amended so as to exclude cases in which people reasonably believe themselves to be married. Divorced women will now no longer need to live in fear of their former husbands.

Furthermore, a number of procedural protections have been added. Confession has been defined to mean confession in court and all previous judgments defining confession have been specifically excluded. The accused cannot be asked to ‘confess’ unless and until a sessions court issues a summons (not a warrant) asking them to appear. No sessions
court can issue a summons until the judge is first satisfied after having examined the evidence of the four eyewitnesses concerning whether or not the act of zina has, prima facie, occurred. Further, no case can be registered unless and until the sessions court concludes that a case is actually made out and if the sessions court comes to the conclusion that
the complaint is unjustified, it can immediately sentence the complainant to a punishment of 80 lashes (for qazf). Finally, even if a case of zina is registered, zina has now been defined as a bail-able offence. This means the accused have the right to bail and women will no longer be forced to spend time in jail on zina charges unless and until they are actually convicted. And I repeat: over the last 27 years, no conviction of zina has ever been maintained on the evidence of four eye-witnesses.

As noted earlier, the response from women’s groups to the proposed Women’s Protection Act has either been hostile or at best, tepid. Instead of supporting the bill, women’s groups have only reiterated their demand for the complete repeal of the Hudood Ordinance. What these groups forget is that politics is the art of ‘the possible’. The Women’s Protection Act may not be perfect but it will certainly bring relief to millions of oppressed women. In any event, the fight for repeal can always be carried on later.

Those who believe in women’s rights must fight for this bill. To stay silent now, or to insist upon an impossible goal, is to betray all those women who have suffered under an evil law.

This column originally appeared in the Daily Times on September 10, 2006

Getting what you pay for

Chief Justice John Roberts of the United State Supreme Court is a man who inspires near-universal admiration. His
nomination in 2005 by President George W Bush is remembered by many as one of the few moments in his life that Bush actually got something right.

These days, however, the halo seems to be slipping from Chief Justice Robert’s forehead. The reason for this decline in popularity is simple: Justice Roberts has asked for a pay raise.

In his 2006 Year-End Report on the Federal Judiciary, Justice Roberts has laid out a simple and compelling case for the argument that the members f the federal judiciary are underpaid. He shows how in 1969, federal judges made substantially more than senior professors and law school deans but now make considerably less. As a consequence, he notes that judges in the US are now drawn more from the public sector than from the ranks of the bar.

The simple point made by Justice Roberts is that “inadequate compensation directly threatens . . . the strength and independence judges need to uphold the rule of law”. And as once noted by Alexander Hamilton, “the independence of the judges once destroyed, the constitution is gone, it is a dead letter; it is a vapour which the breath of faction, in a moment, may dissipate.”

Notwithstanding the simple logic of Justice Roberts’ argument, the response to his plea for more pay has been anything but sympathetic. Instead, commentators from both the right and the left have responded by telling the judges to resign if they do not like the job.

I mention the reaction in the United States to Justice Roberts because similar efforts in Pakistan have fallen on equally deaf ears. Governments come and go — even generals come and go — but one thing always remains constant in Pakistan: judges get paid ludicrously low amounts.

The low level of judicial salaries is particularly striking when viewed in historical context. In 1899, the Chief Justice of the Lahore High Court was paid a salary of Rs. 4,000 per month at a time when gold was Rs. 10 per tola. Today, gold is about Rs14,000 per tola, so the equivalent salary for a judge should be Rs5.6 million per month. That may seem like an
exorbitant figure but it is roughly what you would have to pay to a good English barrister to come to Pakistan and spend the rest of his life here as a judge.
There are standard responses to the demand for higher judicial pay. We are too poor, say some; the honour itself is enough, say others. Humbug, I say. We are poor in part because we do not recognise and reward merit.

The most potent argument against higher remuneration for judges is that Pakistan continues to be graced with honest judges of brilliance and competence notwithstanding the low levels of pay. In response, I would certainly not disagree with the fact that there are numerous individual judges, particularly in the superior judiciary, who are indeed honest,
brilliant and extremely competent. However, my point is that there are a very limited number of honest, brilliant and extremely competent lawyers who are willing to give up their (lucrative) practices in exchange for a judge’s robes, particularly when a judge’s salary is minimal.

Pakistan has been extremely lucky in having had a number of such heroes in the past, and I use the word ‘hero’ deliberately. But the point here is that the number of heroes in any country is generally always finite. No country can progress if its judicial recruitment policy is based upon an infinite supply of talented, selfless and highly altruistic lawyers willing to sacrifice their professional career for little reward.

It is also very important to note that the total number of judges is very little. In the case of the judiciary, all high courts and supreme court judges put together are approximately 100 in number. Those 100 individuals get to decide every single important issue in this country. It is of the absolute and vital interest to this country’s future that those 100
positions are filled by men and women of the highest professional calibre. And the best way of getting such men and women to join the judiciary is to pay them well.

Till date, we have chosen to live in a fool’s paradise and have consequently suffered the universal fate of fools. Paying judges not just a reasonable amount, but extravagantly well, would be a good first step towards avoiding that fate in the future.

This column appeared in the Daily Times on January 6, 2007

Bullies and cowards

In his autobiography, General Pervez Musharraf describes how he learnt at an early age that bullies crumble when
confronted. The next week will show whether he has since learnt that the same applies to the Mutahidda Majlis-e-Amal.
To put the above point in context, General Musharraf’s government announced several months ago that the Hudood Ordinance would be repealed. After much parliamentary activity, the bill was referred to a select committee which deliberated on the matter and then produced a flawed but serviceable bill to amend the Ordinance.
Since the parliamentary committee’s bill was supported by both the Pakistan People’s Party and the Mutahidda Qaumi Movement, simple arithmetic indicated that General Musharraf did not need any further votes. The whole exercise was also accompanied by a elaborate media campaign, in which the aura of sanctity surrounding the Hudood
Ordinance, was convincingly dismantled.
So, the General had the votes in Parliament, he had the public and he had the righteous might of the world’s human rights community with him. But then the simple script began to change: the MMA threatened to resign and start street protests, the nervous ninnies in the ruling PML-Q began worrying about their post-election future and the Women’s
Protection Act suddenly got shoved into a very dark and cold place in the earnest hope that it would quietly shrivel and die. In short, confronted by an array of puffed-up pomposities, the government choked. If it makes the government spokespersons feel any better, they are welcome to use the technical term for this condition — “a sudden build-up of lactic acid in the throat.” But those of us who are not doctors will still know the truth.

Now, two weeks of book-promotion later, we are back to square one. Human rights organisations confronted with the spectre of an unamended Hudood Ordinance are preparing to throw their weight behind the parliamentary committee’s bill; the mullahs have gone back to threatening terrible things if the Hudood Ordinance is amended; the wise men of the PML-Q remain unconvinced that passing the bill is the best course of action and the rest of Pakistan is holding its head, wishing a plague upon all their houses.

In some ways, this scenario is tailor-made for General Musharraf. Indeed, many conspiracy-minded people (also known as the rest of Pakistan) are convinced of this. However, regardless of whether the proximate cause of
today’s impasse is incompetence, lactic acid or political cunning, the point is that the time has come for the General to deliver.
General Musharraf is not a politician. He has not been elected. More importantly, he is not popular because he has been elected. Instead, he is popular precisely because he claims to be able to make decisions in the public interest without being handicapped by the vote-seeking and crowd-pleasing antics that handicap most politicians.

Whether General Musharraf is justified in his claims regarding himself is another matter. However, my point here is very simple. To repeat, the General is not a politician. If he acts like a politician, he will soon lose whatever claim to legitimacy he has and will wind up like other exiled politicians, i.e., living in a Dubai suburb, watching BBC Food for
entertainment.
Instead, if the General wants to protect his “mandate,” he has to walk the walk of a reformer, not just talk the talk. If his claim is that the people of Pakistan prefer an enlightened dictator to a corrupt and ineffective democracy, then he has to deliver on both prongs of his appeal. He must be “enlightened.” And he must be a dictator, which is to say that he must enforce his will rather than worry about the re-election prospects of his underlings.

For the liberal supporters of the General, and there are some, this is the moment of truth. Either General Musharraf is capable of seeing off the mullahs, in which case his existence is justified, or he is just another politician. If he is a politician, then he is useless. And if he is useless, then we might as well have a democratically elected useless leader so
that we no longer have to endure taunts about living under the thumb of a military dictator.
The only mystery in this whole affair is why General Musharraf has grown so petrified of the mullahs. The chances of the MMA resigning en masse over amendments to the Hudood Ordinance are essentially nil. The chances of MMA supporters coming out on the streets are pretty good but that the government should be able to handle without breaking a sweat.
To sum up, the General now has a golden chance at doing a number of good things. By supporting the Select Committee’s version of the Women’s Protection Act, he can reaffirm parliamentary democracy, he can justify his own powers, he can help better the lives of thousands of women and he can, for once, just do the right thing.

This  column appeared in the Daily Times on October 2, 2006

Amendment: the radical option

The conventional pitch for the Women’s Protection Bill (as proposed by the Select Committee) is that it gets you
almost all of the things you get from repeal of the Hudood Ordinance and is — unlike repeal — a politically feasible option. Two weeks ago I too made that argument in this newspaper (‘A good end to a bad law’, September 10, 2006).

In some ways, however, I undersold the Women’s Protection Bill. Amending the Hudood laws in the manner proposed by the Select ommittee is actually a far more radical move than the repeal of the Hudood Ordinance. The real debate about the Hudood Ordinance after all, s not about women’s rights, it is about the right to determine the right and wrong: to determine what is right and what is un-Islamic.
The essence of the fundamentalist argument is that Islamic law is a specialised science: only pious people having spent many years studying he subject are competent to offer an opinion. This makes the experience  and opinion — of ordinary people irrelevant.
There are two problems with this approach. First, piety, especially when it comes to women’s issues, often turns out to be a blend of ignorance and prejudice hiding behind a fig leaf of morality. Second, it excludes everybody, who is not a certified Islamic scholar from having any say in what law should be.

To date, there have been two main modes of attack on the fundamentalist approach. The secular human rights organisations’ approach is: We don’t care about what is or is not Islamic. The Hudood Ordinance needs to go because it is barbaric and oppressive. The reformist Muslim approach, typified by Allama Javed Ahmed Ghamidi, is to take on the mullahs on their territory and challenging their interpretation of Islamic law.

To date, neither approach has worked particularly well. The activists’ approach has kept the issue alive but also isolated them. The reformist approach appears to be making some headway but is limited by the short supply of liberal scholars of Islamic law compared to the literalist hordes produced by the seminaries. There is only one Ghamidi; there are a thousand Qazi Hussain Ahmeds.

The Women’s Protection Bill represents a third approach. It accepts, like the activists, that the Hudood Ordinance has meant great suffering for women. Unlike the activists, however, it accepts that legislation in Pakistan must take into account Islamic traditions. And unlike the mullahs, it says that what is or is not Islamic is not up to ‘specialists’ to
decide but a matter for the elected representatives of the people.

The civil society may have entirely overlooked this point but the bearded hordes have not. The conservative response to the Women’s Protection Bill has therefore not been limited to trying to strip it of substantive effect. It has also sought to ensure that the final decision on its text is made not by an elected parliament but by the various self-appointed guardians of the Islamic way. This is the thinking behind Chaudhary Shujaat Hussain’s proposal that amendments to the Hudood Ordinance should be decided not by the parliament but by a committee of ulema. Other responses have been more transparent, like Liaquat Baloch of the MMA going so far as to assert that “No government can dare touch these holy laws.”
It needs to be understood that Islamic legal theory as understood by the MMA begins with the premise that the legislators’ role is not to make laws, only to “discover” them. Thus the notion supported by people like Mr Baloch that all Islamic law is direct revelation from Allah Almighty Himself, unaffected by human interaction or mediation.

Of course, this is rubbish. General Zia did not discover the text of the Hudood Ordinance engraved on stone tablets while wandering on Mount Sinai. The law reflects the views of a few unenlightened men as to what the commandments of God ‘ought’ to be. However, ever since General Zia wandered on to the political scene, any law or political problem
involving any ‘Islamic’ aspect has been treated as the exclusive preserve of Islamic scholars.
The Women’s Protection Bill attacks this ‘given’. The fundamental principle behind the Women’s Protection Bill is that only laws explicitly laid down in the Quran are beyond question. Anything not explicit in the Holy Quran is to be treated as man-made law and is therefore — like any other law — liable to amendment or repeal by parliament. Thus, the Women’s Protection Bill preserves the Quranic punishment and the Quranic mode of evidence for the crime of zina. Furthermore, it treats the Quranic punishment of zina as exhaustive and denies that any other punishment can be provided for zina. Since the crime of rape (or zina bil jabr) is not defined in the Quran, it is to be defined under the Pakistan Penal Code, and to be tried in accordance with the Criminal Procedure Code.

What is at stake is no less than the entire concept of parliamentary democracy. Either the elected representatives of society have the right to make laws or they are merely ornamental. If they are ornamental, they might as well go home. If they have something to contribute, they need to start doing it. The people of Pakistan are watching.

This article appeared in the Daily Times on September 24, 2006

Money talks and bullshit walks

We are at war. And we are losing.

I’m not talking about the military war in which unmanned missiles strike homes in Wana and in which unknown people transform themselves into neat little mushroom clouds. I’m talking about the war for the hearts and minds of the Pakistani people.

As Exhibit A, I present the lead headline from the Sunday edition of a prestigious English-language newspaper: “Foreigners’ haunt bombed in capital.” The facts are that a bomb exploded in Islamabad, killing a woman and injuring 15 others.

The bomb attack in Islamabad was not mounted to kill only foreigners. The bomb was an explosive device packed with pellets and ball bearings designed to cause maximum injury to human beings. It was placed in a restaurant open to public in the capital of our country and it was exploded without any questions being asked regarding the nationality of the diners.

The fact that one woman who died was not a Pakistani does not mitigate the horror of the bombing. If anything, I am more ashamed than reassured by the fact that guests in my country are being targeted for killing. I, for one, have not reached the stage where I am able to excuse the indiscriminate killing of civilians on the grounds that they are not citizens of this benighted nation.

Let me be clear about what I’m saying: I think the newspaper’s headline was utterly and completely despicable, though chances are that it came out as it did because of professional incompetence rather than some sinister design. Even so, by identifying the restaurant as a place popular with foreigners and by emphasising the fact that the sole death was that of a foreigner, it gave credence to the argument that the conflict in which the Islamabad bombing was a minor skirmish is not our war, but an extraneous conflict foisted upon us by the West, specifically the United States.

That argument is not only utter rubbish, it is dangerous rubbish. If we believe that we have no stake in this war, then we have already lost it.

Since the issue of the war on terror has become intertwined in the public mind with the person of General/President Musharraf, let me clarify that this article is not in any way, shape or form, a justification for the staying on in power of General/President Musharraf. In fact, it is the opposite.

If Mr Musharraf had but one redeeming quality, it was that he had clearly identified the war within Islam and had correctly chosen to fight the extremist elements. The problem now is that Mr Musharraf is no longer helping in the war against terror. This is because an increasingly large number of Pakistanis are coming to the conclusion that this war is not a war in which they have a stake but only a war in which Mr Musharraf has a stake. As a consequence, so far as the war on terror is concerned, Mr Musharraf is no longer part of the solution. He has instead become part of the problem.

Let us put him aside for now; his fate will be decided shortly enough. Instead, the key question is, how do we ensure that five years from now the Pakistani nation does not continue to think that they have no stake in this war?

Part of the answer lies in the last scene of the movie titled “Charlie Wilson’s War.” The movie tells the story of an American congressman who was instrumental in raising the budget for the mujahedin from a few million dollars to almost a billion, thereby helping to ensure the failure of Russia’s invasion of Afghanistan.

Towards the end of the movie, after the withdrawal of the Russians, there is a scene in which Charlie Wilson is fighting other congressmen for funding for schools in Afghanistan. Not billions this time, but just a few million. And the response from one of the other congressmen in the Appropriations Committee is, “Charlie, nobody gives a damn about schools in Afghanistan.”

Reluctantly or otherwise, we have been America’s star-ally since 2001. Since that time, we have received approximately USD10 billion for our efforts. But as I look around, I can see no visible compensation for the sacrifices made by Pakistanis: the Americans have not built us any dam, any factory, any university or any hospital since 2001.

What I do know is that America has refused to give us the same preferential trade access it gives to other countries in the region. What I do know is that every Pakistani applicant for an American visa is treated like dirt and that every Pakistani who actually tries to enter the United States is treated like a criminal.

This does not help America’s cause. And since my cause — the cause of a free Pakistan in which I am not at the mercy of people who tell me how to pray and how to live — is tied to America’s cause, it does not help my cause either.

For the benefit of policy-makers, let me try and simplify my argument:

* This is our war. We are the ones who are getting killed. And if the extremists win, we will suffer the most.

* This war cannot be won without public support.

* It will be easier to persuade the Pakistani public to support this war if the public receives some direct, substantive and visible benefit in return.

* Military hardware does not count.

Black swans and dead turkeys

What do you do with this black swan now that it has shown up? Do you go back to living in Mediocristan? Do you assume that politics as usual is about to return? Or, do you try living in Extremistan in the belief that this is one of those moments when hope and history rhyme?

I first started playing cards in high school. Ever since then — through college, law school and more than a decade of legal practice — I have continued to play; occasionally for profit, sometimes for a loss, and always for fun.

The problem with playing cards seriously though is that you start analysing all social phenomena like a card player. What that means is that you always play the odds. In any given situation, you figure out the percentage play and then stick to it. If you go for broke, you will most likely wind up broke. If you get beat by a bad draw, that’s life.

The bigger problem with thinking like a card player is that the card player’s view of probability does not necessarily apply to life beyond the card table. In his brilliant book titled The Black Swan, Nicholas Nassim Taleb explains how very little human beings actually know and how much of life is in fact determined by the highly improbable.

Taleb illustrates his first point about the limitations of human knowledge by referring to the fact that, prior to the European discovery of Australia, there were literally hundreds and thousands — if not millions — of instances where people had observed white swans but no black ones. And yet, once the first black swan was discovered, all of that experience counted for naught.

He makes the same point in a far more graphic manner by referring to the experience of an imaginary turkey. For the first thousand days of its life, that turkey is under the impression that human beings are wonderful and are concerned solely with its welfare. But on the one thousandth and first day, surprise!

Moreover, not only are we humans lousy at predicting disasters but we are equally lousy at predicting good things. As an example, Taleb notes that the three most influential technological developments of the 20th century are normally reckoned to be the internet, the laser and the personal computer. None of them was predicted and even the people who invented them had no idea as to what the impact of these devices would be: Tom Watson, the former chairman of IBM, originally thought that the worldwide market for computers would be no more than a handful.

To return to the issue of cards, Taleb’s final point is that the types of chances and probabilities we face in card games are not the types of chances and probabilities we face in real life. In cards, the types of probabilities we face are relatively well known because all of them come from a universe of known possibilities. Taleb calls this world Mediocristan.

But in real life, the biggest problems — and opportunities — we face come from what Donald Rumsfeld once referred to as the “unknown unknowns”. This is the world that Taleb calls Extremistan, a world defined and driven by highly improbable events.

The point of discussing all of this is to note that the events which followed the sacking of the Chief Justice of Pakistan on March 9, 2007 were a “black swan” event. Leaving aside the morality or legality of trying to railroad a chief justice in patently unfair proceedings, it can safely be assumed that all those who advised General Musharraf to teach the Chief Justice a lesson did not foresee in all of their predictions the possibility that the deposed chief justice would become a popular hero; that he would be welcomed by the people of Pakistan in numbers not seen since the heyday of Zulfiqar Ali Bhutto; that emboldened by public support, a 13-member bench of the Supreme Court would restore the Chief Justice; that his restoration would set off such a wave of defiance that the once-closed chapter of General Musharraf’s candidature would be opened to debate; that General Musharraf would be forced to impose martial law against himself to avoid the danger of a contrary verdict, that General Kayani would direct the army to step out of politics; that relatively fair and free elections would be held; that the masses would vote overwhelmingly against General Musharraf; and, that throughout all of this, the lawyers of Pakistan would never give up on their struggle to establish an independent judiciary.

But now comes the million-dollar question: assuming you are the new political leadership of Pakistan, what do you do with this black swan now that it has shown up? Do you go back to living in Mediocristan? Do you assume that politics as usual is about to return? Or, do you try living in Extremistan in the belief that this is one of those moments when hope and history rhyme? After all, if Taleb is to be believed, the prime mover throughout history has been the improbable event.

I don’t have the answer. In fact, one of the main points made by Taleb is that nobody really has the answers. He cites a study which found that not only were most “experts” wrong far more often than they thought but that there was no difference in results whether one had a PhD or an undergraduate degree. Interestingly, the only regularity found was that those who had a big reputation were worse predictors than those who had none.

The immortal Yogi Berra once said, “it is tough to make predictions, especially about the future.” And so, I end not with a prediction but a sentiment: the hell with probability.

When tomorrow comes

Today is election day. Tomorrow is a brand new day.

Or is it?

It is likely that following today’s vote we will have tomorrow a political set-up which is marginally more democratic than the current regime. It is possible that we will emerge from our long dark winter into a glorious spring filled with democracy and development. Or it is possible that things could get a whole hell of a lot worse.

Frankly, both outcomes are equally probable.

I wish I had words of comfort to provide. I wish that I had some blinding beautiful insight that would explain how things are going to all work out. But the truth is that nobody knows. Churchill once referred to Russia as a riddle wrapped in a mystery inside an enigma. Much the same can be said about Pakistan.

Two weeks ago, I attended a seminar organised by the SECP to publicise the launch of Real Estate Investment Trusts (REITs). The seminar was erudite, the audience was learned and the vision being painted by the SECP of Pakistan’s rosy future was both enticing and entirely plausible.

But when one picked up a newspaper, all the good vibes disappeared. Dozens dead in suicide bombing, screamed one headline. These elections are a farce, shouted another. Between the seminar and the surkhis, my brain all but split into two. Either one or the other had to be right. Pakistan could not be simultaneously so advanced and so messed up.

But that is actually the case.

The problem with Pakistan is not that there are shades of grey which are being missed by casual observers. The problem with Pakistan is that it is a checkerboard with lots of blacks and lots of whites. Whether you think of Pakistan as shining or screwed up, you can find all the evidence you want. What you won’t find is a definitive answer either way.

So where does that leave the undecided voter?

Well, I decided to take the Sherlock Holmes approach and first rule out the impossibles. So, vote for Zardari? Hell no. Vote for Nawaz Sharif? Over my dead body. Vote for Moonis Elahi? Only if you took me aside later and shot me in the back of the head.

But who did that leave? A bunch of no-names including the no-name running under the sign of the elephant whose house happens to be opposite mine. But that would mean wasting my vote, my precious democratic vote. At that point, I was sorely tempted to use my seven-year-old’s solution to all complicated issues: eeny meeny mina mo, catch a tiger by his toe…

I wish I could give a coherent explanation as to why I finally settled on the PPP but I don’t think I can. When I reached the polling booth, my head was still spinning from the lack of decent choices.

Inside the polling station, all was confusion. There was a PPP polling agent but he could not figure out my name on the list and so told me to go outside. Outside was no better, as the PPP booth was literally unmanned, being staffed only by a gaggle of ladies who told me in the most shaista Punjabi that they had no lists and did not know what to do with them anyways. Not knowing who else to approach for help, I went to the PMLQ booth where a bunch of efficient organised workers soon had me all set up and ready to vote.

After I had gone back in and managed to manoeuvre my way through the whole finger-painting, thumb-stamping process of casting a vote, I asked the PPP’s polling agent why his party was so woefully disorganised that I had to get my slip filled out by the PMLQ guys. His first reaction was, “Challo ji Moonis Elahi da koi ta faida hoiya na!” And when that excuse did not quite pass muster, he tried a different tack. “Sarkar, we have no computers. Only the Q wallahs have computers”.

At this lovely riposte, I have to say that my heart sank. All I could think of were the lyrics to an old Ray Charles song titled, “Here we go again”.

Here we go again
She’s back in town again
I’ll take her back again
One more time
I’ve been there before
And I’ll try it again
But any fool knows
That there’s no way to win

As the last chords of the song faded from memory, I tried to figure out what to say to this gentleman, now representing the party to whom I had entrusted my political future. I wish I could report that my response was profound, but what I actually said was, “This is your third time. For god’s sake, don’t f**k it up.”

The logic of nonzero

In game theory terms, our basic mentality within Pakistan is that life is a zero-sum game: if somebody else is winning then I must be losing. If somebody else has money, then I must be worse off

There is an old joke told with much relish by Pakistanis about a visitor to hell being given a guided tour. The visitor is taken to various locked rooms where people of different nationalities are being tortured and punished. When the tour reaches the Pakistani dungeon, the visitor notices that there is no door to prevent the prisoners from escaping and asks his guide about this curious omission. “Oh,” says the guide, “We don’t need to guard the Pakistanis. Every time one of them looks like he is getting out, the others pull him back in.”

The joke may be lousy but it says much about our national psyche and our national predicament. And this is not just an abstract question of social psychology. This is an aspect of our lives that is deeply problematic.

People often ask why is it that the same Pakistanis who make model citizens in other countries are so unproductive in their own country. While that is a complex issue, one of the reasons, which affects how people respond and perform relates to how they view their environment.

In simple terms, when an average Pakistani in Pakistan looks at a successful person, his first reaction is that the successful person is not too different from himself. His second thought is that the successful person must be a crook of some undefined sort. His third thought is resentment of the “fact” that the crook has stolen the share which rightfully belonged to him. And his fourth reaction is to start plotting how to get “his” share back.

Conversely, when the same Pakistani immigrates to New York or London and sees a successful person (or successful fellow immigrant), his first reaction is still that the successful person is not too different from himself. But crucially, his second thought is that he too can be successful if he works hard.

In game theory terms, our basic mentality within Pakistan is that life is a zero-sum game: if somebody else is winning then I must be losing. If somebody else has money, then I must be worse off.

Conversely, the second approach to life found more often outside Pakistan is nonzero. In other words, the fundamental assumption is that we can all be better off with nobody being made worse off.

Admittedly, my observations are gross oversimplifications and entirely unscientific. But let me ask you a question: how many times have you met or heard of a successful businessman and thought, “If only I work hard, I can be successful like him”? And how many times have you heard somebody tell you that some successful person was actually a fraud, that his family was a bunch of thieves, and that he had accumulated his fortune by bribing all and sundry?

One classic example of the latter approach can be seen in the book penned by the son of the late General Iskander Mirza, “From Plassey to Pakistan”. In that book, the author repeatedly describes Ayub Khan as “the son of a sowar.” Now, say what you like about the late Field Marshal, but he was not only the son of a trumpeter: he was also a graduate of Sandhurst, a well read and educated man, and the President of Pakistan for the better part of a decade.

The reason why these approaches matter is because they fundamentally affect the way people interact in life. If I believe that life is a zero-sum game, I will not help anybody and I will spend a significant portion of time trying to screw over anybody who gets near me or my business.

The only time I will go out of my way to help somebody will be if I believe that I am immune to attack or if I already have so much that I don’t care about making more, both of which are rare events. On the other hand, if I believe that life is a nonzero game, I will be willing to cooperate with others on the assumption that we can all succeed together.

All this is good in theory but can we change social attitudes? At one level, changing social attitudes towards wealth will be difficult unless we change the nature of wealth. For most people in Pakistan, wealth means land. Land is a zero-sum resource. If you have more land, I have less. Fortunately, land is no longer the only form of wealth. But it will take a long time and a lot of social change before people stop thinking about wealth in old ways.

What then can be done in the meantime? Well, there came a time in the late 1970s when the late Deng Xiaoping made the statement “to get rich is glorious”. That statement may stick in the craw of our peculiar brand of limousine liberals who drive from rally to rally in well-cushioned comfort, but I don’t think we have any option but to accept the desire for worldly success as a valid choice.

If we stick to zero-sum politics, elections will always be about getting more for our own group as opposed to getting more for everyone. And until that happens, Pakistanis will continue to be their own worst enemies.

Costs of economic illiteracy

The Ministry of Water and Power is now once again trumpeting the 1995 Hydel Policy. But building dams takes time. Getting other people to build dams for you takes even longer. And so, in the meantime, we remain stuck with the consequences of other people’s economic illiteracy

Like most other crises in this country, the current power crisis has deep roots. To understand why we have no electricity today, start by going back to 1986 when a committee of senior bureaucrats was tasked with trying to find out the cost of electricity as produced by Tarbela.

The answer should have been fairly simple: take the cost of building the entire project and divide by the amount of electricity being produced. Unfortunately, what the juniouses did (to use a term coined by my six-year-old son) was to assume that the main purpose of Tarbela was to store water and that the production of electricity was simply an incidental benefit.

So while figuring out the cost of the project, they left out most of the cost of the dam itself and instead only used the cost of the turbines and other generating stuff.

To put it bluntly, this was not a “snart” move (again to use my six-year old’s vocabulary). It was as if I had asked somebody what the cost of buying a new Corolla was, and their response was, “well if somebody gives you a Corolla for free, it costs about one rupee per kilometer to run”.

This initial and wondrous leap of logic has poisoned the well of hydel power policy ever since. The first consequence was that when the federal government was trying to figure out how much it should be paying the NWFP as hydel profits, the figures went haywire. The Frontier government is currently claiming that the federation should pay it 90 paisas/kwh for hydel projects in the province, like Tarbela. On the other hand, if a private party sets up a hydel project in the NWFP, the Frontier government only wants to be paid 15 paisas/kwh. In short, the Frontier government wants to charge the federal government six times what it charges private parties for the privilege of building and operating a hydel project in the NWFP.

The second consequence of this original leap of logic was that people in WAPDA became convinced that hydel electricity should be available for next to nothing. And it is true: if somebody gifts you a large dam, generating electricity costs you next to nothing. All you need is somebody to gift you the dam.

Fast-forward now to 1994 when BB’s second administration came up with a new power policy. The policy itself was well intentioned and effective. The idea was to build credibility by buying the first 1,500 megawatts at relatively high prices, and then buy another 1,500 megawatts at relatively lower prices. The next step was to use the breathing space being provided by the purchase of expensive thermal energy to procure cheaper hydel energy (but which takes a lot longer to build).

The first half of the policy went swimmingly. The only problem was that the rates offered were so attractive that everybody and their mother wanted to get into the action. As a consequence, Pakistan committed itself to buying 4,500 megawatts of expensive (but desperately needed energy) rather than only 1,500 expensive megawatts. Whether this happened for valid reasons or because developers “persuaded” the relevant ministers to change their mind is a moot point.

When Mian Nawaz Sharif took over in 1997, his reaction to the situation was the same as that of a wadera confronted by an uppity peasant. The IPPs were harassed, their executives were threatened and in one notorious incident, the son-in-law of one IPP executive was charged with the allegation most favoured by warring feudals: “gai chori”.

In the middle of all this mess, those poor sods who had responded to Pakistan’s call for hydel energy and sent millions on feasibility studies were thrust out into the cold. Five projects had been granted letters of support under the 1995 Hydel Policy and not one of them was allowed to proceed further. Those who tried to stick it out were reduced to begging WAPDA to come to terms with them. And that is where our story comes full circle.

In 2002 and 2003, there were private hydropower developers who were literally begging WAPDA to buy electricity from them at 4 cents per unit. WAPDA refused even though WAPDA’s refusal meant that it was in turn forced to buy electricity at 6.5 cents from the thermal companies. WAPDA refused because according to its financial juniouses, hydel energy was not supposed to cost more than 3 cents per unit. Of course it does not; but only if somebody builds you a dam for free.

The good news is that somewhere along the line, economic reality seeped through. The Ministry of Water and Power is now once again trumpeting the 1995 Hydel Policy. But building dams takes time. Getting other people to build dams for you takes even longer. And so, in the meantime, we remain stuck with the consequences of other people’s economic illiteracy.

Serving Justice

There may be different points of view about the CJP and whether he was acting in an appropriate manner prior to November 3. But there are no two views about the fact that prior to that date he was indeed the CJP and had served the cause of justice in Pakistan as a lawyer and as a judge for many years

On June 9, 1954, Senator Joseph McCarthy was conducting hearings related to his claim that there were a number of communists and communist sympathisers in the US government and armed forces. As part of his vendetta, McCarthy made a gratuitous assault upon a young lawyer named Fred Fisher, not because Fisher represented a target for him, but because Fisher worked for a law firm whose senior counsel represented the Army in the Congressional hearings.

The senior lawyer made a number of attempts to dissuade McCarthy, but to no avail. Ultimately, when it became clear that McCarthy intended to take steps which would destroy the young lawyer’s career, the senior lawyer was finally goaded into a fitting response.

“Until this moment, Senator, I think I never really gauged your cruelty or your recklessness. Let us not assassinate this lad further, Senator; you’ve done enough.” And when McCarthy indicated that he would not rest, came the final response: “Have you no sense of decency, sir? At long last, have you left no sense of decency?”

I am reminded of these words and of that incident by the headline in today’s newspaper which informs me that a learned justice of the Honourable Lahore High Court has asked Mr Justice Iftikhar Muhammad Chaudhry, the Chief Justice of Pakistan, and Mr Justice Rana Bhagwandas, the senior puisne judge of the Honourable Supreme Court of Pakistan, to appear in person — repeat, in person — to come and explain why they refuse to vacate their official residences.

There are a number of points to note in this regard. The first point is the most obvious: the two learned judges have not vacated their official residences as yet because they are being kept under house arrest in those official residences by a large contingent of armed police officers. This is a known fact and the court may, if it pleases, take judicial notice of it.

The second point is tactical. Let us assume, for the sake of argument, that the writ in question (that is, the one in which this order seeking the personal attendance of two judges has been passed) is not the product of an individual grievance but has instead been “encouraged” by some well-wishers of the current establishment. If so, my question is this: Are you out of your mind?

This government has with great difficulty and with considerable cost to its self-image managed to incarcerate its chief justice. It doesn’t need telling that this move has not gone down well with lawyers and that the legal community has had to be thrashed and beaten into a sullen silence. If the two learned gentlemen whose presence has been requested in person were to actually appear in person, the hearing would also be attended by every single disgruntled lawyer in person,in which case the riotous consequences would also be predictable.

And what if, a lawyer for the chief justice appears and says that he cannot appear in person because he is under house arrest? Or worse still, what if a lawyer for the chief justice’s lawyer appears and states at the rostrum that neither the chief justice, nor the senior puisne judge, nor their counsel can appear because they are all under house arrest? What then? What will the learned and honourable judge of the Lahore High Court say then? Will he proceed with the case?

If so, the proceedings will be a farce. On the other hand, will the honourable judge of the Lahore High Court have the galls (to use a popular malapropism) to direct the police to produce the two vagabond judges and their lawyer? If so, will the police listen? And if not, why expose yourself in such a cruel manner?

The final point then is moral. Whether one likes it or not, there are different points of view about the Chief Justice of Pakistan and whether he was acting in an appropriate manner prior to November 3, 2007. But there are no two views about the fact that prior to that date he was indeed the CJP and had served the cause of justice in Pakistan as a lawyer and as a judge for many years.

The same applies with equal force to Mr Justice Rana Bhagwandas. It may be that because of the shifting tides of political fortune, these two gentlemen are no longer able to continue as judges till the end of their constitutional tenure but that does not take away from the fact that they certainly were judges of the Supreme Court of this country. And that even as former judges, they are entitled to be treated with a minimum of respect and dignity.

And so I ask: Have you no sense of decency, sir? At long last, have you left no sense of decency?

The PPP manifesto

VIEW: The PPP manifesto —Feisal Naqvi

Out of all the political parties out there, it is the Peoples Party that should have some degree of knowledge about labour laws. The fact that the newly launched People’s Party manifesto is conspicuously deficient in this regard does not make me feel good even though labour laws have very little relevance to my life

Do you know about Webcop? No? Well, don’t worry. The People’s Party does not know anything either. The only problem is this; your lack of knowledge is understandable: the PPP’s ignorance is criminal.

Webcop stands for Workers and Employers Bilateral Council of Pakistan. In simple terms, Webcop is an organisation in which representatives from workers groups as well as from employers associations sit down and try to hammer out a consensus on law and policy issues before taking their agreed agenda to the government. More importantly, Webcop represents a new way of handling labour issues in Pakistan, one that actually works.

The traditional way to handle labour issues in Pakistan has been for the Government to sign every single international document in sight and then ignore them in practice. At last count, Pakistan’s body of labour laws included more than 160 different laws, regulations and rules, most of which are entirely ignored in real life. The review mechanism of these laws has theoretically been that great bureaucratic monster known as “tripartite” commissions; “tripartite” because the three stakeholders involved in discussions are labour, employers and the government.

In the case of Pakistan, tripartite commissions have conspicuously failed because both the workers and the employers see no incentive to compromise. Instead, both sides stake out extreme positions, leaving the government with the unenviable job of trying to figure out the reasonable middle ground. Or of just letting the whole mess stew around until it becomes somebody else’s headache.

In contrast, Webcop provides a bilateral meeting ground in which the two sides with the most at stake try to come to a common resolution. When they do, they take their common position to the Government, which is then normally quite happy to adopt the consensus position because it knows that all stakeholders will be happy with the proposed change (or at least, happier). And all of this is actually happening in the Land of the Pure where, as we all know, nothing normally ever works.

In the case of the Peoples Party, its apparent ignorance about what is generally considered to be the single most positive development in labour issues over the past decade, if not more, is particularly galling. In the first instance, the Peoples Party has been out of power for more than a decade. If nothing else, the people in its ranks have been afforded ample time to think about what things they would like to fix about this country. Evidently, they spent that time examining real estate opportunities in Dubai.

More significantly, the People’s Party has traded for years on its reputation as the pro-labour party. To the extent that class lines can be drawn, the PPP certainly can make a claim as the standard bearer for the rights of the industrial proletariat. But mouthing platitudes is not enough.

At this point, some readers may be wondering why am I getting all bent out of shape (as the Americans say) about an obscure omission in one part of the PPP’s manifesto? After all, who gives a damn about this stuff?

Nobody, and that is the problem. At this point, our political parties are all united on a single point agenda: anyone but Musharraf. But what is the second point of their agenda? What will happen if some fairy godmother waves her magic wand, sends the army back to the barracks and restores the judiciary? What then?

The point I am trying to make here is that the real hard job of governance is boring stuff, stuff like knowing the difference between trilateral and bilateral negotiations while renegotiating labour laws. If we do not get that stuff right, Pakistan will continue to flounder, irrespective of whether we have a democratically elected leader, irrespective of whether we have an independent judiciary, and irrespective of whether the army goes back to the barracks.

To repeat, out of all the political parties out there, it is the Peoples Party that should have some degree of knowledge about labour laws. The fact that the newly launched People’s Party manifesto is conspicuously deficient in this regard does not make me feel good even though labour laws have very little relevance to my life. Because if the PPP manifesto is useless when it comes to things on which they should have expertise, then it requires a massive leap of faith to believe that the PPP’s intellectual prowess will be more impressive with respect to other issues regarding which they have no historical expertise (as in just about everything else besides labour laws).

At the end of the day, it is the job of our political parties to attract the people with the requisite knowledge about policy issues. Looks like they failed.

Dangerous Old Ladies

VIEW: Dangerous old ladies —Feisal Naqvi

The time has come now for the United States to realise that it is the citizens of Pakistan who are indispensable, not their army. We have lives, we have views, and until recently, we had rights. If America wants to win our hearts and minds, it can start by giving a damn about them

Two weeks ago, General Pervez Musharraf imposed martial law in Pakistan for the second time. The main reason given by him was that the courts were interfering with his efforts to crack down on religious extremists.

If that reason had been correct, the Pakistani government would have spent the intervening period happily arresting every religious extremist in sight (and there are plenty), without fear of an overly zealous judiciary. That has not been the case.

The first mass arrests which followed the declaration of ‘emergency’ resulted in the rounding up of 54 people who were attending a meeting in Lahore of the Human Rights Commission of Pakistan.

The people arrested were neither overtly religious nor extremists. In fact, out of the 54 persons arrested, 24 were women, several of whom were well past sixty. One of the ladies is the principal of a highly regarded school for girls. Another is an internationally renowned artist and the former principal of Pakistan’s leading college of fine arts. What exactly did General Musharraf think would happen if this monstrous gathering of old ladies was not stopped? Assault with a deadly handbag?

The men there were no bomb-throwing revolutionaries either. There was a Cambridge-educated economist, two Cambridge-educated lawyers, a lawyer who is the son of a retired Supreme Court justice and yet another lawyer whose father-in-law happens to be a serving justice of the Supreme Court of Pakistan.

These people are not a threat to anyone. Liberal, secular, highly educated and deeply concerned — they are the best this country has to offer. Why then is the United States supporting a regime that regards these people as a threat?

The average lawyer in Pakistan is no Oxbridge graduate but a liberal and generally secular outlook is common to the profession. Pakistan’s founder, Mohammad Ali Jinnah, was one of the finest advocates of his generation. Ever since his demise (and the birth of Pakistan), lawyers here have felt a special responsibility in trying to protect the values which he left to the fledgling state of Pakistan.

In 1968, when General Ayub Khan tottered after ten years of martial rule, the opposition was spearheaded by lawyers. When Zulfikar Ali Bhutto rigged the elections in 1977, the opposition was led by lawyers. When General Zia-ul Haq imposed “Islamisation” in the early 1980s, the opposition was led by lawyers. In 1995, when Benazir Bhutto tried to stack the judiciary with incompetent cronies, the opposition was led by lawyers. And six months ago, when General Musharraf tried to fire the chief justice of Pakistan, the opposition was led by lawyers.

The men and women who lead these protests are not people with cushy lives. Many of them live lives of abject poverty, scavenging for a handout on a daily basis among the hurly-burly of lower courts. They have no reserves to fall back on: those days when they do not find a client are days when their families go hungry.

Once again: why is the United States supporting this regime?

The answer is that the Bush administration has long regarded Pakistan as a captive client, one in which only the army needs to be won over. This is a dangerous strategy. The war against religious extremism will be won or lost in the hearts and minds of the Pakistani nation, not in the hearts and minds of the army.

We hear quite often that the United States has given over USD10 billion to Pakistan. But where has that money gone? Pakistanis can look all they want but they will find no concrete evidence of American generosity. So far as the ordinary man is concerned, there is no hospital, no road, no school and no dam which marks the benefits received by Pakistan in exchange for its cooperation with the United States. Instead, a substantial portion of the “aid” given to Pakistan is re-circulated back to the United States in the form of payments for new weapons systems. Not only does this give our generals shiny new toys to play with but it subsidises the defence industry back in the United States.

The time has come now for the United States to realise that it is the citizens of Pakistan who are indispensable, not their army. We have lives, we have views, and until recently, we had rights. If America wants to win our hearts and minds, it can start by giving a damn about them.

This column appeared earlier in the Daily Times.

Fruit Flies, Parliamentarians and Art. 58(2)(b)

Memory lives in the bones of living beings. To be more precise, knowledge passes from generation to generation via the transmission of genes.

 

A few years back, a biologist called Seymour Benzer conducted an experiment in which a fruit fly (drosophila melanogaster) got zapped with an electric current every time the fly extended its leg. After a while, the fly learnt not to extend its leg.

 

Benzer killed the trained fly, sliced and diced its genes, and then embedded the relevant bits into the chromosome of a regular untrained fruit fly. Lo and behold, the new fly was born with the knowledge that it better not extend its leg or else it would get zapped.

 

So, what do fruit flies have to do with Parliamentarians?

 

Well, one of the more enduring problems in Pakistan is the fact that our political classes have, since the dawn of time, concentrated on enlarging their slice of the pie. If they are honest people, as many of them are, their efforts to grab a bigger slice are for the benefit of their constituents. If they are crooks, as occasionally also happens in Pakistan, they just want a bigger slice for themselves. But in each case, the assumption is that we live in a zero-sum world in which the parameters are defined and unchangeable: expanding the pie to benefit everybody is simply not thought of as an option.

 

To return to fruit flies, the question then is as follows: how did this behavioral pattern get encoded into our genes? Why is that replacing the old generation of Parliamentarians with a new college-educated, gender-balanced group of Parliamentarians made absolutely no difference to politics in Pakistan? Why is it that five years after the current Assembly was elected and eight years after Musharraf took over, our political choices remain as limited as the ice cream menu at the old Quality in Liberty: “Chaaklait, vanilla, mixed.” Why?

 

The answer begins with the fact that the sub-continent has always been (or at least since the Aryan invasions in 1500 BC), peculiarly obsessed with distinctions of status. Yes, other societies have also had rigid social hierarchies, but nothing to match the glories of the caste system. And yes, the majority of Pakistanis are Muslims, but our obsession with status is only marginally less consuming than that of our Hindu brethren across the border.

 

The second piece of the puzzle is the fact that our societies (at least the non-nomadic portions) have always defined wealth (and status) in terms of land. However, land is and will always remain, a finite resource. Thus, if I own and possess a particular piece of land, no one else can own and possess that piece of land.

 

The third piece of puzzle is the way in which land was traditionally dealt with in our society. Unlike various countries in the West, where people could acquire permanent rights in land, the Indian subcontinent (or at least the Moghul empire) operated on the basis that all land belonged to the king, who was fully entitled to take it all away at a moment’s notice (and often did).

 

Not surprisingly, the end result of all these factors was a society which operated very much in the short term. After all, why invest in the future when your investment might well go to waste? And why consider sharing when that would only decrease your share of the pie?

 

But didn’t everything change with the British who gave permanent rights in land to everybody? Yes, but only to a limited extent. Social habits hardwired into people over thousands of years do not change as quickly as laws: even today the dominant form of wealth in Pakistan is land.

 

So, how does all this connect to Parliament? Well, today’s Parliamentarians are not just descendants of the land-owning elite of the subcontinent but of the representative bodies set up by the British.

 

Prior to 1909, the only Indians tolerated in the legislative councils of the British were hand-picked favourites. Subsequently, under the Government of India Act, 1909, elected local members of the legislative councils were allowed. However, local members remained a minority and even the English members of the councils were not in the habit of disagreeing with the governors.

 

In 1919, a first substantive step was taken towards representative government when various powers were devolved to the provinces. But as noted by one textbook, these changes “did not involve transfer of any element of responsibility or control to the popular representatives.” It was only with the Government of India Act,,1935 that real power was devolved to elected representatives, but with these powers came the first precursor of Article 58(2)(b). The Government of India Act, 1935 thus contained express provisions whereby the Governor of a Province could dismiss the provincial legislative assemblies and the Viceroy could dismiss the federal legislature.

 

The end result of all this was that when Pakistan became independent in 1947, it inherited a tradition in which local elites contented themselves with docile displays of loyalty in exchange for patronage while the real work of governance was done by the executive. In the famous words of Hamza Alavi, Pakistan was at birth an “over-developed state.”

 

India inherited the same problems as Pakistan but it dealt with them differently. Nehru choose to become Prime Minister while the Quaid e Azam choose to become the Governor General. The principle of legislative supremacy was therefore delivered stillborn in Pakistan, a fact which became very evident when Ghulam Mohammed dismissed the Constituent Assembly in 1954 – a deed then validated in the Tamizuddin case by a Supreme Court which felt strongly enough about the matter to note that the Constituent Assembly “lived in a fools paradise if it was ever seized with the notion that it was the sovereign body in the State.”

 

Flash forward now to General Zia’s 8^th Amendment and the insertion in 1985 of Article 58(2)(b) into the 1973 Constitution. No such provision had existed in either the 1956 Constitution or the 1962 Constitution. Interestingly, similar provisions had been provided in the 1954 Draft Constitution as well as the Interim Constitution of 1972 but had presumably been overridden by the constituent assemblies prior to final promulgation. Subsequently, Article 58(2)(b) was taken out in 1998 during Nawaz Sharif’s second tenure, and then finally reinserted in 2002 by General Pervez Musharraf via the LFO.

 

If we bring all of these elements together, what we see is the cycle which Pakistan has experienced over the past 60 odd years. We have a useless Parliament because the executive branch is too strong. And the executive is too strong because every time Parliament is entrusted with real power, it makes a hash of things while trying to maximize its short term benefits.

 

The question then is: who will break this cycle?

I don’t know, but if fruit flies can learn, then perhaps so can we.

 

 

Courtesy TFT

The ethics of being libertarian in Pakistan

My brother wrote to me and was unhappy about my being a libertarian.

I am extremely disappointed that you think of yourself as a
libertarian. In Pakistan no less, where inequality and poverty could
hardly be any worse. No public schools, health, or parks? Capitalism
deeply transforms social life, and the state needs to be there to
mitigate those consequences. How about Polanyi’s The Great
Transformation as a bit of an antidote to all that Hayekian gunk you’re
taking in?

My response to him was as follows:

Libertarianism, like any belief system, is only a starting point, not an answer to all questions. I believe the state should take care of law and order, health and education, and a few other things which the people will never be able to provide for themselves. However, my starting point for examining any public policy problem is to assume that it should be capable of being handled through private enterprise and initiative and that the state’s job is to provide the regulatory framework for fair competition. Please note that the reason why I like to begin with the libertarian foot forwards is because it allows me to believe that the state should stay the hell out of religion and areas of personal belief and sexuality. In Pakistan, people start with the opposite assumption, i.e. that we are an ideological state, then jump to the belief that the state should control the economy, and the end result is a totalitarian vision in which the state controls everything.

Anyways, that my excuse for being a libertarianism. As for Polanyi, bring him along and I will read his stuff.

Failed State. Or Not.

While trolling the net, I came across this article in FP which ranks Pakistan at no. 12 on the list of failed states in the world: that is, worse than Burma and North Korea. Now admittedly, I have never been to either of those two places but seriously, who the fuck is thinking this up. Or is it just that I am living in a bubble here in Lahore?

http://www.foreignpolicy.com/story/cms.php?story_id=3865&print=1

The Secret of Regression to Mediocrity

Success = Some Talent + Luck

Great Success = Some Talent + A Lot of Luck

        per Danny Kahneman

Discretion, valour and over-egged puddings

Discretion is sometimes the better part of valour. For the Supreme Court, this was not one of those times. The latest judgment with respect to the two-offices petitions may well be legally sound but it is, in all other respects, a comprehensive disaster.

 

Start with the fact that the legal issues in question were not just simple but already decided:

 

• Under Article 43, the President cannot hold any other office of profit in the service of Pakistan (such as the post of Chief of Army Staff).

 

• Under Article 41(7), the President has a one time – repeat, one time – exemption from Article 43 and can therefore continue to hold the dual posts of COAS and President till his first term comes to an end.

 

• If elected to a second term, President Musharraf cannot hold simultaneously any other office of profit in the service of Pakistan (such as the post of Chief of Army Staff).

 

• It is settled law that the disqualifications listed in Article 63 do not apply to presidential candidates, and that the President is only required to be “qualified” under Article 62. Yes, some people may disagree with those judgments but till set aside, they remain the law of the land.

 

• The standard argument in favour of the application of Article 63 to presidential candidates is that otherwise the Constitution would, gasp, permit the election of certified morons as President (even though certified – repeat, certified – morons cannot become MNAs).

 

• The simple answer to the shock, horror argument is that MNAs are elected by the people of Pakistan while the President is elected by Members of Parliament and the Provincial Assemblies. It is reasonable for the Constitution to assume that the distinguished Members of Parliament will not elect a certified moron to be President. The assumption by the Constitution that the people of this country need to be restrained from electing certified morons to public office shows commendable foresight.

 

So, if the legal issues were so clear, why did the Supreme Court not simply decide them?

 

Well, for one thing, the one thorny issue which was – and remains – undecided – is whether or not presidential candidates must resign from other public offices prior to being nominated, prior to the actual voting, or only prior to being sworn in as president. Personally, I don’t think even President Musharraf would have cared one way or the other so long as the Supreme Court had explicitly allowed him to run for a second term. But unfortunately, the Supreme Court decided not to give any decision on the merits of the petitions but instead rejected them on “maintainability” grounds.

 

There are two possible grounds on which the Court could have held the petitions non-maintainable. The first ground would be the position that the petitions do not meet the requirement of Article 184(3) of the Constitution, either in that they do not relate to the enforcement of fundamental rights or because they do not relate to matters of public importance. The second ground would be the position that the petitioners should avail the alternative remedy of approaching the Election Commission of Pakistan first.

 

Frankly, I cannot figure out for the life of me how either argument can be maintained with a straight face. Yes, maintainability is a completely discretionary issue and like beauty, lies completely in the eye of the beholder; but even so.

 

Simply put, the entire country’s attention had clearly been riveted on these petitions for about two weeks. The matter was therefore obviously of “public importance.” And since the matter related to the qualifications of the President, it equally obviously did concern the fundamental rights of every Pakistani. The “alternative remedy” point is insubstantial because it was obvious that if sent to the Election Commission, the matter would immediately return back to the Supreme Court. Indeed, it already has.

 

More importantly, if the petitions in question were not maintainable, then the issue of maintainability should have been framed as a separate preliminary issue and decided in advance. Instead, the case was allowed to occupy centre-stage for two weeks at the end of which all the public learnt was that the petitions were not fit for hearing. The end result is that both the public and the lawyers feel as if they have not been accorded sufficient respect: no wonder then that the black-coats are back on the streets.

 

Speaking of the legal community, is it too much to ask of the Government not to beat them up? Does the Government not realize that such brute tactics are bound to rebound in its face and lead to further protests.

 

In simpler terms, it was very clear that the two offices issue had not galvanized the nation like the issue of the chief justice’s removal. People therefore saw the two offices issue as a “political” issue whereas they had seen the reference issue as a “moral” issue, i.e. one beyond politics. By beating up lawyers and journalists, the government has again managed to convert a non-threatening “political issue” into a “moral” issue. There are plenty of people who think that a Musharraf (out of uniform) is still the lesser of two evils (the other evil being either BB or NS back in unrestrained mode). There are very few people who think the Government has the right to beat up journalists.

 

The next few days for the Government are therefore going to be tense, in which it (yet again) tries to recover from self-inflicted injuries. If the situation calms down (probably with the help of a sacrificial lamb or two), the Musharraf juggernaut can start rolling again. But if the iron fist approach is once again adopted, it will only radicalize the people against the government. In that case, all bets are off.

 

Discretion is sometimes the better part of valour. For the Government, this is one of those times.

Hello world!

Ok. This is the article sent by me to TFT yesterday re the Sup Ct decision on the two offices issue. pudding-over-egged.doc