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.

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.

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.

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.

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!

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?

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.

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.

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?

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.