Feisal Naqvi

Necessary Evil

In Uncategorized on October 21, 2015 at 10:18 am

Now that the Supreme Court has settled the issue of whether or not military courts are legal, there remains a secondary issue: Are they necessary?

Ejaz Haider and other columnists have argued that given the number of death penalty cases adjudicated by our existing antiterrorism courts, there was no need to drag in the military. Instead, the argument goes, given a few tweaks—like the addition of a witness protection program—the antiterrorism courts were and are perfectly capable of deciding the cases of even hardcore terrorists. One can concede the argument regarding the potential effectiveness of the antiterrorism courts and still disagree with it.

In the first place, the point behind the establishment of military courts was not to prosecute terrorists in a more effective manner. Instead, the point was to make a statement of intent; to declare that the state had finally recognized that it was facing an existential threat and that it would now be using every single weapon in its possession, including those previously thought unconstitutional, to deal with that threat.

Lest we forget, the second most popular party in Pakistan spent the 2013 election season demanding that the Pakistani Taliban be recognized as stakeholders with genuine grievances and arguing that the campaign of terror being waged in Pakistan was what we deserved for fighting “America’s war.” The election was followed by a joint decision of all political parties to “negotiate” with the Taliban. This then resulted in a completely farcical situation whereby various unelected people met with other unelected people demanding the Constitution be jettisoned, elections be ignored, and 200 million Pakistanis be enslaved to their whims.

Look around now. The Taliban is on the run. Terrorist incidents have been reduced by 70 percent. And nobody is demanding that we go negotiate with the Taliban anymore. Instead, for the first time ever, the Taliban has been recognized as a direct threat to the existence of the state. In other words, either the state of Pakistan defeats the Taliban or vice versa. There is no middle ground now. And that, at least in my book, constitutes progress.

Shortly after 9/11, Alan Dershowitz wrote an article about how torture should be made permissible, subject to judicial oversight. As a tool of warfare, the Harvard law professor argued, it was better that torture was made subject to some sort of state control because it would inevitably get used. Dershowitz is no stranger to controversy, but this was generally seen as a step too far. A decade and a half later, the revelations of Abu Ghraib and Guantánamo have lost their power to shock. We all know now that the U.S. tortured people. More importantly, we know that torture was not just a one-off mistake by overzealous subordinates. Instead, it was state policy, sold to it by well-educated psychologists and bought avidly by leaders desperate for success against an inchoate enemy.

When a state fights for its survival, it will use whatever weapons it has at its disposal—just as a man fighting for his life will have no hesitation in ignoring Marquis of Queensbury rules. There is a valid argument to be made for procedural halfway houses. Yes, it would be good if all accused persons were only investigated and treated as per the highest standards. But during a war, it is often not possible to implement those standards. And if the choice is between some standards and no standards, one will happily settle for some standards.

Obviously, as the proposal for torture warrants shows, it is possible to push that argument too far. No matter what the circumstances, torture should not be permissible. But torture and military courts do not occupy the same degree of undesirability. What military courts have done is given the confidence to the Pakistani establishment to bring out its ugly secrets and subject them to some minimal degree of scrutiny. People who were once “disappeared” have now “appeared” in military courts. While judicial review is very limited in theory, our judiciary has decades of practice in evading legislative, and even constitutional, constraints. The language of the late, lamented Article 58(2)(b) of the Constitution provided that the President could dissolve the assemblies “in his discretion” and that no court was allowed to question that discretion. And yet the Supreme Court rejected that argument back in 1993.

To put it in simple terms, judicial review is the thin end of the wedge. More importantly, that crack is already widening. When the first challenge to a military court verdict was filed in the Supreme Court, the challengers were told instead to go to the appropriate High Court. This decision, by itself, radically increases the amount of scrutiny being brought to bear on military court decisions. The Supreme Court, as befits its stature, is an institution of great solemnity in which a limited number of cases are heard in hushed silence. By comparison, the High Courts are a bustling fish market in which the men of law haggle furiously over issues of justice. The direction to approach a High Court first also neatly places the military courts in their proper place, i.e., subordinate to both the High Courts and the Supreme Court.

All very well, you may say, but how does the system work in practice? It is still too early to say but, at least in my view, the signs are encouraging. One of the first challenges to a military court verdict alleges that the convict was a juvenile. Reportedly, that challenge has led to a review of the ages of all under-trial prisoners in military court cases. That constitutes progress. Before I get charged with being too easy to please, let me state clearly that I dearly wish I lived in a country in which military courts were not a necessary evil. But I don’t. I live in Pakistan.

This column appeared in the 21 October 2015 issue of Newsweek Pakistan

The Great Petrol Crisis

In Uncategorized on February 20, 2015 at 5:54 am

Remember the great petrol crisis of 2015? Remember how we all had to stand in lines for hours and hours to get a gallon of the precious liquid fuelling our cars? Remember all the angry screeds calling on the entire PML-N cabinet to resign? Remember the pundits gravely proclaiming that there was very evidently no system of governance in Pakistan? Remember all the hints, some open and some whispered, that none of this would have happened if the faujis were in charge?

Yeah, I thought not.

So what, you might reply. Look at how the government has mishandled the Shikarpur tragedy. Look at how upset the MQM is these days. Everybody must resign!

And my response, as I once told a junior lawyer in my office, is as follows: grow the hell up.

Let’s begin at the beginning. The great petrol crisis of 2015 was not a sign that there is ‘no system’ in Pakistan. Instead, it was a sign that we do have a functioning petrol supply system in Pakistan; in fact, one that we take for granted. The screams we all heard on social media and the op-ed pages of various papers were of people suddenly discovering that things were no longer working as they usually did. Those screams were caused by the breakdown of the system, not by the absence of a system. If we truly had no petrol supply system, we would not be driving cars. Instead, we would all be riding around on horses, because the supply for horses relies on locally grown plants and not fossil fuels imported from the Gulf.

Perhaps you think all of this is mere wordplay. After all, even if one concedes that there is ‘a system’ in place, isn’t it true that it is a terrible system, that everything needs to be changed?

Well, it’s not quite that simple.

We inherited the fundamentals of our governance structure from the British in 1947. With some exceptions, the basic architecture is sound. But like all old buildings, this one too is showing its age. In some cases, it needs repairs. And in some cases, it needs a major overhaul.

The most obvious candidate for an overhaul is the law and order system. As many people have written (notably, my good friend Ejaz Haider), the fundamentals of our policing mechanisms are not appropriate to a modern democratic system. The basic idea behind our police system, both as inherited and as it exists today, was to allow white people to beat brown people into submission. Serving the needs of the people was not a prime concern for the police system. Instead, the point of the system was to serve the interests of the rulers. And in its own crude fashion, the police system has performed that function ever since.

By comparison, the fundamental high-level governance mechanism in Pakistan (i.e. permanent civil servants embedded in ministries and answerable to democratically elected ministers) does not – at least in my view – require an overhaul. What it does require is some serious tinkering.

The main point that needs to be understood is that the age of the omni-competent bureaucrat has now passed. Yes, there was a time when pipe-puffing DMG wallahs would come back all bright and shiny from Cambridge and have the ability to handle whatever was thrown at them. But that is no longer true.

To begin with, and I say this with great respect, the quality of DMG officers is not what it used to be.

The British ensured that their civil servants were of the highest quality through the simple expedient of (a) paying them lavishly; and (b) giving them job security. Both those pillars have since disappeared.

Joining the civil service today is an act of fiscal insanity (at least if you intend to remain honest). As for job security, the constitutional protection afforded to civil servants was taken away by ZAB and replaced by a statutory right of action. Today’s civil servants are but one man’s whim away from the ‘khudday line’. What we have now is the worst of all possible worlds: bureaucrats who are both incredibly powerful and incredibly insecure.

I don’t want to slam all civil servants as incompetent crooks. If anything, I remain astonished by the plethora of incredibly intelligent and dedicated civil servants to be found in Pakistan. But you can’t run a country with the occasional exceptions to the consequences of national stupidity.

More importantly, today’s problems are orders of magnitudes more complicated than before. This is not to say that governance was simple in 1947. Instead, my point is that the expectations of government are that much higher today. No matter how intelligent, how competent, and how decent the best of today’s bureaucrats may be, today’s Pakistan requires specialist administrators – not generalists.

Note, replacing DMG officers with specialists is not going to make problems disappear either. Ironically, the petroleum sector is one of the few sectors where specialised governance has been introduced. What I mean by that is that in 2002, a large portion of the regulatory functions of the Ministry of Petroleum and Natural Resources were hived off into a separate, ostensibly independent entity called the Oil and Gas Regulatory Authority.

The obvious question is then this: why does governance still suck in the petroleum sector?

The short answer to the obvious question is that reforming structures on paper is very different from actual reform on the ground.

For example, the Ogra Ordinance clearly specifies that its chairman shall be “an eminent professional of known integrity and competence with a minimum of twenty years of related experience.” Under the PPP regime, the chairmanship of Ogra was entrusted to a gentleman by the name of Tauqir Sadiq, an individual whose credentials when examined by the Supreme Court, seemed to consist mainly of a law degree from a bogus university. Sadiq subsequently fled to the UAE from whence he was recovered after a long legal battle. He is now the subject of a corruption case filed by NAB.

Sadiq was succeeded by Saeed Ahmed Khan, a retired bureaucrat. Prior to his retirement, Khan had worked as a federal secretary in the Ministry of Information Technology, Ministry of Overseas Pakistanis and the Statistics Division. If you fail to note any experience in the petroleum sector, you will not be the only one. At the time of his appointment, one newspaper reported in blunt terms that Khan had “no relevant experience of regulating the oil and gas sector.” Fast forward now to January 2015 with Khan indignantly denying any responsibility for the Great Petrol Crisis.

Let me boil it down for you. Governance structures matter. If your governance structures are flawed, even putting the best people in place won’t change anything. But even if you have the best governance structures, you still need competent people in place. And if you want competent public servants, you still need to do what the British did: pay them very, very well; and protect their dignity.

Obviously, this is not the only path to a better performing government. Obviously, Pakistan can continue with its age old policy of paying peanuts. But as the saying goes: you pay peanuts, you get monkeys.

This column was published in The News on 7 February 2015

Fifty Shades of Khaki

In Uncategorized on February 20, 2015 at 5:53 am

One swallow does not a summer make. By the same token, the odd pundit beseeching the armed forces to take over is no signifier of the national mood. Unfortunately, we seem to be well past the lone pundit stage.

There are two variants of anti-democratic sentiment currently making the rounds.The first variant is the standard ‘Bring in the Faujis’ melody. As we all know, this very same song was not only a hit in 1958, 1969, 1977 and 1999 but remains perennially popular in every year and every decade.

Not only do the lyrics remain the same every year, but so does the logic: the civies suck at their job (see eg lack of petrol, gas, electricity). Hence we can’t do worse than by asking the faujis to do the job of the civies.

There are multiple flaws with this argument. I concede that democratically elected civilians suck at governance. However, just because civilians suck at their job doesn’t means that faujis will do better at governance issues. Running a country and running an army are two entirely different things. A hammer is good for bashing nails. But it’s not very good at doing the job of a screwdriver.

More importantly, I fail to see any clear evidence that the faujis don’t suck at their job. Yes, General Raheel Shareef seems to be making intelligent decisions these days and the ISPR has either got the Pakistani equivalent of John Lennon working for it (or else has secretly hired him). But let’s look at the larger picture.

The army has been in charge of our national security policy since forever. And our national security situation is as dysfunctional as all of the things occasionally entrusted to the lowly civilians. To take just one small example, our largest province is in armed revolt, as it has been on and off since 1970. We used to bomb Baloch rebels back then. Now we just have them picked up and ‘disappeared’.

Lest we forget, the genius who came up with the concept of ‘strategic depth’ was the then head of our army. Apparently our national salvation lay in integrating Afghanistan into our battle plans so that if pressed, we could retreat across the border there. We’ve never had reason to retreat across the Durand Line. On the other hand, a whole host of jihadi nutcases regularly troops back and forth across the Durand Line, making life hell for us over here in Pakistan.

Let’s skip internal security and look at external security issues. We have a terrible relationship with Afghanistan, a worse one with India, and even the Iran border now features attacks by ‘non-state’ actors. We are nowhere close to making Kashmir a part of Pakistan, the Chinese privately think of us as annoying beggars and the Americans publicly think of us as a bunch of swindlers.

But there is an even better argument available. You see, when it comes to military competence in matters of civilian governance, we don’t need to rely on either logic or the army’s past record on national security issues. Instead, we have the benefit of decade upon decade of military rule to show us exactly what happens when you put military men in charge.

Ayub Khan’s ‘Decade of Development’ produced Bangladesh. Ziaul Haq gave us the Hudood Ordinances and the predecessors of the savages who murdered children in Peshawar. Musharraf gave us Kargil, the ‘Good Taliban/Bad Taliban’ distinction and the blessedly limited tenure of Chaudhry Shujaat as prime minister of Pakistan.

Let me freely concede that I am being unfair. General Musharraf’s first three years in power saw a concentrated effort at bringing disinterested technocratic governance to Pakistan, and yes, those boys had a bunch of good ideas. Unfortunately, most of them haven’t lasted. Remember police reform? Killed by Musharraf’s own political stooges. Local government reforms? Ditto. And the list goes on.

Lasting political reform requires a hell of a lot more than good ideas. It requires the consistent application of political will at every level of governance, not just at the highest. No dictatorial regime can boast that public commitment. That is precisely why every military dictator sooner or later crowns himself president with the help of the Jamaat-e-Islami or something like it. And since the venality of politics has remained undiluted, it then quickly overwhelms all the bright ideas. Which is why military/technocratic regimes seldom achieve lasting reform.

Let me put it as bluntly as possible: putting the army in charge of civilian politics is not only a great way to ruin our country, it also a great way to ruin the army. For God’s sake, let the army and the civies stay in their separate spheres. And let us bury this debate once and for all.

What then about the other variant of ‘democracy sucks’?

So far as I can tell, this apparently more sophisticated version consists of (a) moaning about how bad things are; and (b) being very shocked at being called a closet martial law groupie.

Let’s start with the first observation: yes, things are bad. Yes, our politics is dysfunctional. Yes, power is controlled by a narrow elite. Yes, the poor are disenfranchised. And yes, we seem to lack both institutional will and institutional competence to deal with our problems. On the other hand, let’s not confuse the system with the personalities currently dominant in it.

Democracy is a system. It doesn’t guarantee you anything in terms of governance, particularly in the short term. What it does give you – in the long run – is the best possible chance of achieving a functional, inclusive and humane political regime.

Complaining about things is not a solution. Actually doing something is a solution. If you don’t like the way things work in Pakistan, then do something about it. Get elected and voice your discontent in parliament. Set up an NGO and convince donors to help convince governments to do something positive. Lead people out on the streets. But whining about the dysfunctionalities of democracy is only acceptable if you plan to do something about it. As the saying goes, lead, follow or get out of the way.

Let me give one last example. Our ‘free press’ in Pakistan produces some of the most nauseating and putrid television in the known universe. Flip through the talk shows and you can find every shade of bigotry and hatred. But that doesn’t mean that we give up on the concept of a free press. What it means instead is that when the media oversteps its boundaries the rest of Pakistan lets them know that they have gone too far. To quote Jefferson, “the price of liberty is eternal vigilance.”

I have nothing against the army. I am thrilled that they finally seem to have understood the danger of religious extremism and I wish them all the best in beating the stuffing out of the Tangos. But I do not want them running the country. We have fought too long and too hard to get the little democracy that we have. It is in both the army’s interest and the civilians that we, the people, grow up; that we accept the responsibilities which come with democracy; and that we finally stop fantasising about strongmen in uniform.

This column was published in The News on 22 January 2015 under the title “Let us grow up and out of this debate”


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