Feisal Naqvi

Archive for October, 2007|Monthly archive page

Law, Morality and the NRO

In law, Pakistan on October 22, 2007 at 6:31 am

There is law. And there is morality. The two are not always the same.

 The new National Reconciliation Ordinance has made many people very angry. Some people are angry because they think it is “immoral” for President Musharraf to have given a “Get Out of Jail Free” card to people who have looted the country. Others are angry because they think that the NRO is bad politics and that the President could have managed a transition without joining hands with Benazir. And then there are those who are angry because they think the NRO is unconstitutional.

 In their anger, those opposed to the NRO on legal grounds have been only too happy to latch on to arguments that the NRO is unethical or otherwise undesirable. But the relationship between law and morality is not that simple.

 To begin with, it is necessary to understand what the NRO does (and does not do). In simple terms, the NRO does three main things:


1.     It allows the Federal and Provincial  governments to “withdraw from the prosecution” of any person for any crime, if a committee headed by a retired judge concludes that the person concerned has been falsely involved for political reasons, and the case in question was initiated before October 12, 1999 and after January 1, 1986.

 2.     It provides that no sitting member of Parliament or a provincial assembly can be arrested without the permission of a parliamentary committee made up of equal numbers of government and opposition members.

3.     Most controversially, it provides that all pending trials and investigations under the NAB Ordinance against holders of public office which were initiated prior to October 12, 1999 stand “withdrawn and terminated with immediate effect.”

The reason why the first provision is controversial is because traditionally, withdrawal from prosecution has only been allowed with the permission of the Court trying the matter. Furthermore, in the Asfandyar Wali case, the Supreme Court struck down the power of the Chairman NAB to unilaterally withdraw from prosecution after reaching a deal with an accused person. However, a conditional (and probably coercive) withdrawal based upon a quid pro quo is very different from an unconditional withdrawal by the government. It is therefore doubtful whether the Asfandyar Wali holding would apply to the NRO. But even if it did, it would still only mean that the provision of the NRO in question would be read down to require the approval of the Court before the government would be allowed to withdraw.

So far as the second provision is concerned, a quick survey of Pakistan’s chequered past should be enough to convince any skeptic that parliamentarians (particularly those from opposition parties) are often arrested on the flimsiest of grounds. Allowing the arrest of parliamentarians only subject to the permission of a bipartisan commission therefore seems eminently sensible. It should also be noted that there are other countries in the West, such as Italy, also recognize a limited degree of immunity for parliamentarians precisely for the same reasons. Of course, this provision is quite susceptible to abuse. But it seems to be common ground amongst all concerned that we have no option but to entrust our future to the elected representatives of the people.

The main ground of opposition to the third provision of the NRO is that it violates the fundamental right to equality recognized by Article 25 of the Constitution. If you are going to forgive politicians, the argument goes, then you might as well forgive every single thief in Pakistan: after all, what is the difference?

A good (and brief) definition of the right to equality is the obligation of the government to treat like things like (and to treat different things differently). In legal terms, the debate over the provision is the debate over whether or not “holders of public office” constitute a separate and distinct class. If politicians are different from you and me, then they can obviously be treated differently.

The biggest problem for the opponents of the NRO is that the provision in question modifies the NAB Ordinance which applies only to holders of public office by making them subject to several crimes. Those crimes, by and large, do not apply to ordinary people or even ordinary thieves. So, if the NAB Ordinance is at all valid, then holders of public office must be deemed to constitute a separate and distinct class.

To restate the argument, the NAB Ordinance is predicated on the assumption that politicians are a shifty bunch and deserve to be placed under special scrutiny and subject to special crimes. The NRO modifies the NAB Ordinance by saying that while politicians may be a nasty bunch, they should not be held liable for cases instituted prior to October 12, 1999. The argument that the NRO is invalid because it treats politicians separately from normal people (or even normal thieves) is therefore self-defeating. If politicians are a separate class for the purpose of placing extra restrictions on them, then they are also a separate class for the purpose of removing certain of those additional restrictions.

A separate argument which can be made is that the cases in question are all cases instituted (or continued under) under the Ehtesab Act, 1997 and then further continued under the NAB Ordinance, 2001. The decision to continue those cases under the NAB Ordinance was a legislative choice. If so, it follows that the option to discontinue those cases is also available to the legislature.

There are of course many other arguments both for and against the NRO, but at this point I want to acknowledge that there is certainly a huge outpouring of moral disgust with respect to the NRO. I mention this because all of the legal arguments in the world sometimes count for nothing when faced with the actual anger and revulsion of a society.

My first assignment in law school was to analyse the constitutionality of admission requirements to the public universities of Mississippi, one of the poorest and most racially divided of America’s states. So far as I was concerned, the issue was simple. The admission requirement in question was facially neutral – a minimum SAT score of 830 – and the fact that it produced racial segregation was, in my view, unfortunate but irrelevant.

As it so happened, the Supreme Court of the United States disagreed with me, 9-0. In the view of their lordships, the fact that a rule was facially neutral was irrelevant if it did, in fact, produce racial segregation. What they noted instead was that the time for excuses and polite subterfuges had come to an end. Segregation was not just wrong but morally evil. And every rule which allowed this evil to continue was also wrong because in some cases, what counts is not just the process but the end result.

So, there is law. And there is morality. And sometimes, the two are the same.


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

In Uncategorized on October 9, 2007 at 9:07 am

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 8th 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

In Uncategorized on October 5, 2007 at 4:02 am

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.

In Uncategorized on October 5, 2007 at 3:54 am

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?


The Secret of Regression to Mediocrity

In Uncategorized on October 5, 2007 at 3:16 am

Success = Some Talent + Luck

Great Success = Some Talent + A Lot of Luck

        per Danny Kahneman

Discretion, valour and over-egged puddings

In Uncategorized on October 2, 2007 at 7:05 am

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!

In Uncategorized on October 2, 2007 at 3:26 am

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