Feisal Naqvi

Archive for March, 2008|Monthly archive page

Pedigreed bigotry

In Uncategorized on March 28, 2008 at 3:41 am

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Law and Economics for Dummies

In Uncategorized on March 28, 2008 at 3:36 am

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 It is about bloody time that these laws were changed.

 

This column was originally published in the Daily Times

 

Law and Economics for Dummies

In Uncategorized on March 28, 2008 at 3:36 am

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 It is about bloody time that these laws were changed.

 

This column was originally published in the Daily Times

 

A good end to a bad law

In Uncategorized on March 28, 2008 at 3:33 am

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

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

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

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

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

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

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

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

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

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

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

Getting what you pay for

In Uncategorized on March 28, 2008 at 3:28 am

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

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

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

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

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

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

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

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

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

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

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

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

Bullies and cowards

In Uncategorized on March 28, 2008 at 3:22 am

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

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

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

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

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

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

Amendment: the radical option

In Uncategorized on March 28, 2008 at 3:17 am

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

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

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

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

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

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

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

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

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

Money talks and bullshit walks

In Uncategorized on March 18, 2008 at 4:13 am

We are at war. And we are losing.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* This war cannot be won without public support.

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

* Military hardware does not count.

Black swans and dead turkeys

In Uncategorized on March 4, 2008 at 4:08 am

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

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

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

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

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

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

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

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

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

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

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

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

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