Feisal Naqvi

Archive for April, 2008|Monthly archive page

Rule of Law v. Rule by Law

In Uncategorized on April 29, 2008 at 3:08 am

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

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

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

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

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

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

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

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

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

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

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

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

Monkey see, monkey no like

In Uncategorized on April 15, 2008 at 3:58 am

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

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

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

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

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

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

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

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

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

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

Some think it a matter of course that chance

Should starve good men and bad advance…

Young men know nothing of this sort,

Observant old men know it well

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

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

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

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

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

The Architecture of Justice in Pakistan

In Uncategorized on April 10, 2008 at 3:58 am

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Full Circle at 60

In Uncategorized on April 10, 2008 at 3:50 am

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

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

No, we are a lot further away.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Musharrafland v. Constitutionland

In Uncategorized on April 10, 2008 at 3:48 am

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

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

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

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

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

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

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

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

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

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

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

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

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

The Law Strikes Back

In law, Pakistan on April 10, 2008 at 3:41 am

According to one joke, there are 10 types of people in the world: those who understand binary and those who don’t.

For those of you who are not computer geeks, let me explain. Binary, or base two, is a form of counting in which there are only two digits: 1 and 0. So, in binary, the number 1 is still 1, but the number 2 is written as 10, while the number 3 is written as 11 and so on. This is in comparison to the more usual form of counting, which is to say the decimal (or Base 10) system, in which there are ten digits (1,2,3,4,5,6,7,8,9 and 0).

You might ask what all of this has to do with judges and parliament. The answer is that just like the meaning of the number 10, the solution to the issue of how judges are to be reinstated depends upon the point of view one chooses to adopt.

Let me explain further.

On November 2, 2007, Pakistan had an effective and respected legal framework, i.e. the Constitution, under which the President of Pakistan had certain powers. Those powers admittedly did not include the right to set aside the Constitution, to amend the Constitution or to fire those judges whom the President, or his allies, found uncooperative.

On November 3, 2007, General Musharraf tried to create a new legal order. In this new legal order, he claimed the right to make all such changes in the Constitution as he deemed fit, to pass such laws as he deemed fit, and to fire all those judges he deemed unfit.

Five months later, there are two options before Parliament (and by extension, the people of Pakistan). The first option is that Parliament can accept the new legal order proposed by General Musharraf, in which case the restoration of the judges can only be accomplished through a constitutional amendment, which in turn requires a two-thirds majority in each of the houses of Parliament.

The second option available to Parliament is to reject the new legal order proposed by General Musharraf. In that case, all the actions taken by General Musharraf, including the removal of certain judges, are entirely illegal and void ab initio , and can hence be simply ignored. General Musharraf is then also a man who has committed treason and who is liable to be impeached by Parliament for subverting the Constitution.

There are several points which need to be understood about the choice between these two options.

The first point is that the debate as to which option should be taken by Parliament is not a legal debate but a political (or rather, moral) one. It is not a legal debate because, by definition, a legal debate takes place within an agreed framework. In this case, the debate is not within the boundaries of an agreed framework: it is a debate as to which framework we (or Parliament) should adopt.

The second point is that in both cases, a parliamentary resolution changes nothing (at least, not in “legal” terms). If the legal order is that of November 3, 2007, then a resolution has no force. And if the legal order is that of November 2, 2007, then a resolution is unnecessary because the only legally appointed judges are those who were judges on November 2, 2007 and the only legal chief justice is the man who was chief justice on November 2, 2007.

But if a parliamentary resolution changes nothing, then how will the choice be made? And who will make the choice?

The answer to this question is simple: the choice will ultimately be made by those who control, and those who constitute, the coercive apparatus of the state. And if the police force of Islamabad is any indication, that choice has already been made.

On March 30, 2008, various Supreme Court officials entered the house of Mr Justice Khalilur Rehman Ramday to evict him forcibly from his official residence, under the orders, as per news reports, of the incumbent Chief Justice of Pakistan. These officials then requested the police authorities stationed within the judicial colony to assist them in carrying out the orders of the Chief Justice.

Under Article 190 of the Constitution, all executive authorities are required to act in aid of the Supreme Court. But the Islamabad police refused to help the Supreme Court officials. Moreover, not only did they refuse to help the Supreme Court officials, they later assisted lawyers in replacing the furniture taken out from Justice Ramday’s house.

The refusal of the Islamabad police to obey the orders of the purported Chief Justice of Pakistan is extremely significant. A sovereign whose commands are not obeyed and not implemented is no sovereign. Bahadur Shah Zafar in Rangoon was the same man as he had been in Delhi: the only difference is that his commands were no longer backed by the threat of executive action and coercive force.

At this time of writing, Chief Justice Dogar had not taken any action to “punish” the policemen who refused to obey his order. Instead, quite embarrassingly for him, the officers of the Supreme Court who were trying to carry out his orders are being questioned pursuant to an inquiry launched by the Ministry of the Interior. It therefore seems as if the executive branch no longer recognises Chief Justice Dogar’s authority.

On February 18, 2008,the people of Pakistan gave a verdict against President Musharraf and the parties allied with him. This time, it looks as if their judgement is actually being implemented.

Feisal Naqvi studied Islamic history at Princeton University and law at
Yale Law School

This article appeared in the April 4, 2008 issue of The Friday Times

Penny Wise, Pound Foolish

In Uncategorized on April 1, 2008 at 5:50 am

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

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

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

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

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

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

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

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

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

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

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

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

Let me put the above point in plain English.

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

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

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

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

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

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

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