Feisal Naqvi

Archive for November, 2010|Monthly archive page

The extravagance of our morality

In Uncategorized on November 24, 2010 at 4:04 am

Consider this paradox: Pakistanis generally believe that the time of their fathers and grandfathers was more moral than the world we now live in. We have laws today which ban alcohol and  provide that adulterers  be stoned to death. Those laws did not exist  fifty years ago. And yet, many Pakistanis are convinced that our moral standards would be devastated if those laws were  repealed.

The relationship between law and morality is complicated. In particular, the question as to whether laws need to have any particular moral content has entertained jurists for millennia. However, what I want to discuss today is a different issue: can you legislate morality? If not, why bother; if yes, when should you make the effort?

The short answer is that  you can legislate morality. You can, for example, make something illegal – selling hallucinogens, for example – and assuming the penalties are sufficiently intimidating (or the benefits sufficiently enticing), people will normally desist from the illegal act.

The more interesting issue though is this: when should you bother?

The reason why the issue even arises is because legislation is a tool, not a magic wand. In other words, legislation can encourage people to act in certain ways, but there are limits to what it can accomplish. As you near those limits, you need to increase the sanctions or benefits provided in the law for it to accomplish any purpose.

One response at this point is to say, so what? No law works perfectly. The penalty for murder is death and the law itself is backed by the strongest possible moral consensus of our citizens. And yet, people  continue to murder. Society should therefore resign itself to the fact that laws work imperfectly but it should still nonetheless keep on legislating against those acts which it believes to be immoral because some sanction is better than no sanction.

I disagree, for three reasons.

The first reason is that I believe society has – generally speaking – no business interfering with what I do if what I do does not physically harm somebody else. Obviously, all sorts of caveats apply to that statement. However, I don’t intend to discuss those caveats (a) because this is not a philosophy of law seminar and (b) because I accept the fact that the majority of Pakistanis do not share my belief. Assuming then that societies have the right to define their own legal boundaries (yes, I know, big assumption, what about human rights etc. etc.), I have to lump the fact that my view is in a minority.

The second reason is that even to the extent society has a general right to tell me what to do, that right needs to be subordinated to economic reality. Beggars cannot be choosers and Pakistan is certainly in a beggared state right now.  Take the issue of alcohol, for example. According to one former government employee I once met, the income from alcohol taxes in 1977 was Rs. 40 crores, from the NWFP alone.  Multiply that figure by ten to get an estimate for all of Pakistan. Divide by ten to get a figure in US dollars. Now multiply by 2.5 to take into account population growth since 1977: net result is US$ 1 billion.

A billion dollars may seem like a nice round figure plucked out of thin air but it is not entirely without basis. For example, Turkey’s annual revenue from alcohol taxes is approximately US$ 2 billion. On the plus side, Turkey’s population is about 74 million (as compared to approximately 180 million for Pakistan). On the negative side, Turks have more money, are visited by more tourists and have a larger percentage of non-Muslims. Even if all those factors balance out, a billion dollars is still a conservative estimate for Pakistan.

Not to belabour the obvious but a billion dollars is a sizable chunk of change.  You can build a lot of schools and hospitals with that kind of money (not to mention, buy the odd F-16). If Pakistan had an extra billion dollars a year, we would be in less need of charity and more able to provide charity.

The rebuttal to this argument follows a similar line as the rebuttal to the first argument. Societies get to pick their morality and societies also get to decide the extent to which they wish to compromise their chosen moral norms. If Pakistan wishes to sacrifice its economic health at the altar of anti-alcoholism, that is a choice that Pakistan gets to make.

My third reason, however, is different in that it is based not on morality but on the nature of law itself. L.L. Fuller defined law as the enterprise of subjecting human conduct to the governance of rules. Assuming you accept his definition, his argument was that there were certain characteristics inherent in the very nature of law which had nothing to do with morality in the common sense but which nonetheless needed to be respected. For example, if you want people to obey laws, they need to know what those laws are. Similarly, you cannot expect people to obey laws which are only made retrospectively or which are entirely incomprehensible.

One of these fundamental characteristics of laws is that there cannot be too great a gap between the law as it stands and the law as it is applied. And it is in this respect that society has to respect certain legislative limits. It is one thing to enact laws on a moral basis. It is another thing to enact laws on a moral basis which are then flouted conspicuously, openly and generally, as is the case with the laws prohibiting alcohol in Pakistan.

In 1982, James Q. Wilson and George L. Kelling wrote a seminal social studies article called “Broken Windows.” The argument they used was simple. Imagine a car parked on a street. If the car is in good condition, it may be days or even weeks before it gets vandalized. But if the car has a broken window, it is likely to get vandalized within a few hours.

The point behind the “broken windows” theory is that people look at other people to figure out what to do. And that point applies not only in the context of petty crime but in the context of broader social attitudes. If we see laws being flouted, our conclusion is that laws can be flouted. And once we conclude that laws can be flouted, the jump to actually breaking laws ourselves is much smaller than it would be otherwise.

To return to the original topic, there is only a certain amount of hypocrisy that a society can reasonably tolerate. Beyond that level, the entire legal structure gets corroded by public cynicism. And we begin to ask ourselves, “Why should I be the only fool who follows the law?”

Every society has a right to enact its morality into law. But if a society does not have either the will or the ability to enforce its morality, it is better off not making that attempt. Empty promises and unfulfilled threats are a luxury. And Pakistan has no room for luxuries any more.

 

This column appeared first in the daily Pakistan Today on 24 November 2010

 

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A JURY OF ONE

In Uncategorized on November 22, 2010 at 11:28 am

Every night on my TV screen, Alan Shore stands up in defense of a quixotic quest. Sometimes he defends the clearly guilty; sometimes he protects the innocent. But in each episode full of courtroom magic, he bends the jury to his will.

As a lawyer working in Pakistan, I have no shortage of interesting cases. But it is difficult for me to re-enact my Lahori version of Boston Legal because we have no jury trials in Pakistan.

Interestingly, the case which led to the end of jury trials in the sub-continent was certainly worthy of a Boston Legal episode, if not several.

In 1959, Kawas Nanavati, a commander in the Indian Navy, was stationed at Bombay. Married to an English beauty by the name of Sylvie, and universally described as handsome, the 34-year-old mariner seemed to have it all. Unfortunately for him, his wife was sleeping with his best friend, Prem Ahuja.

On April 27, 1959, Nanavati confronted his wife and learnt of her adultery. Pausing only to sign out a revolver from the Navy’s storeroom, Nanavati then dashed off to Ahuja’s house where his friend was lolling around in a towel. Nanavati asked him if he would marry Sylvie and take care of the children. Ahuja’s somewhat undiplomatic response was blunt: “Will I marry every woman I sleep with?”

What happened next is unclear. Nanavati claimed that after Ahuja spotted the revolver, he and Ahuja struggled and that he shot Ahuja during that struggle. In self-defence. Three times.

The Bombay police did not agree with Nanavati’s interpretation of the facts and promptly charged him with murder. The trial became a cause celebre in India. The Parsi community to which Nanavati belonged was outraged, organising rallies and petitions in his favour. Newspapers gave saturation coverage to the case, and later the trial. When Nanavati left the court room after testifying, he was showered with hundred rupee notes smeared with lipstick. Like many teen idols after him, he received marriage proposals by the handful, as India concluded that he was too good for his wife even as a penitent Sylvie, dressed in a white nylon sari, testified in favour of her husband. Bombay’s merchant community also jumped in on the act, selling miniature Nanavati revolvers and Ahuja towels.

The prosecution, of course, never had a chance. Their biggest talking point was that if Nanavati had indeed struggled with Ahuja, Ahuja’s towel would have come off instead of staying on. The fact that Nanavati had first dropped his family off at cinema before signing out a revolver under false pretences also seemed to indicate that he had been in control of his emotions and that the “heat of the moment” story was not true.

None of this mattered to the jury which returned a not-guilty verdict. Considering the judgment to be perverse, the trial court judge referred the matter to the Bombay High Court which ultimately found Nanavati guilty and sentenced him to life imprisonment. Shortly thereafter, the Indian government abolished all jury trials on the grounds that jury verdicts were overly susceptible to media pressures.[i]

The abolition of jury trials would appear to be a disproportionate response to one trial. But jury trial was never universally available in the sub-continent and its abolition only affected a very small minority of cases.

As is known, the British presence in the Indian sub-continent began in the 16th and 17th centuries through the establishment of “factories” located at Bombay, Calcutta and Madras (later known as the Presidency Towns). The less known fact is that the courts of East India Company applied the laws of England to all areas within their jurisdiction. This included the right to trial by jury.[ii]

As the empire of East India Company expanded, the British found it impractical to govern large tracts of India as if they were parts of Little England. A legal distinction thus developed between the laws applicable to the Presidency Towns and the rest of the areas under Company control (known as the mofussil), which distinction continued even after the British Crown took over the reins of power from the East India Company in 1857.[iii] Under the Criminal Procedure Code of 1861, jury trial could be made available in such districts and for such offences as the local government saw fit. In practice, this right remained limited to the Presidency Towns, albeit with one prominent exception: “European-born British subjects” were entitled as of right to trial by jury (and that too, with a majority of European jurors). [iv]

From time to time, the British did experiment with extending jury trials to the mofussil but the experience was normally considered unsatisfactory. One 19th century English official described the experience of jury trials in his area as follows:

There is a story that on the occasion of the first trial by jury in the Patna district, the Judge, who was somewhat proud of his fluency in the vernacular, made a long and elaborate charge to the jury of seven members, pointing out that the decision rested with them, and that it was only his business to explain the law,ending up with the usual form, “And now, gentlemen of the jury, what is your verdict?” The seven jurymen all stood up, put their hands palm to palm, the attitude of respect assumed by natives in the presence of a superior, and replied with one voice, “Jaise huzoor ke rai,” which, being translated, means, “Whatever your highness thinks right.” Somewhat discouraging.[v]

A century or so later, the official view of jury trials was still considerably mixed. The areas in which jury trials were available remained very limited and jury verdicts remained subject to a host of restrictions (or safeguards) unheard of in relation to their Western counterparts. In the words of A.G.P. Pullan writing in 1946:

The history of this experiment already lasting for over a century is not encouraging. The seed has been sown and resown, and watered and tended with care and perseverance, but the root has not struck deep in the heart of the peoples of India. . . . [I]t is open to question whether any purely Indian administration, such as is contemplated at the present time, will find any place for the jury system.[vi]

Pullan’s fears were prescient for as already noted, both India and Pakistan abolished the right to trial by jury barely a decade after gaining independence. My question today is to ask whether the time has come to reconsider that decision. The British denied most of their Indian subjects the right to trial by jury because they deemed us unfit for that privilege. Sixty years after gaining independence, why do we remain bound by that judgment?

The right to trial by jury enjoys a long and celebrated history in the West, particularly in England. The Athenians recognised a form of trial by jury, as did the Romans. In England, the code of Aethelred the Unready enacted at Wapentake in 997 AD required the 12 leading nobles of each district to investigate crimes. And in 1215, the Magna Carta recorded that henceforth no free man was to be “captured, and or imprisoned, or disseised of his freehold, and or of his liberties, or of his free customs, or be outlawed, or exiled, or in any way destroyed, nor [proceeded against] by force or . . . by arms, but by the lawful judgment of his peers.”

In 1670, the right of the jury to be free of judicial interference was firmly established during the trial of William Penn. Accused of violating the Conventicle Act (which forbade religious assemblies of more than five people), Penn and his co-accused were declared innocent by a jury even though the judge had directed them to convict Penn. When invited to reconsider their verdict, the jury not only refused but stuck to their guns when fined and sent to prison by the judge (for contempt). The jurors then challenged their detention, and, in what is now known as Bushel’s case, Sir John Vaughn struck down their imprisonment, holding that no judge could direct a jury to reach a particular verdict.[vii]

A century later, trial by jury was firmly cemented in the judicial pantheon as an irreplaceable bulwark against tyranny. Blackstone described jury trial as “the glory of the English law” and the founding fathers of the American Revolution were equally enamoured of the institution. Jefferson wrote that he considered “trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” As originally drafted, the U.S. Constitution contained no guarantee of jury trial. But when the Constitution was amended to add the Bill of Rights in 1789, the Sixth Amendment proclaimed unambiguously that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”

Two hundred or so years later, the right to a jury trial reigns sacrosanct in the United States (though it has been greatly curtailed in the United Kingdom). In addition, the expansion in the interim of the British Empire (along with the more recent advent of the American imperium) has carried the concept of jury trials across the world. According to one 2008 survey, 55 countries have some form of jury trial, including states as geographically and historically diverse as Mexico, Kazakhastan and South Korea.[viii] But till date, India and Pakistan remain constant in their opposition.

There are a variety of reasons given by opponents of jury trial to justify their opposition. Juries are supposedly ignorant and emotional. A Pakistani judge once referred to trial by jury as “amateur justice,” [ix] compared (one presumes) to the more professional justice available from judges. The standard response – at least in the context of India – has been that India is too diverse a country[x] and that Indians themselves (probably with good reason) did not regard juries as either impartial or incorruptible.[xi] The natives, in other words, are not to be trusted.

The mistrust of the common man is not entirely without basis. It is a judicially recognised fact in both India and Pakistan that our witnesses tend to lie. In England and the United States, the testimony of a witness who has been caught lying in one respect tends to be disregarded in all respects on the basis of the maxim, falsus in uno, falsus in omnibus (false in one thing, false in everything). In other words, the testimony of a witness who claims to have seen a murder while in town on business will be disregarded if it can be shown that, contrary to his evidence, the witness was in town for an assignation with his mistress. That maxim, however, has been rejected by sub-continental judges who instead tend to “sift the wheat from the chaff.” The philandering, lying witness may thus serve as the basis for conviction if a judge decides that the rest of his testimony is believable.

One way to respond to the jury sceptics is on the basis of facts. Can one really argue, for example, that the average 21st century Pakistani is any more ignorant or emotional or fallible than the average 13th century English peasant? The world in which the Magna Carta was signed was, in William Manchester’s magnificent phrase, a world lit only by fire.[xii] Books were rarer than unicorns and the average person lived and died within a few miles of his birthplace without ever having learnt anything of the world outside. Today, even the poorest of the poor in Pakistan have access to mobile phones, radio and television. And those who do not have such access certainly know about and aspire to such access.

Similarly, those who point out to the diversity of people to be found in the subcontinent presume wrongly that such diversity is unique to it. The frontier regions of mid-19th century America, for example, were populated by people from all over Europe (and occasionally, much further beyond) and yet that diversity never stopped jury trials from continuing.

Professional judges have their critics too. Jefferson thought that placing judges as the arbiters of all legal questions “would place us under the despotism of an oligarchy.” On a more factual plane, every Pakistani lawyer can tell horror stories about corrupt judges. Besides, sometimes corruption is not the issue. In 2004, one of Pakistan’s finest judges struck down a law providing that children under the age of 18 could not be put to death. His judgment was based in part upon his assessment that Pakistani youngsters matured earlier than their Western counterparts because of our hot climate and spicy diet!

It is also highly debatable whether a “professional” determination of any factual dispute can be made. In 1670, when Chief Justice Vaughn held in Bushel’s case that no judge could direct a jury to convict an accused, he noted that he knew nothing to “be more common, than for two men, students, barristers, or judges, to deduce contrary and opposite conclusions out of the same case in law?” The ultimate argument for jury trial then is epistemic, the argument that our interpretation and knowledge of facts is both fallible and limited and that we have no better way of reaching a conclusion as to disputed questions than through the consensus of our peers.

Vaughn’s profound observation also serves as a rebuttal to the fact that witnesses lie in Pakistan. When a judge ‘sifts the wheat from the chaff’, he is selectively constructing a narrative as to what he believes actually happened. That selection may be right or it may be wrong, but there is nothing to show that the judge is in any way more qualified to conduct that exercise than 12 lay people. On the contrary, judicial fact-finding is even more prone to challenge. When a judge reaches a conclusion, each and every element of that conclusion must be buttressed with unassailable evidence so as to protect it from challenge. As anticipated by Vaughn, every such exercise is open to challenge and hence, appeal follows appeal. A jury, however, is not obligated to lay out its conclusions in rational terms and its conclusions are accordingly unchallengeable in all but the rarest of circumstances.

Another way to look at jury trials is to acknowledge that they present a miniature version of the dilemma regarding political authority which has so bedevilled Pakistan. Over the past 60 years, we have experimented gingerly with democracy only for power to be snatched back when our elected representatives muck things up. Our politicians are crooks, we moan. Our people are ignorant, corrupt and easily misled. If only we could find the right leaders, life would be so different. From time to time, that demand for a perfect leader reaches a crescendo. And when it does, someone in uniform usually obliges.

It is too early to tell if Pakistan’s cycle of alternating dictatorships with dysfunctional democracies has finally moved on. But if that cycle is to be permanently broken, it requires not only the occasional replacement of one group of kleptocrats with another but a more profound acceptance that the ultimate source of power is really, truly, seriously, the people of this benighted country. And I can think of no better way to get that message across—and accepted – than by reintroducing jury trials to Pakistan.

The institution of the jury is profoundly democratic because it affirms, above all, the power of the governed to decide what the law is. Every jury has the right, no matter what the law and what the facts, to refuse to convict. Every jury trial is thus homage by the state to the source of its legitimacy. More importantly, jury trial is profoundly democratising. At present, Pakistanis address their rulers only at election time. By contrast, every jury trial is a conversation between the rulers and the ruled. As de Tocqueville observantly remarked back in 1835, “the jury, which is the most energetic means of making the people rule, is also the most efficacious means of teaching it to rule well.”[xiii]

Jury trial is especially important for Pakistan because of our deeply conflicted national identity. Pakistan was founded by a man who was not just a barrister but one of the finest lawyers of his time. It inherited very little except the governing apparatus of the colonial state and all the laws of the British Empire. At the same time, Pakistan was founded at least notionally on the idea that Muslims were constitutionally different from other citizens of the Empire and hence required their own state and their own very different laws.

This internal conflict has never been sorted out satisfactorily. Pakistan’s liberal elite wants nothing to do with religion. Pakistan’s middle-class knows it wants Islam and the Shariah but has very little clue of what to do with Islamic law. As a former part of the British Empire, Pakistan’s legal heritage was almost exclusively derived from the common law (the only exceptions being the inheritance and family laws). After the military coup of 1977, the government of General Zia ul Haq embarked on an ostensibly ambitious program of Islamisation which in practice boiled to (i) renaming some laws (the Evidence Act became the Qanun e Shahadat Order); (ii) renaming some crimes (assault became various kinds of “itlaf”); and, (iii) renaming some apparently illegal practices (interest on loans became “mark-up”). The only substantive exception to the “legislation by renaming” approach was the introduction of various laws relating to women. The testimony of women in certain matters was deemed to be half that of a man and the laws relating to rape and adultery were “Islamised,” albeit in such an incompetent fashion that rape victims, who could not identify their attackers, became liable to punishment for adultery.

The irony of Pakistan’s conflicting psyches is that neither one is authentic. The laws made by the British were self-evidently imported. But even the so-called Islamic reforms introduced by General Zia had no local antecedents. Instead, General Zia relied on Saudi clerics to do his drafting even though Saudi law is, broadly speaking, about as closely related to the bulk of Pakistani law as the laws of the Eskimos.[xiv]

Ronald Dworkin says in Law’s Empire that the law works itself pure. What he meant by that observation is that it is the job of the judges to reconcile all elements of a legal system so as to make them consistent in principle. Imagine legislation as sharp-edged rocks falling into a fast moving stream. As those rocks are carried by the water, they are worn down so that ultimately what was once in conflict becomes smoothed out. In a system run only by judges, the only active force is the judiciary. But in a jury system, the judge and the jury both have to bring together in harmony all the pieces of the legislative puzzle.

Despite my optimism, I do not doubt that a Pakistani jury system will produce any number of horrific judgments. As one of the lawyers who worked on the Mukhtaran Mai case, I am fully aware that she was condemned to be raped by something closely approximating a jury of her peers. Given the horrific problems Pakistani women already face in relation to honour killings, would trial by jury not result in an institutionalisation of prejudice?

One response to this argument is to note that jury trial in the subcontinent did not result in a complete abdication of discretion by judges to the jury. Instead, as shown ironically by the Nanavati case itself, the law provided for checks and balances so that a runaway jury could be checked. But that argument is only a partial response. The more complete response is that if prejudice is a fact of life, we are better off dealing with it openly. At the end of the day, law is a means to social ends. Yes, law can serve as a means of social transformation but it cannot operate in isolation from social norms. It is better to have gradual – but real – change than to have a utopia on paper. We have learnt now, it seems, to trust people with the vote. It is time now to also trust them with the law.

This article appeared originally on http://www.3quarksdaily.com on 22 November 2010.

[i] Not surprisingly, the Nanavati case has served as the inspiration for more than one Bollywood remake. “Yeh Raaste Hain Pyar Ke” (1963) and “Achanak” (1973) are both thought to be based on the events of the Nanavati trial.

[ii] According to Pullan (op. cit), trial by jury was available in Calcutta from 1623 onwards. In Bombay, trial by jury was available after 1672 (see http://www.kar.nic.in/fnjpc/h-mahrs.html).

[iii] In some instances, the distinctions remain till today. For example, Pakistan has two different laws dealing with personal insolvency. The Insolvency (Presidency Towns) Act, 1909 applies to Karachi by virtue of the fact that Karachi was formerly part of the Bombay presidency. The rest of Pakistan is governed in terms of personal insolvency by the considerably less sophisticated Provincial Insolvency Act, 1920.

[iv] For an extended discussion of the codification of law in India, with a specific focus on the Criminal Procedure Code, see Elizabeth Kolsky, “Colonial Order, British Law: The Empire and India: Codification and the Rule of Colonial Difference: Criminal Procedure in British India”, 23 Law & Hist. Rev. 631 (2005).

[v] G. Graham, Life in the Mofussil (or the Civilian in Lower Bengal), Vol 2. (available at http://www.ebooksread.com/authors-eng/g-graham/life-in-the-mofussil-or-the-civilian-in-lower-bengal-volume-2-har/page-5-life-in-the-mofussil-or-the-civilian-in-lower-bengal-volume-2-har.shtml)

[vi] A.G.P. Pullan, “Trial by Jury in India,” Journal of Comparative Legislation and International Law, Vol. 28, p. 104-09 (1946)

[vii] (1670) 124 E.R. 1006 (also reproduced at http://www.constitution.org/trials/bushell/bushell.htm)

[viii] Ryan Y. Park, “The Globalizing Jury Trial: Lessons and Insights from Korea”, 58 Am. J. Comp. L. 525 (2010)

[ix] Despite my best efforts, I have been unable (so far) to find a reference for this quote other than http://en.wikipedia.org/wiki/Jury_trial

[x] See L. M. Singhvi “The jury system in the country, which was prevalent some decades ago, had to be abolished because it was found unsuitable for Indian conditions. [Jury systems work only in] small homogenous communities where a given number of persons of similar status and identical background can be found easily to sit on judgment on their peers. In India, with its vast diversity, it had not worked earlier and it would be unsuccessful again if reintroduced.” Quoted in M.S. Thirumalai, “Language use and Jury Trial,” Language in India (Vol. 3 7 July 2003)(available at http://www.languageinindia.com/july2003/jurytrial.html)

[xi] Pullan, op. cit.

[xii] See also de Tocqueville’s observation that “when the English adopted trial by jury they were a semi-barbarous people.” Alexis de Tocqueville, Democracy in America (Vol I, Chapter XVI)

[xiii] Alexis de Tocqueville, Democracy in America (Vol I, Chapter XVI).

[xiv] For what it is worth, there is a respected body of scholarly work which believes that the common law institution of the jury trial is based upon the concept of the Lafif in Maliki law and was imported by England from Islamic Sicily. See John A. Makdisi, “The Islamic Origins of the Common Law”, 77 N.C.L. Rev. 1635 (1999). I am in no position to comment on the scholarship but my view, as a legal realist, is that the origins of the jury are irrelevant: the only question is whether adopting the practice will be beneficial or not. As it is, Muslims are rather too fond of taking credit for authoring various inventions without bothering to consider that they have long since abandoned their inventive traditions.

The best revenge

In Uncategorized on November 11, 2010 at 5:59 am

If the PPP doesn’t fix itself, my vote and I will go elsewhere

One of Toms Hanks’ first television appearances was as a stoned-out-of-his-gourd Harvard student who spends all of his time blissfully staring at a lava lamp. The bit I remember is when somebody switches off the lava lamp and Hanks wails, “So, what are we supposed to do now?”

I mention this because in the past few weeks, the usually high temperature of Pakistan’s feverish politics seems to have subsided somewhat. If nothing else, newspaper audiences are now no longer being assailed with dramatic headlines announcing the imminent demise of the PPP government. Whether this is because of the 18th Amendment non-verdict or the election victory of Asma Jahangir in the Supreme Court Bar elections is unclear. But my question is this: so what are we supposed to do now?

Let me give some more context to my query. Since the PPP’s election in February 2008, Pakistan has lurched from one crisis to the next. In the beginning, the issue was the restoration of the Chief Justice. When the Chief Justice was finally restored in March 2009, the focus shifted to the Federal Government. First came a trickle of stories about corruption and mismanagement; then a sequence of verdicts in which the Supreme Court and the Federal Government began to establish increasingly antagonistic positions; still later came the last breathless stage in which the departure of Zardari & Co. seemed but one suo motu away.

In the middle of this drama, the ordinary incidents of governance became hopelessly irrelevant. Instead, the overriding issue became the debate about whether it was better to suffer an outrageously incompetent government or invite the army to come and rescue us. That debate is finally over. And at least in my case, the fact that there is now no real likelihood of a midterm change clarifies matters considerably.  Because if governance is to improve – as it must – it can now only be done through the ordinary incidents of democracy. In other words, I can either work with the government we have or suffer my lot in silence and wait for the next election.

Leaving aside the impact of this realisation, the bigger question is whether the removal of the threat of impending departure will have any effect on the PPP government and its mode of operations. If news reports are to believed (which is a hazardous thing to do), most PPP appointees have governed till date on the basis that there will be no tomorrow, and so one might as well grab all that can be grabbed today.  My favourite (but entirely unconfirmed) story in this regard is of the PPP MPA who stood up at the recent Governor’s House meeting in Lahore and complained about how the only way he – repeat, a PPP MPA – could get an electricity connection for his tubewell was by paying a Rs. 1 million bribe.

To be fair, the PPP may well have had some justification for its grab-and-run approach till date. Both of BB’s governments were not permitted to last out their full terms and, as already noted, the current federal government has spent much of its term on the verge of a constitutional breakdown.  On the other hand, it is not entirely implausible that the PPP has deliberately sought out a path of confrontation to precipitate a forced departure and preserve its status as the perpetual victim of the Establishment.  Either way, whether through good luck or bad, the PPP seems to have no option now but to complete its term.

If I was an optimist, my view would be that the PPP brain trust will now start dealing rationally with the potential consequences of a full-term election. The PPP would then start concentrating less on lining its pockets and focus more on dealing with Pakistan’s governance problems. Yes, those problems are difficult. But in the absence of any achievements to show over a five-year term, the PPP really should realise that (a) it will be difficult for it to seek votes next time either on a sympathy basis or on an anti-establishment basis, and (b) the jiyala vote is steadily diminishing.

Unfortunately, my optimism is in hibernation these days. I now have very limited faith in the ability of the PPP to fix itself. A large part of me hopes I am wrong because socially liberal secularists like me really have no other place to go.  But even socially liberal secularists have their limits, and if things don’t change by the next election, my vote and I will go elsewhere. Democracy may or may not be the best revenge. But it is the only one I can have.

This column first appeared in Pakistan Today on 11 November 2010.