Feisal Naqvi

Archive for December, 2010|Monthly archive page

Reconsidering the judicial revolution

In Uncategorized on December 28, 2010 at 4:59 am

The short version is that the judicial revolution was a good step forward for this country. In practical terms though, our legal system is defunct. And if the judiciary does not recognise limitations on its own powers, it will hurt the very democracy it now claims to protect.

 

What was the point of the judicial revolution? Was it to restore one man to office? Or was it to establish the independence of the judiciary? Either way, how would you assess the revolution from today’s perspective?

This was the question posed at a recent roundtable hosted by the Human Rights Commission of Pakistan. And predictably, it set off a small storm amidst the lawyers gathered.

I don’t intend to summarise the many viewpoints offered but the plurality of opinions certainly forced me to reconsider my thoughts. So, here goes.

To begin with, it is a considerable over-simplification to say that there was “one” judicial revolution: at a minimum, there were two distinct phases of the revolution. The first phase started on March 9, 2007, when Musharraf attempted to fire the Chief Justice and ended on July 20, 2007, when the CJ was restored by order of the full Supreme Court. The second phase started on November 3, 2007 and ended on March 17, 2009, when the CJ and the 23 other judges who had not taken oath in the interim were restored. Each of those phases was distinct and motivated by a different goal.

The second point is that trying to figure out the point of a revolution is inherently problematic. A revolution is like a tsunami travelling through a normally placid sea of public consciousness. Different people participate for extremely different reasons. The assumption that people participated for a common set of reasons is, therefore, not justified.

Having hedged all my bets like a good lawyer, let me now give my two cents worth.

To begin with the obvious, the judicial revolution has indisputably changed the mindset of the judiciary. Prior to March 9, 2007, taking oath before a military dictator was seen by judges (and lawyers) as an occupational hazard. The assumption was that the judiciary had a job to do and that job needed to be done irrespective of whether or not the regime was democratic. The judiciary, therefore, did not see itself as the defender of the democratic faith but rather as a group of professionals entrusted to do a particular job, just like dentists or school teachers.

That assumption is no longer true. If and when we have another coup, I expect the vast majority of judges to resign. And if the superior judiciary quits en masse, it is quite possible the subordinate judiciary will follow suit.

The second change relates to the public perception of the judiciary. Before the judicial revolution, the average Pakistani did not much distinguish between the judiciary and the rest of the government. If anything, judges were seen as a specialised form of the bureaucracy, basically just the establishment in black robes.

Now, the average Pakistani distinguishes very clearly between the judiciary and the establishment. If anything, he now not only recognises the judiciary as a fully autonomous arm of the state but also looks to it to save him from the establishment as well as the legislature, the feudalocracy, his local SHO and everybody else in between. More importantly, the change of attitude has affected the judiciary as well. Fifty years ago, judges identified very clearly with the rulers; today, they themselves are instruments of the masses working against the state.

These are momentous changes but their consequences will take decades to unravel. As Chou En Lai once wryly remarked in relation to the French Revolution of 1789, “It is too soon to say.” With that caveat, the second change is particularly important.

In a democracy, the essential basis of the government’s legitimacy is that it governs according to the expressed wish of the people, i.e., a constitution. Since a constitution itself does not speak, the only guarantee of the integrity of this original contract is the judiciary. And when that guarantee is worthless, the value of the contract itself disappears.

Let me restate what I just said in simpler terms. A constitution is an agreement between the people who vote and the people who exercise power. The ultimate safeguard of that deal is supposed to be the people themselves because they get to vote out the deal-breakers. Except, of course, that in Pakistan they don’t get to vote that often and when they do, the system is rigged because of the massive disparities in power. For all practical purposes, the only guarantor of the constitution is the superior judiciary. For people to believe in democracy, people need to believe in the judiciary. And now they do.

I’m not trying to pretend here that the days of wine and roses are upon us. The judiciary may now be able to play a different institutional role in Pakistan but in terms of its professional obligations, it remains woefully deficient. Put bluntly, the legal system of Pakistan is broken and the responsibility for fixing that mess lies with the judiciary. Yes, I know, the various law ministries are in theory equally responsible, but let’s not kid ourselves. The stagnation in our courts will be resolved through policy changes initiated by the superior judiciary, or not at all. And if the new National Judicial Policy is anything to go by, nothing will change.

A problem of a completely different dimension lies in the judiciary getting carried away with its new role. Yes, judges are the guardians of the constitution. But there is a clear line dividing what judges do from what politicians do, and our judges seem to be spending too much time on the wrong side of that line. Having said that, one must also recognise that the Supreme Court did hold off on striking down the 18th Amendment (thereby recognising at least some limits on its powers) and that the initial suo motu mania seems to be subsiding.

Let me try and put all these fragmented thoughts together. The short version is that the judicial revolution was a good step forward for this country. In practical terms though, our legal system is defunct. And if the judiciary does not recognise limitations on its own powers, it will hurt the very democracy it now claims to protect.

 

This column appeared first in Pakistan Today on 28 December 2010.

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The Reko Diq fiasco

In Uncategorized on December 21, 2010 at 4:25 am

The interesting thing about the internet is that it is as great a force-multiplier for ignorance as for knowledge. Take, for example, the Reko Diq project. The average Pakistani newsreader is convinced that (a) the Federal Government is an evil stooge of western interests; (b) the people of Balochistan are being ripped off yet again; and, (c) it is now up to the Supreme Court to save us. All three beliefs are completely wrong.

Here are some facts about the Reko Diq project.

In 1993, the Government of Balochistan (GoB) signed a joint venture agreement with an international mining company (BHP Billiton of Australia) to set up a new company for exploration purposes. BHP Billiton got 75% of the new company (called Tethyan Copper Company (TCC)) while the GoB got 25%. Note, the GoB paid nothing – zip, zilch, zero – for its 25% share of TCC. Note also that normally the GoB does not get any equity stake when it dishes out exploration license (which is the normal case worldwide when it comes to mining agreements).

In 2000, BHP Billiton sold out its 75% share of TCC in equal proportions to Barrick Gold (a Canadian company) and Antofagasta PLC (a Chilean company). Between 2000 and 2010, the new investors invested US$ 220 million in exploring their licensed area. Note again that the GoB contributed precisely zero dollars.

In August 2010, TCC submitted a feasibility report in which it estimated the value of the find at US$ 260 billion, with production commencing in 2015 after a further investment of US$ 3.3 billion. The feasibility report also argues that if provincial and federal taxes are taken into account, international investors will actually receive less than 50% of all profits with the GoB and the GoP taking the rest.

Not surprisingly, the hard estimates of the value of the mine have set off a mad scramble. The current position of the GoB is apparently that its agreement re TCC stands cancelled and that it will develop the find itself. On the other hand, TCC claims that it has not yet received a cancelation notice and that it remains committed to its joint venture agreement.

To return to the three issues I noted in the beginning, the first point to note is that the Federal Government is not involved at all in this case. The original 1993 agreement was signed by the GoB, not the Federal Government. Similarly, it is the GoB, not the Federal Government, which is a 25% equity holder in the project. Finally, the fate of the project lies in the hands of GoB and nobody else’s. More specifically, the issue now is whether or not the GoB grants a mining license to TCC (as applied for) or whether the GoB decides to reject the application. The Federal Government has no legal role to play in that decision whatsoever.

Second, the deal is not a rip-off, at least not by any obvious standard. The investors have put in US$ 220 million but will get less than half the profits. Had the exploration failed, they would have received nothing. For the GoB to claim that it should receive a larger share on equitable grounds is simply rubbish. In fact, the deal represents exceptionally good value for the GoB.

The sceptics argue that irrespective of the merits of the original deal, the GoB can evidently get a better deal now. Why should it give away 75% or 50% of a multi-billion dollar resource when it can keep everything?

Well, the answer is the GoB has no option. It does not have the capacity to develop the mine itself. Even if it did, it also does not have the US$ 3 billion plus it would take to successfully develop the mine. The only way the GoB can develop the mine is through a joint venture with a mining company; i.e., replace the current investors with a different bunch. However, it does not seem as if investors are lined up to work with GoB. The only reported interest so far seems to have come from a Chinese company which has offered the GoB an additional 5% royalty on top of a 25% equity stake. That additional 5% royalty hardly seems worth the hassle.

Assume, however, that there is a plethora of suitors out there and that it is possible for the GoB to get a bigger share of the Reko Diq pie. Even if that is true, bringing in fresh investors would still be a disaster for the GoB.

It would be a disaster first because it would destroy the GoB’s credibility. International investors are not idiots and they do not invest upwards of US$ 200 million without a cast-iron guarantee that they will get to reap the benefits of their investment. If the GoB takes over Reko Diq, it can pretty much forget about any international investment in Balochistan’ s mineral wealth, at least for the foreseeable future.

Second, the GoB needs to understand that the legality of its takeover will be decided not by friendly Pakistani courts but by international tribunals. My understanding is that the 1993 agreement contains an international arbitration agreement but, even if it does not, the international investors have access to the International Centre for the Settlement of Investment Disputes (ICSID) under the terms of a 1998 bilateral investment treaty with Australia (TCC’s parent company is Australian). Either way, if the GoB stiffs the international investors it will face a judgment in which it has to pay back not just the amounts invested (i.e., US$ 220m) but also the investor’s share of future profits (US$ 130b).

What then is the role of the Supreme Court in all this? To my knowledge, there are three cases pending before the court. The first is an appeal from a 2007 decision of the Balochistan High Court which upheld the validity of the 1993 agreement. The other two are constitutional petitions arising out of the Supreme Court’s original jurisdiction in which ostensibly well-meaning lawyer/activists have turned a news story (Shaheen Sehbai’s article in The News dated 25.8.2010) into a legal document through the simple addition of paragraph numbers.

So far as the merits of the appeal are concerned, I have nothing to say because the issue is sub judice. However, so far as the two constitutional petitions are concerned, what I will say is that they have been drafted on the assumption that it is the job of the Supreme Court to rewrite business deals in order to ‘protect the interests of Pakistan’. So far as my legal knowledge goes, this is completely wrong. It is not the job of the Supreme Court – or indeed of any court – to direct the revision of business terms. Instead, what courts do (or are supposed to do) is to examine the process by which government agreements are reached. Courts cannot – or rather, should not – examine the substantive fairness of government agreements. Simply put, that is none of their business.

This column appeared first in Pakistan Today on 21 Dec. 2010.

On being a Shia

In Uncategorized on December 20, 2010 at 9:19 am

ON BEING A SHIA

by Feisal Hussain Naqvi

ScreenHunter_01 Dec. 20 08.50Being a Shia means different things to different people. In my case, being a Shia means that if I am as professionally successful as I hope to be, someone will want to kill me. Or, to be less melodramatic, it means I can’t play golf on Ashura.

The fact that being a Shia means such wildly divergent and  generally irrelevant things to me also indicates  that I am not much of a Shia, which I confess  to be true. The question then is,  why do I feel compelled to identify myself as a Shia.

Before I try to answer,  some background is in order.  The roots of Shi’ism go deep into Islamic history, more specifically, into the issue of who was to succeed the Prophet as the leader of the Muslim community.  Ali, the Prophet’s son in law, was favoured by one group while Abu Bakr, one of the Prophet’s closest companions was favoured by another. Ultimately, the group supporting Abu Bakr prevailed, so much so that Ali did not become Caliph until two other members of the community (Omar and Usman) had preceded him. When Ali did become Caliph, he faced a challenge led by Aisha, one of the Prophet’s wives (and also the daughter of Abu Bakr).

The schism worsened after the assassination of Ali in 661 AD. Ali was succeeded as Caliph by Muawiya, the governor of Syria under Ali. When Muawiya’s son, Yazid, took over as Caliph in 680 AD, the stage was set for another clash.

Shortly after Yazid’s accession to the caliphate, Ali’s son, Hussain, was called to Kufa (a city in present-day Iraq) by leaders of the community there. Hussain set off from Medina with his family and a small group of followers but he never made it to Kufa. Instead, at a place called Karbala, his family and he were  surrounded by the armies of Yazid. For three days, Hussain and his family were not allowed access to water. On the 10th day of the Islamic month of Muharram (now called Ashura), Hussain, his family and his followers were slaughtered to a man. The only survivors of the battle were the women of Hussain’s family and his son Zain ul Abedin, who had been too ill to accompany his father into battle.

The Shias, then, are those people who mourn the tragedy of Karbala and who believe that Ali should have succeeded the Prophet. But that is only the simplest aspect of Shi’ism. What Shias also believe is that the Prophet, Ali and his descendants (the Imams) were intrinsically superior to other humans and that they were thus qualified to lead the Muslims in a way that no other Muslim could ever match.

There is, of course, much more to Shi’ism than what I have just outlined. The point I was trying to make though is that mourning the martyrdom of Hussain is essential to the concept of being a Shia. Each community of Shias is different in its mourning rituals, but every year, the first ten days of Muharram bring to a halt the lives of devout Shias.

My father’s family is not just devout in its Shia-ness but “kuttar”, a Punjabi word best translated as “hardcore.” My father’s parents lived in Jhang, then as now, a bucolic slum of no great import in the middle of the Punjab. They lived there because when they had fled the Partition of India in 1947, my grandfather had refused to get off the train at Lahore (he thought he was dying) and instead stayed on until the train came to its final stop (which was Jhang).

By the time I started going to Jhang, my grandfather had passed away and the house there was run by my grandmother.  She was a strong-willed lady of extremely firm views whose life essentially revolved around Muharram. Every day during the first ten days of Muharram, there would be a majlis held in the house itself in which a learned female scholar would lecture the assembled mourners on the virtues of the Shia Imams and try to prove that the Shias were right (and that everybody else was wrong).  After about an hour or so of heavy theological lifting, she would shift over to a description of the suffering of Hussain and his family during the events of Karbala. During those 15 minutes, the audience would dissolve not just into tears but into loud wails of anguish. The mourning did not stop once the sermon ended. Instead, the mourners would sing elegies to the martyrs and beat their chests with their hands.

As men, we obviously could not attend the majalis in my grandmother’s house. We would therefore leave every afternoon for  the Imam Bargah (the Shia house of worship) where a cleric, this time male, would harangue us for an hour on the theological superiorities of Shia’ism followed again by 15 minutes of martyrdom narratives, ending in a chest-beating session.  During those last 15 minutes, it wasde rigueur for the men present not just to sob loudly but to howl with sorrow. My father, fortunately, was not much given to public displays of emotion and his preferred option was to stare at the floor with a hand over his eyes (an example which I greatly preferred to follow).

All of the majalis though were only a prelude to the events of the 10th of Muharram.  On the morning of the 10th, we would troop off to the “Dubkaron ka mohallah”, a locality (mohallah) in the inner reaches of Jhang inhabited by a clan of Shias known for the ferocity of their beliefs (the Dubkars).[i] In contrast to the other Muharram sermons, the sermon on the morning of the 10th was always short;  a 15-minute recitation of events in which Hussain says farewell to his family, ventures out alone to face an entire army and perishes heroically, followed by a description of the scene when his riderless horse returns to camp to be confronted by Hussain’s daughter Sakina who wants to know what has happened to her Baba.

By this time, the entire audience would be wailing;  an audience, please note, composed not just of males but Punjabi males (a sub-species not normally known for its sensitivity).  After a brief pause in which the men present would collect their emotions, the events of the day would truly begin.

The normal routine for Pakistani Shias on the 10th of Muharram is to walk in a procession. The procession is made up of mourners who walk slowly, stopping from time to time to beat themselves, as other mourners chant dirges. The more sedate group of mourners thump their chest with their hands, beating themselves so hard that their chests would become bruised. The less sedate mourners use knives. The knives are razor sharp and attached to chains which in turn attach to a small wooden handle.  The mourner thus uses the handle to smack the knives against his back. Most men flail themselves with the knives going over the shoulder but some prefer to raise their hand and go around the side. Either way, there is a fair amount of blood involved.

Each procession or jaloos is accompanied by various symbols or tokens.  The most common symbol is the alam or banner (in other words, a pole with a black flag on it). The alam represents Abbas, the standard bearer of Hussain’s army who died at Karbala trying to get water for Hussain’s family.  Then there is the zuljinah, or the horse of Hussain (normally white, but any colour works in a pinch).  Thezuljinah sometimes bears a turban on its saddle to represent its rider but most often is draped in black harness with black cloths tied to its bridle and reins.

[The photo at the top of this article is of a jaloos on Park Avenue in NYC, taken by Abbas Raza, and included in a short article of his which also has more photos.]

In Jhang, the one addition to the normal jaloos procedure was the tazias. The tazias are large wooden models of the tomb of Hussain made out of wood, normally all painted in gold. The tazia of the Dubkar Mohallah was a particular beauty, rising about 30 feet high from a base about seven feet by seven feet. It was also extremely heavy and needed to be carried by a team of 10-12 men who would heave it onto their shoulders using the thick bamboo poles running along the bottom of the tazia.

The tazia was thus the focus of the mini procession which would emerge from the Dubkar mohallah. It would rise amidst a crescendo of wails and be carried down narrow alleyways in short bursts of a few hundred yards till, like a stream joining a river, it would merge with the main jaloos. All along the way, the mourners would beat themselves and the sides of the street would be packed with women and watchers.

By mid-afternoon, the jaloos would reach its destination, a large open field where the Dubkar Tazia would be joined by a number of other tazias. There, the assembled mourners would be addressed by another cleric. Tradition has it that the battle of Karbala reached its climax at the time of the zuhrprayer (early afternoon) and as the call to prayer would ring out across the open field of mourners, a fresh burst of crying would break out.  At the end of the majlis, the different processions would break up and head back to their neighbourhoods, carrying their tazias along.

After one returned from the jaloos, the hours till evening were normally quiet. The last event of Ashura is a special majlis called Majlis-e-Shaam-e-Gharibaan held late at night. The phrase “Shaam e Gharibaan” means literally “the night of the destitute” and it marks the formal end of the mourning cycle.  For some reason, we never attended the majlis in person but instead used to listen to the one on PTV.

In those days, PTV was the only television channel in Pakistan and so, appearing on it was quite a big deal. The Majlis-e-Shaam-Gharibaan was delivered every year before a studio audience by a cleric of formidable intellect – and even more formidable vocabulary – called Allama Naseer ul Ijtehadi.  For most of the allotted hour, he would lead his listeners into ever more elaborate loops of logic and rhetoric. Then as the hour grew to a close, he would remove his turban and shift from high jurisprudential theory to the story of Hussain, concentrating not on the martyrdom of Hussain but on the small community of women and children left behind, beleaguered and helpless, soon to be paraded through the bazaars of Damascus by the forces of Yazid. The camera would then slowly fade to black over the cries of the audience and then focus on a spare set, all draped in black. In the middle of that set would be a man, Syed Nasir Jehan, who would sing two final dirges. The first one was called “Ghabraye gi Zainab” (meaning “Zainab will worry”)[ii] while the second is best translated as “The Last Salute.” And after that last mournful song, Muharram was over for us.[iii]

 

 

My parents left Pakistan when I was 11 and I spent the next three years in boarding school. There, Shias were treated very much as a breed apart. Every sunset, we would line up and troop off to say our prayers at the school mosque. The Sunnis would pray as part of a large congregation while the Shias and Ahmedis would line up separately at the back. During Muharram, the Shia boarders would get bused out to majalis where we would sit in the back row of a desultory audience and pick our noses while surreptitiously telling dirty jokes to each other.

When I was 15, I left Pakistan to join my parents overseas, first in London and Belgium and then in Singapore.  From there, it was onwards to the US to attend college and law school. When I finally returned to Pakistan in 1996, more than a decade had passed.

The Pakistan I came back to was a different place. Shias had gone from being a minority to being a targeted minority. Prominent Shias now had to contend with the fact that the very fact of their success – professional, political or otherwise –meant that someone would be happy to kill them. Karachi was ground zero for the target killings – with Shia doctors and lawyers being particularly favoured – but the rest of the country was not far behind. Jhang, in particular, became a focal point of sectarianism.  My first visit there after my return to Pakistan was to attend the funeral of a cousin and his father who had been machine-gunned outside their house.

I, too, had changed. The first majlis I attended after coming back was also my last. Where I had once been content to listen to the clerics blather on, I could now no longer stand bad arguments; at least, not without wanting to get my two cents in. I remember the cleric recounting a conversation between God and the Angel Gabriel about the merits of the Shia perspective and it was all I could to stop myself from shouting “Objection, hearsay!”

It wasn’t only that I had learned to construct arguments in the meantime. At college, I had majored in Islamic studies.  My introduction to the subject was fortuitous, the product of a spur of the moment decision to study Persian. But the study of Persian led to a survey course in Islamic history. And that course led to a multitude of others.

What Islamic history teaches its students is the contingency of events. The four schools of Islamic law are today the only recognised schools of Sunni law. But there were once more, whose names are now remembered by very few. And even the four schools trace back their differences not just to theological issues but also to the fact that they were originally based in different cities and hence had different legal traditions to work with.

The Shi’ism that I had grown up with was the product of a closed environment. One listened to the clerics and one howled because that is one had always done. More importantly, that is all there was to do. In the Jhang of my childhood, there was nothing else to do besides mourn, nothing else to see and nothing else to do.

In the world that I live in now, I have 81 channels to choose from. On Ashura, PTV offers nothing but mourning as do all the other Pakistani channels. But, as I type this column on the evening of the 10th of Muharram, Star World is showing the final episode of America’s Next Top Model,  another channel is showing a kung fu movie while Channel V is doing a special on Robbie Williams. And all this is besides the distractions that a broadband connection can offer!

I have therefore reached the point where Shi’ism doesn’t make any sense to me. To the extent the essence of my sect is the remembrance of a historical tragedy, I fail to see why this particular tragedy should be remembered above all else or why it should define my life. To the extent Shi’ism is a belief in charismatic legality, I don’t believe in it. This is not to say that I am irreligious: I just don’t believe that access to God is dependent upon the intercession of intermediaries.

At the same time, I cannot reject the faith of my fathers. To begin with, it defines me. Given my name, I could not be more identifiably Shia than if I had the word “Shia” tattooed on my forehead. More importantly, my name defines me as a Syed, a descendant of the Prophet, a designation which rightly or wrongly fetches me an enormous amount of respect from people who care about these things. Above all, there is the fact that my head does not control my heart. The mere fact that something does not make logical sense does not mean one stops feeling. For better or for worse, I cannot listen to “Ghabraye gi Zainab” without being emotionally overwhelmed.

What then is a Shia who cannot reconcile his head and his heart supposed to do? Like others in my position, I draw arbitrary distinctions. I play golf in Muharram but not on Ashura. I don’t go to majalisbut I don’t party either. I don’t listen to vocal music but I figure Bach’s cello concertos are ok.

There is one last ritual though which I still observe religiously. Tonight, after the Majlis e Shaam e Gharibaan finishes on PTV, I will listen to the son of Nasir Jehan sing the songs his father made famous. I will get teary-eyed. But I will then pack up my Muharram dilemmas and put them away for another year.

 

This article appeared first in http://www.3quarksdaily.com on 20 Dec. 2010


[i] The Dubkars were famous for putting ash in their hair and for turning their beds upside down on the night of 9th of Muharram (which symbolised – and ensured – that they would not sleep that night but spend it in prayer).

[ii] Zainab was the sister of Hussain. After his martyrdom, she became the de facto leader of the Shia community.

[iii] My grandmother, of course, was not party to such wimpy behaviour. Her Muharram lasted not just the first ten days but till the 9th day of the Islamic month of Rabi ul Awwal (two months later). Till that day, she would not wear red and would remain very much in mourning.

 

The Ink Spot strategy

In Uncategorized on December 14, 2010 at 3:57 am

In military jargon, the Ink Spot strategy is an approach to fighting popular insurgencies, like the one in Afghanistan. The idea is that you start small with a particular town, secure it and build it up as a safe haven for the part of the population that supports you. Then like an ink spot spreading out on the blotting paper, you reach out to secure the countryside around that city. Repeat this till you control the whole country.

I mention the Ink Spot strategy not because I have bright ideas about how to fight the Taliban, but because a variation of the Ink Spot strategy has recently become one of the hotter items in development theory. Like the military version, the idea here is to concentrate on building up a particular city and turning it into a beacon of excellence with top class infrastructure and social services. And once you have a top-class city, the surrounding countryside follows suit.

Taken by itself there is nothing new about the city-centric approach to development. Jane Jacobs, for one, spent all of her life pushing that idea. What is new these days is the argument that the development of cities should be outsourced to outsiders. For example, one could take a 1000 acre chunk of land and just hand it over to the Singaporeans to run it properly. Or the Germans. Probably not the Italians, but I think you get the picture.

To continue, the idea is that the Germans/Singaporeans/whatever would then be responsible for all civic services within their 1000 acre slice of paradise. They would collect taxes, provide functional utility services, employ honest policemen, the works (for details, check out http://www.chartercities.org). It would be like a little slice of Singapore in Pindi Bhattian. Or Sialkot. Or whatever.

At first blush, there is much to recommend the idea. Speaking for myself, I would be thrilled if somebody, or anybody, could run Lahore like a First World city. I have no real connection to my local government as it is. Frankly, I couldn’t care less whether my local overlord was a local chap or visiting from Mars so long as the city worked. More pertinently, I would happily pay more in taxes to live in a clean and safe environment. And you don’t just have to take my word for it: every Pakistani businessman who has relocated his business or his family to Dubai has already made that same decision.

In fact, some of the Gulf countries have already started outsourcing government functions. Both Dubai and Qatar have set up special business districts in which adjudication services are provided by judges imported from common law countries and in which the commercial laws are based on English law. This allows Dubai and Qatar to offer very high quality, extremely sophisticated dispute resolution forums as an amenity to investors.

For example, the Chief Justice of the Courts of the Dubai International Financial Centre (DIFC) is Michael Hwang, universally recognised as one of the top international commercial arbitrators in the world. And in the case of the Qatar Financial Centre, I recently argued a case before a panel of three judges consisting of the former Chief Justice of Scotland, a former judge of the High Court of Australia and a lady recognised as one of the top 50 commercial lawyers in London.

Does that mean that we should brace ourselves for a new wave of Singaporean-run cities filled with Australian and English judges? As much as I like the idea, I don’t think so. Any Pakistan prime minister who actually approved the outsourcing of his government’s functions would most likely be lynched the next day.

The more interesting question though is this: why do we need Singaporeans or Germans to run our cities? Why can’t we run them properly ourselves?

Logically speaking, there are only two possible answers. The first is that we are either physically or mentally unable to make the right decisions. The second is that we are unwilling to make the right decisions. In other words, we are either stupid or born crooks.

Actually, that analysis is incorrect. The secret to the Ink Spot strategy lies in the realisation that some things are worth paying for. Once you decide to pay the extra money, Pakistanis are just as capable as others of taking the right decisions.

For example, it is a recognised fact that the Motorway Police officials who operate between Islamabad and Lahore are honest, decent and competent professionals. But we have honest, decent and competent Motorway policemen because the Motorway represents a limited, geographically defined problem which has been attacked in part by paying the Motorway Police top of the line salaries. In short, the Motorway Police is an example of the Ink Spot strategy in operation.

The final question then is this: is it worth having First World cities if they are going to be surrounded by a sea of Third World poverty? I’m not sure. But it is certainly preferable to having Third World cities surrounded by a sea of Third World poverty.

This column appeared first in the daily Pakistan Today on 14 December 2010


No, he can’t

In Uncategorized on December 7, 2010 at 5:08 am

Some weeks ago, the cover of Newsweek featured a giant portrait of Chief Justice Iftikhar Muhammad Chaudhry along with the question, “Can Chaudhry save Pakistan?”

My view is no: no judge can save Pakistan, not even the current chief justice.

The only way the current chief justice could save Pakistan would be if the absence of a good chief justice was the reason why Pakistan is in its current dire straits. That is not true: Pakistan is in a mess despite the fact that it has a good chief justice, not because it lacks a good chief justice. What then did the Newsweek cover mean?

Part of the confusion stems from the fact that there was little connection between the question on the cover and the article inside. What the article says is that Pakistan needs the rule of law and that many people support the Taliban because they offer speedier justice than Pakistan’s sclerotic system. Both statements are correct. But neither one justifies the conclusion that the current chief justice of Pakistan, or any judge for that matter, can establish either the rule of law in Pakistan or comprehensively reform the legal system so that it provides justice within one’s lifetime.

The hidden assumption in the Newsweek headline is that Pakistan’s shortcomings are due to a failure of personality. In other words, the argument being put forward is that “if only X was in charge, Pakistan would be fixed.” Seductive as this argument is – see, e.g., the legions of army commanders enchanted by it – the truth is considerably different.

Pakistan’s problems are not problems of personality. Pakistan’s problems are problems of policy. Some of these policy problems require legislative answers and some of them require executive answers. But very few of them can be magically fixed simply by replacing the man at the top. More importantly, those few problems which can be fixed through executive intervention cannot be fixed by the judiciary.

Let me be more precise. The judiciary cannot establish the rule of law in Pakistan and it is a fool’s errand to believe that it can. The rule of law is a social phenomenon, one which encompasses everybody from the highest to the lowest. As per H L A Hart, law exists when people internalise the demands of a particular legal order and follow them. Thus the application of sanctions – for example, through the public punishment of law-breakers – does not demonstrate the existence of law but instead indicates the failure of law. The judiciary can at best demonstrate the existence of the rule of law and it can protect the legal order from attacks on it. But it cannot create that order. Only we, the citizens, can ultimately create that.

But what about the provision of justice? How, you might ask, can anyone deny that is the job of the judiciary to provide justice?

Agreed, but once again, the judiciary by itself cannot provide justice. To begin with, the judiciary is but one part of the system of justice. In terms of criminal law, much of the heavy lifting is done by the police and other state agencies. It is the police which registers FIRs. It is the police which investigates complaints. It is the police which prepares challans. It is the police which along with the public prosecutor bears responsibility for the progress of criminal cases. The judiciary is there, of course, but for the vast majority of citizens, the resolution of criminal law issues means dealing with the police apparatus, not with judges.

In terms of civil disputes, the role of the judiciary is different. In theory, the judiciary can ensure that civil disputes are expeditiously decided. In practice, at least in the case of Pakistan, the volume of cases is simply too much. Think of the judiciary as a traffic policeman. Up to a certain point, a traffic policeman can help the flow of traffic. But if there are fifteen lanes of traffic all trying to pass through one lane, the traffic policeman can wave his arms all he likes, those fifteen lanes are still going to take their sweet time.

The point, in short, is that the judiciary cannot work miracles and that we should stop requesting it to do so. What the “judicial revolution” fixed – hopefully – was the tendency of their Lordships to bend a knee before rampant generals. All other problems remain as before and we do ourselves no favours by assuming that they will mysteriously disappear now that our judges have discovered the virtues of independence. Fixing those problems still requires legislative will and executive effort: fairy dust is in short supply.

Let me finish this rant by quoting what the great American justice, Judge Learned Hand, had to say on the matter:

“I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.”

Amen.

This column appeared first in the daily Pakistan Today on 7 December 2010

“Sala, tum jaisa bohut dekha hum ne!”

In Uncategorized on December 2, 2010 at 3:51 am

Living in Pakistan is not for the faint of heart. Every day brings a fresh batch of bad news. Inflation, corruption, floods, droughts, earthquakes, car-jackings, gang rapes, terrorist killings, target killings, sectarian killings, honour killings – you name it, we got it. We are a one-stop disaster shop.

I don’t mean to be facetious: the national mood these days is about as bad as I have ever seen it, and with good reason. We are high on the list of the most corrupt nations, high on the list of failed states and even higher on the list of unsafe states.

The problem with all of this pessimism is that it overlooks one essential fact: we’re not quite dead yet. Even today, Pakistan is very much a functioning state. We have an army, a navy, an air force, an airline, a judiciary, a civil service, a parliament, a health-care system, an education system, teams which win medals and a thriving – if psychotic – media. I could go on, but the point is fairly simple: we ain’t Somalia and we ain’t Afghanistan either.

The sceptic’s answer to my list would be, “not yet, at any rate.” But seriously, for most of my sentient life, one pundit after another has been warning that we are on the verge of disaster, that in the immediate future, all hell will break loose and  Pakistan will revert to a Hobbesian state of nature in which life will be “solitary, poor, nasty, brutish and short.” Am I in my optimism, the same as the man who jumped off a forty-storey building and – for the first thirty-nine storeys – correctly believed that he could fly?

Let us try and look at this logically.  Analysts – both western and local – present their views as if there were an equation out there with identifiable metrics, something along the lines of a + b + c = failed state. Let us assume that there is such an equation  and let us assume further that “a” and “b” and “c” do all look as forebodingly bad as the analysts claim. Let us assume further that “a” and “b” and “c” should (as per their stipulated values) add up to a failed state. The question then is simple: why not so far?

One answer, as already indicated, is that disaster is round the corner. That may well be true but it is also irrelevant. As the saying goes, I’ll jump off that bridge when I get to it.

The other answer is that perhaps things are not as bad as they seem. I don’t like that response either because it falls in the wishful thinking category. Plainly, things are bad here. We are in deep doo-doo. And, we are sinking deeper.

The only logical response then is that the equation is incomplete. In other words, “a” and “b” and “c” may all be disheartening numbers but that, somewhere out there, is a countervailing variable, one which has till date prevented a complete national meltdown.

It is a little known fact that most special forces operatives are not muscle-bound Schwarzenegger look-alikes. Instead, they tend to be smallish, tough, wiry, bloody-minded indestructible little ruffians who refuse to give up even under the worst of circumstances. What makes them fit to be commandos is their hearts, not their brawn. Or as the saying goes, it’s not the size of the dog in the fight which counts; it’s the size of the fight in the dog.

I did not start this column with the intention of writing a paean to our national character. It may simply be – as Adam Smith once said – that “there is a lot of ruin in a nation” and that what we are seeing is the dying throes of a once vibrant nation. But I refuse to believe that. And so far as I can see, so do most other Pakistanis.

Ardeshir Cowasjee was once hauled up by the Supreme Court for contempt after he had accused various judges of not doing their job properly. Cowasjee appeared but, instead of backing down, pleaded truth as his defence. Faced with an unrepentant Cowasjee, the court beat a hasty retreat, adjourning the matter indefinitely. Some months later, the Musharraf coup happened and the then chief justice was sent packing. Years went by before the former CJ ran into Cowasjee. Had he not brought up the past, probably things would have been fine. But the former CJ was not so wise. Instead, he smirked at Ardeshir and said, “Cowasjee Sahib, aap humaray say buch gaye.” Cowasjee’s response was brutal: “Sala, tum jaisa maaderchod bohut dekha hum ne!”*

The point of this story is that, at least for me, that instinctive flash of resolve defines this nation.  Yes, things are bad here. But our national response to the pessimists remains simple: sala tum jaisa maaderchod bohut dekha hum ne!

This column originally appeared in a slightly expurgated edition in the daily Pakistan Today on 2 December 2010. For those not familiar with Urdu, Cowasjee’s response means “I’ve handled plenty of motherfuckers like you before.”