Feisal Naqvi

Archive for January, 2012|Monthly archive page

Bloggers v. Thanedars

In Uncategorized on January 31, 2012 at 1:56 am

As many people know, Maya Khan used to be employed by Samaa TVas the host of a show called “Subah Saveray Maya kay saath”. Last week, she and about 10-15 other women descended upon a park in Karachi, cameraman in tow, after which Ms Khan proceeded to first approach and then harangue ‘couples’, the term ‘couple’ being loosely interpreted as any woman either sitting or walking within five feet of an adult male.

Ms Khan’s theatrics set off a veritable firestorm in Pakistan’s burgeoning social media. A number of bloggers wrote furious letters to the world at large, five thousand people signed an online petition to Zafar Siddiqui, the Chief Executive of Samaa TV, and a series of very agitated columns appeared in the English media. In my own case, I was angry enough to offer my legal services for free to anyone desirous of challenging Ms Khan’s theatrics in court, an offer accepted first by Nighat Dad at Bytes for All, and then by other organisations.

But just as the final touches were being put on the petition, news arrived that Ms Khan’s employment with Samaa had been terminated. Given that Marvi Sirmed and some other brave spirits had also been agitating within Pemra for action, the issue was whether there was any point in proceeding. After some discussion, the general conclusion that — at least at this stage — there was little to be gained from flogging a dead horse.

Let me make it clear though that this issue is not forgotten. Our media explosion has so far not been accompanied with any real sense of limitation or propriety. In some ways, this is exhilarating. But in some ways, as shown by the Maya Khan episode, there needs to be some minimal sense of propriety, otherwise the media winds up becoming a tool for hypocrisy and bigotry.

From a legal perspective, there are also serious issues that need to be examined. Where, after all, does the right to privacy come from and is it indeed protected by our Constitution?

To begin with, there is no doubt that the Constitution recognises a fundamental right to privacy. In Presidential Reference No. 2 of 2005, PLD 2005 SC 873 a nine-member bench of the Supreme Court had declared the Hisba Bill passed by the NWFP Assembly as violative of the fundamental right of privacy enshrined in Article 9 (Right to Life) and Article 14 (Right to Dignity of Man).

The real questions that arose out of the Maya Khan episode were thus more complex. What are the contours of the right to privacy? And, how is that right to be balanced against the freedom of the press and Pakistan’s ostensible status as an Islamic country?

Our fundamental argument was based on Article 4 which says that every person has a right to be treated in accordance with law. The applicability of this norm to young couples loitering in a park may seem odd but we were trying to invoke the reverse aspect of Article 4, that is the right of every person to be left alone by others except to the extent authorised by law. In short, our argument was that it was Maya Khan’s burden to show the basis on which she was harassing people, not the burden of those being hounded out of a park to show the legal basis for their being allowed to walk together in public.

In terms of the balance between privacy rights and media rights, the short answer is that there is no clear dividing line. Instead, what is ‘appropriate’ depends considerably on how society responds to media intrusion into the private sphere. However, we were trying to establish three basic points.

The first point is that privacy rights differ depending upon the people involved. The media thus may have a legitimate interest in poking into the private lives of public individuals — note, “may” — but that certainly does not justify the media intruding into the private lives of entirely private individuals. None of the young men and women taking a walk in the park was inviting media or public scrutiny and none of them were candidates for public office. Maya Khan’s intrusion was thus unjustified.

The second point that we were trying to establish is that irrespective of where the line between private and public is to be drawn, the Maya Khan episode was certainly well on the wrong side of any line a reasonable person would draw. And it is in this context that we wanted to take advantage of public anger to show that Pakistani society does not support vigilante action in the private domain.

Our third point was in relation to the religious angle. In this context, our point was simple: the Supreme Court had already stopped a provincial government from setting up a ‘morality police’. If so, how could individual television personalities become self-appointed ‘thanedars-at-large’?

Looking back on the affair, I am actually happier that we did not have to file a petition. The firm action taken by Samaa against Maya Khan has caused more ripples in the media world than any judgment could have done. Let’s be honest: television anchors contemplating similar shenanigans are far more likely to be worried about being fired than about becoming the subject matter of Supreme Court petitions.

For media analysts, there is a further point to be noted. Pakistan’s social media world has often been derided by ‘real’ journalists as being just an elitist farce, just like Pakistan’s English print media is routinely scoffed at by Urdu and television journalists as being out of touch. In this case, the outrage was almost entirely confined to Facebook, Twitter and the opinion pages of the English print media. And yet, the force of this outrage was enough to cause a television channel to fire their anchor. This shows that social media is not as disconnected from the ‘real’ Pakistan as ‘real’ journalists like to believe. It also shows that social media is becoming a force to be reckoned with.

Time will tell whether the Maya Khan episode is just another flash in the pan or whether it reflects the first inklings of maturity in our media. Let’s all hope it’s the latter.

Published in The Express Tribune, January 31st, 2012.

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The Abu Drubbing of the British

In Uncategorized on January 30, 2012 at 3:42 am

At about 5 pm this past Saturday afternoon, northbound traffic on the Lahore-Islamabad motorway was flowing freely. Eagle-eyed motorists just about to enter the Salt Range though would have spied, if they had been so inclined, a dark-green Honda pulled over on the verge, its lights blinking to warn passing cars of the fool doing an impromptu bhangra on the roadside.

 

That fool, dear reader, was yours truly. Like all of my countrymen at that particular moment, I was celebrating our pasting of the English cricket team.

 

Even at the best of times, it is difficult to explain to outsiders the precise extent of the joy which a Pakistani win produces. And in this particular case, there was enough history and subtext to keep a whole passel of Freudians happy.

 

Start with the fact that the match was against the English, our former colonial masters; indeed, the very people who introduced us to the game of cricket. Now add to the pupil’s joy at beating the master, the fact that Pakistan and England’s particular history in relation to cricket contains enough snobbery, residual arrogance and false allegations of cheating on the part of the Poms to leave us permanently resentful. Then add to this poisonous history, the fact that a couple of years ago, three young Pakistanis were indeed caught cheating at cricket while in England, those three later becoming the first professional crickets to be sentenced to jail for spot-fixing. On top of all this, add the final fact that Pakistanis view national success at sport as somehow directly justifying the events of 1947, as if thumping the lalas and the goras at cricket validates the deaths of the one million innocents who died during Partition.

 

Even if you get all of that, one final ingredient would still be missing. That final part of the puzzle comes from the misery heaped upon us by our current crop of leaders, as vile and as corrupt a bunch of people as ever set foot on this planet. Put it all together and the average Pakistani finds little reason to smile while even the fortunate Pakistani is constantly required to justify to himself, his continued presence in this country. What keeps people going then is an atavistic faith, a belief that better times are around the corner, that we are better than this and that we could show the world this, if only we had better leaders.

 

Beating England in this Test series thus ticks all the right boxes. It validates us as a nation. It allows us to thumb our nose at the goras and accuse them of whining. It allows us to escape the shame and the stigma of the spot-fixing convictions. And it allows us to believe that we have not failed but that we have been failed by our leaders, because if we were properly led, we too would be gloriously triumphant like Misbah and his men.

 

Now, if you will excuse me, I’m going back to dancing.

Memogate redux

In Uncategorized on January 11, 2012 at 4:20 am

I’m not generally a fan of sequels but my column from a week ago regarding the Supreme Court’s ruling on memogate has raised enough queries (and hackles) that a second shot is in order.
My previous column has been criticised [especially by Asad Jamal, “Not a tantrum, sir”, January 6] on two main grounds: first, that my legal analysis was flawed; and, second, that in our current circumstances, focusing on legal issues was like missing the forest for the trees.

Let me start with the legal issues.

I have been criticised for arguing that the fundamental rights prong of Article 184(3) has been diluted beyond redemption on the basis that the Supreme Court has no jurisdiction to ignore express provisions. Secondly, it has been argued that the memo deals with non-justiciable issues of national security and foreign affairs. Finally, people have argued that the Supreme Court cannot appoint a judicial commission when a separate Parliamentary Commission has also been set up.

To begin with, it needs to be understood that no text — and especially no constitutional text — exists in a vacuum: instead, such texts exist and hold meaning within a larger body of interpretive works.

For example, Article 199 says that a writ petition will only be maintainable if “no other adequate remedy” is available. This requirement has never been interpreted literally but has been broadly interpreted over the past few decades so that the superior judiciary can intervene essentially whenever it feels like it.

The same process of judicial interpretation has happened in the context of Article 184(3) so that what constitutes “enforcement of fundamental rights” has become more and more broadly interpreted. Since 2005 — i.e. when the current Chief Justice took office — this expansion of public interest litigation has reached new bounds. As my learned friend Asad Jamal has noted, I am not a big fan of this development. But as a lawyer, I do not have the option of turning a blind eye to twenty plus years of consistent jurisprudence.

The other law points are easier to deal with. Take, for example, the issue of non-justiciability. So far as I can see, the memogate ruling does not decide any question of national security or foreign relations: the Court only directed the formation of a commission to investigate a possible crime. Had Asma Jahangir taken the position that no crime had been committed even if the memo was genuine, the position would have been different. But in this case, she expressly conceded that “if the involvement of her client in writing the memo was proved, it constituted a criminal case against him”.

The final law point relates to the overlap between the judiciary and parliament. The simple answer here is that parliament and the judiciary have mutually exclusive jurisdictional realms. Parliament is the only body that can decide whether a president should be impeached. But the judiciary is the only body that can decide whether a person is to be convicted. If the judiciary was claiming the right to impeach the president, I might understand the criticism. But at present, it seems as if the PPP’s lawyers are claiming that only the parliament can investigate any crime if it is related to a potential impeachment: at least from my perspective, that claim seems invalid.

A more practical criticism is that if the judicial commission comes to the conclusion that Husain Haqqani has committed a crime, it will be very difficult for any subordinate judge to disagree. Asma’s view is, therefore, that the executive branch should carry out the investigation as part of its regular duties.

I think that there is some validity to this line of argument. However, the problem here is that not only does this case involve extremely sensitive issues but it also implicates the head of the executive branch. In such circumstances, asking the executive to handle the investigation means asking the executive to investigate itself. The standard option — at least in the US — is to have such investigations handled via an independent counsel, as was done in the Watergate case (for Nixon) and in the case of the Whitewater scandal (for Bill Clinton).

Leaving aside theory, let me ask a simple question: given the stakes, how is it contrary to the national interest for the memogate investigation to be handled by three sitting, extremely well-respected judges of the superior courts as opposed to some random low-grade police official? Saying that everybody is equal before the law misses the point. Some cases are clearly more important than others and they do need to be treated more carefully.

I come now to the non-legal criticism. The argument here is that the memogate ruling should be seen not just in legal isolation but in a political context. More specifically, it should be seen in a political context where Pakistan’s ever-resilient establishment is trying once again to undermine the growth of democracy by removing a popularly elected government. The complaint thus is that by intervening in the memogate scandal, the judiciary has sided with the establishment in “a slow motion coup”.

The short answer to this argument is that correlation is not causation. Yes, the establishment does not like Zardari and yes, the judiciary is not too fond of him either; but this does not mean that the judiciary dislikes him because the establishment hates him or even that the judiciary is willing to act as an accomplice in his extra-judicial removal. If anything, the Supreme Court has gone well out of its way to squelch rumours that it is prepared to welcome a military coup. One may also note that there is more to democracy in Pakistan than just the PPP.

For me, at least, the crux of the matter is Asma’s concession that if true, not only did the allegations against Husain Haqqani constitute a crime but that the president was also liable to be impeached.

If the allegations against Husain Haqqani can constitute a crime, then it follows that they must be investigated. If that investigation has the potential to compromise a sitting president, then it follows further that the investigation must meet the highest standards. A commission headed by three sitting high court chief justices may or may not meet those standards. But it certainly has a better chance of doing so than an investigation supervised by our current interior minister.

Published in The Express Tribune, January 10th, 2012.

An unbecoming tantrum

In Uncategorized on January 6, 2012 at 11:12 am

Asma Jahangir has a redoubtable and well-earned reputation as a champion of human rights. Most recently, she has garnered much praise for her criticism of the Supreme Court’s decision to set up a commission on memogate. I yield to no one in my admiration of Madam Jahangir’s courage; but she is wrong in this case.

To briefly recap the memogate issues, an article appeared in the foreign press in which one Mansoor Ijaz claimed to have handed over a memo dictated by Husain Haqqani — Pakistan’s then ambassador to the United States — to Admiral Mike Mullen, the then head of the US armed services. Mr Ijaz has further said that the memo was given to him on the basis that it represented the sentiments of Asif Ali Zardari, the president of Pakistan.

The memogate scandal — as this imbroglio has been dubbed — wound up in the Supreme Court courtesy of a petition filed directly by Mian Nawaz Sharif under Article 184(3) of the Constitution seeking an impartial probe into the alleged scandal. The petition was resisted by Husain Haqqani as well as the Federation of Pakistan mainly on the grounds that the Supreme Court lacked jurisdiction. On December 30, 2011, the Supreme Court rejected the maintainability arguments and instead issued a short order directing the formation of a three-member commission composed of the chief justices of the Sindh, Islamabad and Balochistan High Courts to “ascertain the origin, authenticity and purpose of creating/drafting” the alleged memo.

Asma Jahangir’s response to the short order has not held back any punches. According to news reports, she stated that this was one of the darkest days in the history of the judiciary. She further alleged that the nine judges of the Supreme Court were acting under the influence of the security establishment. Finally, she has announced her resignation as counsel for Husain Haqqani on the basis that she lacked all confidence in the judiciary.

Let me first begin by saying that Asma’s views should not be treated as constituting contempt of court. The Supreme Court of Pakistan now occupies a central role in Pakistan’s politics and it cannot both simultaneously seek to hold centre stage and demand that it be immune from all criticism. The standard response to this from the judges is that criticism must be moderate. I disagree; the very essence of criticism is that it must be allowed to be immoderate, otherwise there is too great a danger of it becoming stifled. I obviously disagree with Asma’s views but I certainly believe in her right to express them as freely as she wants.

Having said that, let us now go back to the underlying issue. So far as I understand, the fundamental argument advanced by Asma on behalf of Husain Haqqani was that the matter did not fall within the original jurisdiction of the Supreme Court under Article 184(3) (which provides that the court may directly hear a matter if it is a matter of public importance relating to the enforcement of fundamental rights.)

Let us look at those two requirements separately. So far as the issue of public importance is concerned, it was conceded by Asma that if the memo had actually been delivered on behalf of the president then the president would be liable to be impeached. Self-evidently, the authenticity of a document capable of justifying the impeachment of the president is a matter of public importance.

The tricky part, actually, is the fundamental rights prong. The problem here from Asma’s perspective is that this requirement has become so diluted through judicial activism that it has become essentially meaningless. Major issues of public importance thus regularly bypass normal channels and head directly to the Supreme Court. This is not a legal development which I particularly like. At the same time, it is a fact of life which has been established through any number of cases.

In this particular case, it is important to note two things. The first is that the existence, the contents and the delivery of the memo are not in dispute. Instead, the only dispute is whether Husain Haqqani had anything to do with the preparation of the memo or whether the memo is entirely a figment of Mr Ijaz’s imagination.

The second point is that the Commission set up by the Supreme Courtcannot determine the authenticity of the memo. Instead, the most the Commission can do is investigate the authenticity of the memo and give its report. The conclusions in the Commission’s report may form the basis of criminal charges filed against Mr Haqqani, but those charges would still be adjudicated by a competent court after a full trial.

In short, what the Supreme Court has short-circuited is not the trial of Husain Haqqani but the investigation into his alleged crimes. Is this textbook procedure? No. Is it unprecedented? No.

Criticism of the Supreme Court’s order therefore boils down to the question of whether or not the court was justified in taking over investigation of the memo. Given the fact that the memo can realistically form the basis of a presidential impeachment — as conceded by Asma herself — I personally find the Supreme Court’s decision to try and ensure an investigation of the highest possible standards to be prima facie reasonable.

This, in turn, brings me to the final point. Asma Jahangir has summarily dismissed the Commission as not being independent. I do not think that the three honourable members of the commission deserve this treatment. Each of the three is a distinguished jurist with an impeccable reputation. In the absence of any specific, substantiated allegations of bias, they deserve better than to be castigated as establishment stooges merely because Madam Jahangir is unhappy with a particular decision.

Two years ago, when Asma Jahangir ran for president of the Supreme Court Bar, I proudly voted for her. I am still proud of her achievement as the first female president of the SCBA. I am not proud of her recent tantrum. As a senior and eminent lawyer, she owed a duty not only to her client but to the institution of the law. I think she failed that second duty.

Published in The Express Tribune, January 4th, 2012.

The Bold and the Beyghairat

In Uncategorized on January 6, 2012 at 11:10 am

Who says live entertainment is dead in Pakistan? Turn on the TV and you can watch non-stop all-day episodes of the world’s biggest soap opera.

Like all the best soap operas, Pakistani politics mixes multiple storylines, high drama with low farce and shady escapades with death-defying heroics.

One story arc tracks the continuing rise of Imran Khan, now freshly empowered by the anti-establishment credentials of Javed Hashmi and the success of the Karachi jalsa (which, in turn, was enlivened by the best supporting actor performance of Shah Mehmood Qureshi).

Another storyline follows the freestyle wrestling match between the PPP and the army. In the red corner, we have the lumbering spirit of Andre the Giant as represented by the military. In the blue corner, we have the jiyalas doing their best impression of Rey Mysterio, the pint-sized masked luchador from Mexico known for his high-flying moves off the top-rope.

Like all wrestling matches, the referee, too, is part of the storyline.Enter therefore the Supreme Court, trying grimly to preserve its neutrality while also ensuring that the match follows the standard wrestling rules (no gouging, no spitting, no low blows) while each of the protagonists tries wholeheartedly to ‘accidentally’ knee the other in the unmentionables.

In the low farce category, we have a glut of noteworthy performances;Exhibit A being the tearful (and subsequently rejected) resignation on live television of the information minister, allegedly because of interference in her official duties. But while Apa Firdous may get the Oscar, honourable mention goes to the ‘shock and awe’ style assault on Nawaz Sharif’s birthday cake by the rank and file of the PML-N, followed shortly thereafter by the antics of the souvenir-minded PTI supporters who decided that their attendance at the meeting commemorating the entry of Khurshid Kasuri into the ranks of Imran Khan supporters entitled them to take home as many plastic chairs as they could carry away.

At this point in the column, I can just about sense the older, grumpier readers nodding their heads sagely and murmuring how the country is going to hell. Well, call me a contrarian but I think there is room for hope in this storyline too.

To begin with, there is nothing new about us going to hell. In fact, so far as I can remember, we’ve always been going to hell. To steal the words of Andy Rooney, “It’s just amazing how long this country’s been going to hell without ever actually having gotten there”.

On a more substantive note, I think the grumps are missing the forest for the trees: there is real substantive change happening in Pakistan.

For the past 60 plus years, we have been locked in a cycle of political despair where incompetent civilian governments have repeatedly wasted the opportunities provided to them and instead continually revalidated the army’s central thesis that the civilians cannot be trusted to exercise power in a responsible manner.

You may ask what is different this time? After all, neither the PPP nor the PML-N has done much over the past four years to change anybody’s mind.

True enough, I concede. However, what is different this time is that the incompetence of the current ruling parties is likely to be punished not through popular acceptance of a coup but through the emergence of an alternate political party.

Before I explain why this is a big deal, please note that I am by no means convinced that Imran Khan and his cohorts can even get into power, let alone wipe out corruption in 90 days, fix Balochistan and part the Red Sea. As @karachikhatmal wittily remarked on Twitter, “There are more unrealistic expectations being placed on Imran Khan than on a new bahu on a Star Plus soap”.

To return to my point, it is a great big deal that the Pakistani public has decided to hold its nose and put up with the shenanigans of the ruling families till such time that they get the satisfaction of voting them out. It is a great big deal because we have never had a situation in Pakistan (at least since 1958) where one democratically elected government has succeeded another (and no, I don’t count 2008).

What this succession would do — assuming it is allowed to happen — is that it would establish the principle of accountability in a far more powerful manner than all the rhetoric about ehtesab. At the end of the day, what politicians fear is not so much the thought of dealing with corruption charges but the thought of becoming irrelevant. It is this fear which is driving the lemming-like rush towards the PTI, as hordes of once nicely situated notables find that their carefully planned investments of social capital in Party A or Party B have gone up in smoke like so many dot.com stocks.

To take another analogy, the abiding image of WW I is of two grimly determined enemies endlessly grinding and gassing each other into the mud of Flanders; a world aptly described by Siegfried Sassoon as “the hell where youth and laughter go”.

The stalemate produced by trench warfare was ultimately broken by a number of factors, including the use of tanks at the battle of Cambrai in 1917. What was once a static war of attrition suddenly became an open field contest in which speed and manoeuvre were restored as battlefield virtues.

What we are seeing in Pakistan is — I hope — the equivalent of that development. We are shifting from a war of attrition between two set political parties into a war of movement between multiple different parties, a war in which the same old tropes will no longer suffice. Again, I don’t know who will win the battle. But what counts is that the terms of the fight are changing.

This is my last column of the year and I would like to end it with a tip of the hat to Sheherbano Taseer for the lovely sentiment she displayed in a recent interview. “People call Pakistan dangerous,” she said. “But I don’t care. It’s beautiful and it’s mine”.

Good luck, young lady, and may your family find more happiness in this year than it has found in 2011.

Published in The Express Tribune, December 28th, 2011.

A step too far?

In Uncategorized on January 6, 2012 at 11:09 am

The recent decision of the Supreme Court to take notice of the memogate imbroglio and to order an enquiry has run into a storm of criticism. The PPP has immediately suggested that the Supreme Court’s actions are part of a “Bangladesh Solution” designed to replace the existing government with a panel of technocrats. Various sympathisers in the media have made harrumphing sounds. And even normally cooler heads have suggested somewhat politely that thedecision of the Supreme Court to get involved was not entirely appropriate.

In all of this, the one question which has energised the legal community is whether the Supreme Court’s intervention was in accordance with law. Unfortunately, this is the wrong question.

It is the wrong question because issues like the boundaries of the Supreme Court’s jurisdiction are not issues which can be answered with reference to the text of the Constitution or even existing precedent. Instead, issues like this exist in a ‘grey area’, where the ‘rightness’ and ‘wrongness’ of decisions depends upon the degree to which they are accepted.

The normal reaction of non-lawyers to this argument involves expletives and bovines. How is it, they ask, that courts can somehow bootstrap their way into new jurisdictional domains? To paraphrase one famous scholar, courts are not Frankenstein-type creatures which can live independently of their creators. Instead, their argument is that courts are creations of the Constitution and bound by the limitations contained therein, as much as the other branches of government.

The problem is that while this concept is fine in theory, the words of the Constitution are not like blocks of stone: instead, they are more like clay, to be molded and remolded by successive generations of judges. More importantly, it has always been so.

There is an old story much told in the Talmudic tradition of a debate between some rabbis regarding the proper interpretation of a particular passage in the Torah. At one point, a dissenting rabbi tells the other scholars that if he is wrong, God should strike him dead, whereupon nothing happens. The dissenting rabbi then prays for a miracle to show the other rabbis that he is indeed correct. Lo and behold the miracle happens but the other rabbis stick to their position. Ultimately God himself intervenes and tells the various rabbis that the position taken by the dissenter is, in fact, correct. And at that point, the rabbis tell God that He is not in charge of the interpretation of the Talmud but that this is a responsibility to be discharged exclusively by them. Whereupon God concedes the exclusive right of the rabbis to interpret the Torah even if God Himself disagrees with the interpretation!

A more recent example comes from US history. Many people know ofMarbury v. Madison as the famous case which introduced the concept of judicial review, i.e. the idea that the judiciary has the power to strike down laws repugnant to the Constitution. Nobody now argues that Marbury was wrongly decided. But the fact of the matter is that Chief Justice Marshall’s entire argument in that case was built upon thin air, not constitutional text.

A third example comes from across the border and the concept of ‘basic structure’ developed by the Indian Supreme Court in order to strike down amendments to the Constitution. The basic structure doctrine is now beyond dispute in India. At the same time, the idea that amendments to the Constitution can themselves be struck down by the judiciary is completely and utterly foreign to American constitutional jurisprudence: one may as well suggest to NASA that moon landings are a bad idea because the lunar surface is composed of cheese.

Let us return now to the point from which we started. Is the Supreme Court ‘right’ in directing an enquiry into memogate?

Speaking for myself, I am not particularly outraged. Given all that has happened in our jurisprudence, directing an enquiry into what is prima facie a very serious matter is hardly novel jurisprudence. In any event, it’s not as if the Supreme Court is going to try Mr Haqqani itself. If the enquiry reveals any evidence of wrongdoing, then the most the Supreme Court can do is to direct the federal government to proceed in accordance with law and initiate criminal proceedings against Mr Haqqani. True, there is the outside possibility that the Supreme Court could direct the army to court-martial Mr Haqqani under the Army Act, 1952, but that would likely provoke too much controversy for even the current bench to handle.

The point, though, is that my carefully considered legal opinion is not relevant. As already stated, the memogate issue falls into a jurisprudential twilight zone where the legality of what the Supreme Court does is determined not by existing precedent so much as by the public’s reaction. And in this case, the public’s reaction seems decidedly dubious.

I make no claims about knowing what the public thinks. But I do know what my father thinks since he took the liberty of informing me very clearly that the Supreme Court, in his opinion, was now interfering with democracy. At least demographically and socially, I would imagine that my father, as a 75-year-old retired executive, would fall squarely in the bracket of people convinced that Zardari is a thief and that heaven and earth should be moved in order to nab him. The fact that people like my father are now perturbed by the gyrations of a court which they once cheered on is, therefore, at least one very small sign that the tides of public opinion may be shifting. Again, this may not be because the intervention in memogate is so legally unsound; but there comes a time when even a straw can break a camel’s back.

Published in The Express Tribune, December 14th, 2011.

Up the Revolution!

In Uncategorized on January 6, 2012 at 11:08 am

The demise of Steve Jobs some weeks ago produced an extraordinary outpouring of emotion. People from the world over united in hailing him as one of the greatest minds of the ages, a sage who had changed the world as few had done before him.

In the middle of all this Jobs-worship, there were a few dissenting voices. He invented nothing, they said: he was but a tinkerer at the margins, one who did no more than polish and present the ideas of others.

The answer to this debate — at least, in my view — was provided by aMalcolm Gladwell article that argued that it was precisely his talents as a tinkerer which qualified Jobs for genius status. In other words, Gladwell’s point was that ideas by themselves mean nothing, but that it is the application of the ideas — especially the popular adaptation of ideas — which means everything. Jobs may not have invented the MP3 player or the tablet computer or the online music store or even the computer mouse; but what he did do was to take each of those technologies and perfect them so that they stopped being the playthings of a few and started being the tools of the many.

I mention Gladwell’s point for two reasons.

The first is that his analysis has resonance far beyond the status of Steve Jobs in the pantheon of great men. Instead, what it shows is that society unjustly celebrates the new and the revolutionary without giving enough credit to those who make ‘the new’ workable.

The second is that calls for violent revolution are once again ringing the air here in Pakistan, with legions of what Ayaz Amir calls ‘armchair samurais’, some now retired from decades of government service, calling for change in apocalyptic terms. And revolutionaries make me want to puke.

In case I was not clear enough, let me elaborate: I don’t like revolutions. I think revolutions are a dodgy business with entirely unpredictable consequences. They are, in any event, unnecessary.

To digress for a bit, Titanic Thompson was a famous hustler of the last century. One of his favourite tricks for parting suckers from their money was to bet people whether or not he could make a particularly long putt. Since the odds on him making that putt (i.e. rolling it along the ground into a hole some 40-plus feet away) were normally very low, people happily took up the challenge. And invariably lost.

The secret of Titanic Thompson was that he would water the putting green the night before and leave a hosepipe on the green leading to the hole. The weight of the hosepipe would leave a very small depression on the grass, enough so that when Thompson was out hustling the next day, his ball would no longer be rolling on a flat surface, but in the middle of an invisible trough leading to the hole. Needless to say, Titanic Thompson suckered a lot of people out of a lot of money using that particular trick.

People who look to revolutions for salvation are the equivalent of those suckers who didn’t know the way in which the game had been rigged. Power does not flow smoothly across the land as if it had no memory. Instead, generations of human existence have produced multiple invisible paths that channel the exercise of power. These invisible inherited patterns of power operate at a deep level and they change very slowly.

Revolutionaries tend not to disagree with the analysis that power in societies tends to be channelised through established forms. Instead, their usual reply is that revolution is necessary precisely in order to destroy such established norms of power and to permit a more equitable order.

The problem with these revolutionary analyses is that they are not just simplistic but stupidly optimistic. They are the equivalent of arguing that all you need to produce a modern architectural marvel is to blow up an old building in the correct way, so that after tumbling in mid-air, all the bits of pieces of the old building come down to earth in the correct order.

Unfortunately, only the explosion is easy. What happens instead is that the promised new and improved model never shows up and what one finds is a pile of rubble which then needs to be reconstructed, brick by shattered brick, into a new edifice.

Does this mean that we should give up on striving for a better society? Absolutely not. Instead, my point is that true change comes incrementally, one step at a time.

We have now reached the point where the Washington Consensus, the latest one-size-fits-all policy prescription, stands thoroughly discredited. There are plenty of other ‘solutions’ waiting in the wings to be tried but what we need to remember is that none of them will offer a universal answer. Instead, what works is trial and error. And even that approach remains problematic because the pace of change in today’s world is such that a solution identified after years of painful effort can become redundant the moment it is brought into play.

To return then to Steve Jobs, it is true that he did much to change the world that he lived in. But Jobs changed the world not by retiring to a dark room and coming up with brilliant ideas. Instead, Jobs changed the world by taking brilliant ideas and obsessively honing them to perfection, making them simple and intuitive in operation, so much so that the entire relationship between man and machine stood transformed.

If anything, politics is a more conservative field than business. We do not have the luxury of trying to reinvent the wheel every few years and we should give up trying to do so. Sod the revolution.

Published in The Express Tribune, November 22nd, 2011.