Feisal Naqvi

Archive for July, 2012|Monthly archive page

Know thy facts

In Uncategorized on July 17, 2012 at 4:22 am

There are moments in my academic past of which I am quite proud. Getting a distinguished Yale Law School professor of Constitutional Law to swear at me in open class is not one of them.

Some context first; the debate in question related to US vs Fordice, a case then pending before the US Supreme Court. The facts were that prior to segregation being declared illegal, Mississippi universities had been strictly divided into universities for blacks and universities for whites. After the US Supreme Court declared segregation illegal, Mississippi’s universities were ostensibly desegregated. However, a race-neutral admission test was implemented under which any student wanting to go to the historically white universities had to meet a minimum standard. The result was that the historically white universities remained overwhelmingly white, while the historically black universities remained overwhelmingly black. It was this de facto segregation that was under challenge.

My view then was that if the segregation resulted from a race-neutral test, then there was no ‘principled’ basis on which to declare it illegal. In other words, it was rational for the state to have universities of different standards and it was not the fault of the state if blacks could not meet the minimum entry standards. And it was this view, which had driven my normally mild-mannered professor to expletives.

As it turned out, all nine members of the US Supreme Court disagreed with me, a fact that I filed away under the general heading of  ‘inexplicable mysteries’, at least, until the day I read a biography of Judge Frank Johnson.

Judge Frank Johnson was a district judge based in Alabama who became the point man for judicial efforts to force desegregation. What I learnt from his biography was that disputes regarding blacks and whites in the American South could not be seen in terms of abstract principles. Instead, because opponents of desegregation had used every ostensibly neutral option to try and prolong white domination and that, as a consequence, the judiciary had decided that no rationale and no argument would be accepted for whatever reason, unless and until it produced desegregation in actual fact, principles be damned.

I mention all of this because our country will soon be plunged into a maelstrom of debate when the Supreme Court takes up the constitutionality of the new contempt law. All sorts of abstract principles are going to get thrown around. But this is not a case about high jurisprudence. As with the Mississippi colleges, judgment will be driven by the desired result. And I don’t have much of a problem with that.

Before I explain why I don’t have a problem, let’s review the facts. The new contempt law has been passed solely for one reason, that is, to try and delay the inevitable disqualification of Raja Pervaiz Ashraf for failing to implement the NRO judgment. In my view, the PPP’s stated excuse for not writing to the Swiss is rubbish. However, I also think the Supreme Court should avoid yet another fight by setting up a commission to send the letter directly to the Swiss.

Wait, you ask, if the Supreme Court shouldn’t be fighting with the PPP over this issue, how is striking down the new contempt law justified? Let me explain.

The short version is that all legal principles are not equal. Some principles are more important, more fundamental and more ‘weighty’ than others. And out of all legal principles and concepts, perhaps the most important is the concept of a ‘rule of law’.

There is no precise definition of the term ‘rule of law’. However, the essence of the concept is that the rule of law requires the exercise of governmental power to be subject to certain rules enforced and interpreted by an independent authority.

The new contempt law provides that certain high political functionaries such as the President, the Prime Minister and federal ministers cannot be charged with contempt for  “any act done or purported to be done … in exercise of their powers and performance of functions as a public office holder”. In other words, what the contempt law provides is that our President, Prime Minister and federal ministers will henceforth have the right to ignore the courts and instead only apply such laws as they deem fit. Self-evidently, this is a complete negation of the rule of law.

At the same time, the new contempt law is not what scares me because that law is as good as dead today: all that remains is the formality of declaring it unconstitutional. Instead, what scares me is what lies beyond. If the majority of Parliament can be so unmindful as to enact this law, can the day be far behind when the Constitution itself will be amended to provide the same?

I hope that day never arrives. If it does, the country will learn that because of our history of constitutional adventurism, our judiciary has developed a vast arsenal of techniques to protect the Constitution. For example, all our military dictators have tried to provide immunity to their deeds through constitutional amendments. And in each case, the courts have steadfastly held that actions that are mala fide and without jurisdiction can never be protected from judicial scrutiny, irrespective of what any validation clause may say.

There is also one final ‘nuclear’ weapon that our judiciary holds in reserve — the ‘basic structure’ doctrine. Our judiciary has never applied that doctrine and, in fact, has never even held that it has the power to strike down constitutional amendments. But I have no doubt that if the immunity provision was incorporated into the Constitution, then that amendment too would be struck down.

It has now become trite to observe that we are witnessing a power struggle between the judiciary and Parliament. Perhaps, that was true earlier but it is no longer accurate. What we are witnessing instead is a struggle between visions of Pakistan — between those who want the rule of law and those who want the rule of man. For now, the rule of law is safe. But if this confrontation continues, the result may be a loss for both sides: an end to the rule of law, as well as an end to those men currently doing the ruling.

Published in The Express Tribune, July 17th, 2012.

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Not worth the time

In Uncategorized on July 16, 2012 at 11:00 am

As a weary Pakistan gears up for the by-now hallowed ritual of ‘PM ko jootay maro’, it is worth going back and remembering what this whole mess is about.

In 1997, the PML-N government wrote to the Swiss authorities and asked them to investigate allegations of corruption against various persons, including one Asif Ali Zardari. Subsequently, various accountability cases were launched against Mr Zardari. None of those cases ever reached finality. In 1999, Mr Zardari was convicted in the SGS-Cotecna case by a bench of the Lahore High Court headed by Justice Malik Muhammad Qayyum. However, Justice Qayyum was later found to have privately discussed these cases with various members of the Nawaz Sharif regime and the Supreme Court rightly set the conviction aside.

The Musharraf regime then seemed to give up on the idea of actually getting a conviction, preferring to let matters slide. In 2004, Mr Zardari was released on bail after having spent eight years in jail without ever getting convicted.

In 2007, all cases pending in Pakistan against Mr Zardari disappeared via the National Reconciliation Ordinance (NRO). The-then Attorney General, Justice (retd.) Qayyum wrote to the Swiss authorities on May 22, 2008, and formally withdrew the request for cooperation. Justice Qayyum also informed the Swiss that the prosecution of Mr Zardari had been found to be “politically motivated” and that the contract to SGS-Cotecna had been awarded “in good faith in discharge of official functions”.

Presumably, the Swiss found it reassuring to be told that the prosecution of Mr Zardari had been mala fide by a judge who himself had found that very prosecution not only to be bona fide but fully substantiated. In any event, the Swiss then formally closed their proceedings.

In 2009, the Supreme Court declared that the NRO was a law which — at least in legal terms — had never existed. The 2008 letter by Malik Qayyum was also declared to be illegal, the earlier request was “declared never to have been withdrawn” and through the now famous para 178, the Federal Government was directed to inform the Swiss of this fact. And then the PPP rebelled.

The hearing of the inevitable review petition was first delayed through normal means and then some more farcical. The PPP refused to re-engage the lawyer who had argued the NRO case the first time around and the Supreme Court refused to let the PPP hire new counsel. Eventually, the Court relented, but both the then law minister and his law secretary then refused to appear. Left with no option, the Supreme Court dismissed the review petition.

The SC then repeatedly asked the Federal Government what steps it was taking to implement Para 178. When no reply came, the Court passed an order outlining six options and asked the Federal Government to respond. On the next date, the-then attorney general of Pakistan stated that he had been given no instructions. Had the learned attorney general dropped his trousers and mooned their Lordships, the Federal Government’s response might have been marginally more contemptuous. But only marginally.

Not surprisingly, contempt proceedings followed. Mr Gilani appeared and stated he was shocked, shocked to learn that his instructions regarding compliance had not been followed. In response, the Court repeatedly stated that all contempt proceedings would be dropped if only Mr Gilani would commit to informing the Swiss. But Mr Gilani refused to give this commitment.

Mr Gilani was accordingly found to be in contempt and sentenced till the rising of the court. He was not declared to be disqualified in express terms. Instead, the Court indicated that this was a process to be followed through other means, presumably by means of a referral by the Speaker of the Assembly to the Chief Election Commissioner. The Speaker, however, refused to make any such referral, thereby forcing the Court to intervene again and overrule her decision.

Public discussion of this hullaballoo has tended to focus on two ostensibly competing points. The jiyalas say that the immunity enjoyed by Mr Zardari under the Constitution prevents the letter from being written. And the jaan-nisaars insist that the rule of law trumps all other considerations, immunity be damned.

The problem here is that neither side is being completely honest. This is because all the Federal Government needs to do is to inform the Swiss authorities that they should regard the 2008 letter as never having been written. They do not need to ask for any cases to be reopened. And it is unthinkable that the Swiss would proceed against Mr Zardari so long as he remains president.

Why then is there so much huffing and puffing about immunity? The short answer is that the PPP has decided not to write the letter for tactical reasons and is throwing up a legal smokescreen. The Federal Government has never even pleaded immunity under Article 248 before the SC. Instead, it has studiously avoided the topic, fearing that the Court will shred what little protection now remains available to Mr Zardari.

The Supreme Court is also not helping its cause by making intemperate observations about the need for Mr Zardari to be prosecuted. The truth is also that Mr Zardari enjoys immunity under the Constitution and the Government of Pakistan cannot legally ask the Swiss to prosecute him.

In short, what has happened is that the PPP has constructed a fake argument to distract the Supreme Court and the Supreme Court insists on charging like a mad bull every time the red flag of this dummy argument is waved at it.

Does the Court now have any option but to disqualify the new PM. Yes, it does. What it can and should do is write the damn letter itself and let the Swiss take it over from there. Indeed, Justice Khosa’s famous ‘six options order’ had specifically mentioned this as a possibility.

The PPP has an endless supply of workers happy to sacrifice their seats in exchange for the glory of being a former PM. On the other hand, the Court has limited time and resources, both of which would be better directed towards our fixable problems rather than wasted in playing an endless game of ‘whack-a-mole’ with the PPP.

Time to move on, your Lordships. There is other work to be done.

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

Making our democracy ‘antifragile’

In Uncategorized on July 16, 2012 at 10:59 am

It is received wisdom amongst Pakistan’s elite that democracy can never work here because our people are stupid. Actually, the only real reason why democracy has consistently failed in Pakistan is thatour elites are stupid.

Democracy is not just the ability to vote for people every five years. Instead, democracy is a political process in which people have the ability to hold their leaders accountable by voting them out. The greater the ability of the people to hold people accountable, the more responsive and democratic the system. This, in turn, requires that decision-making be decentralised to the maximum extent possible so that the people’s accountability can operate on as fine a scale as possible.

Unfortunately, what we find in Pakistan is the exact opposite. What we find is that all opportunities for popular accountability are systematically eliminated except those which are constitutionally unavoidable. What we find is that all decision-making is concentrated into the least possible set of hands so that everybody else becomes merely a conduit for power.

The best illustration of the castration of democracy in Pakistan is the elimination of the local government system bequeathed by General (retd) Pervez Musharraf. Yes, it was complicated. But lest we forget, it was also a system in which people were represented through elected assemblies at the union level, at the tehsil level and at the district level, with each level having serious money to play with.

Let me put this in number terms. Today, there are a total of seven popularly elected assemblies (six, if you count out the Senate). In 2007, there were 6,628 more (102 district councils, eight city district councils, 332 tehsil councils, 62 town councils, and 6,125 union councils — minus the Gilgit-Baltistan Legislative Assembly, which did not exist earlier). In 2012, there are a total of 1,207 members of the Senate and the National and the Provincial Assemblies. In 2007, there were 85,210 more people representing Pakistanis in elected assemblies.

The failure to hold local body elections is, in true words, a conspiracy. Every single political party in power in any province of Pakistan has conspired in this murder of democracy. Not one single province has held local body elections for four years and while the courts have recently started to push back, they too must share part of the blame.

In his latest book, Nassim Nicholas Taleb introduces the concept of  “Antifragility” as a property of systems. Taleb’s point is that nobody really knows what goes on in big systems and how things interact. The important thing, therefore, is to hedge your bets the way organic systems do so that even a “black swan event” doesn’t wipe out everything. As he points out, it is more harmful to jump once from a 100 metres than to jump 100 times from one metre.

Let me put this in simpler terms. If, God forbid, bird flu was to hit Pakistan, it is likely that the vast majority of Pakistan’s poultry industry would be wiped out. This is because the poultry industry, like many modern agro-businesses, deals in monocultures, one particular breed of one particular chicken. Nature, on the other hand, is always experimenting so that at any given time, there are literally millions of different genes competing for survival. Modern poultry breeding is a fragile system. Nature is antifragile.

The problem with democracy in Pakistan is that our leaders insist on making it “fragile” (in the Talebian sense). They insist that all other rival centres of popular authority are annihilated and they then insist further that all decision-making power gets further concentrated in their hands.

The absurdity of this approach can be seen most clearly in Punjab where a province of 86 million people — one that by itself would be the 15th largest country in the world — is being governed in effect by one person. At one time, Mian Shahbaz Sharif held 18 portfolios in his own cabinet (though, I believe, the number now has diminished).

This is madness. It is also unfair to the people of the Punjab.

Another example of how power becomes not just centralised but concentrated in one person can be seen in the recent elevation of Raja Pervaiz Ashraf to the office of the prime minister. The decision as to who to nominate should have been a consensus one because the PPP needed the support of the PML-Q and the MQM. However, both coalition parties said that they would leave the decision to the PPP. The PPP said that the decision would be made by the Central Executive Committee (CEC). And the CEC decided to repose its entire confidence and decision-making powers in the hands of the co-chairman of the PPP, Mr Asif Ali Zardari.

The desire to centralise power is not one which afflicts executive officials alone. The unanimity with which the Supreme Court now speaks is such that, according to one commentator, “not one judge in these four years [since the restoration of the CJP in 2008] has disagreed on a single point of law in a major constitutional case”. I agree entirely that this is a disturbing sign. Common law courts form a resilient, antifragile judicial system precisely because they allow for a multiplicity of views to exist before being slowly resolved over time. Views thus get thrashed out amongst different judges with different viewpoints. Good points and bad points both get slowly identified. And only the concentrated common sense of the judiciary eventually survives.

By contrast, what one sees quite often is a multiplicity of issues getting decided directly in the Supreme Court, and that, too, without dissent. This is not a healthy development. Dissent is a good thing because it is a sign of life, a sign of independent thinking, and more importantly, because today’s dissent can become tomorrow’s orthodoxy. More importantly, we need to give appropriate time for these issues to be examined in detail rather than simply seeking to address all aspects in one go.

Our democracy is weak today because its burden is shared too narrowly. Let that burden be shared across persons and institutions in the way that the burdens of democracy are meant to be shared. And we will then see how antifragile democracy in Pakistan can be.

Published in The Express Tribune, July 3rd, 2012.