Feisal Naqvi

Archive for October, 2012|Monthly archive page

Thomas N’Kono and the significance of judicial activism

In Uncategorized on October 5, 2012 at 10:15 am

Judicial activism is not a sign that the rule of law has finally arrived in Pakistan. Instead, judicial activism is a sign that we have failed to establish the rule of law.

Let me begin by saying that there is nothing inherently wrong withjudicial activism. I have no problem with the Supreme Court roasting scoundrels. Yes, I do disagree with some of the decisions the Court has taken but this column isn’t about the pros and cons of judicial activism. It is about the conclusions one should draw regarding a legal system dependent on judicial activism.

But let’s move away from high theory for a moment and go back to the 1990 football World Cup and the Indomitable Lions of Cameroon. I remember that team for two reasons. First, the goal-striking ability of Roger Milla, the Cameroonian forward, who had this endearing habit of celebrating his goals with a full-on hip-swinging, bum-wiggling dance performed at the corner of the field. Second, the goal-keeping of Thomas N’Kono, still regarded by many as the greatest goal-keeper produced by Africa.

Back in 1990, African football was regarded a joke by the cognoscenti. Cameroon’s performance changed all that. When Cameroon reached the quarter-finals of the 1990 World Cup, they were the first African team to make it that far. In the quarter-final, Milla entered the game to find Cameroon trailing 1-0 to England and promptly led his team to a 2-1 lead. The problem was that between Milla and N’Kono, there was no one else of equivalent quality. For most of the game, that was enough: wave after wave of England attacks only resulted in N’Kono turning back shot after shot. Ultimately, though, England were too good, with Gary Lineker converting a penalty in the 105th minute for a 3-2 win. And so, what I remember of that match, is N’Kono with his head on the ground, his titanic effort having gone to waste.

Simply put, here’s the point: notwithstanding the presence of N’Kono, Cameroon didn’t have much of a defence. A good defence requires more than a good goalkeeper: it requires a team effort in which everybody collaborates, and in which the back four make damn sure that the opposition forwards get as few chances to score as possible. A goalkeeper who routinely produces the miraculous to prevent the opposition from scoring is not a sign that the defence is working: it is a sign that the defence is failing.

The same principle applies to matters of state. You cannot point to an active judiciary as a sign that the rule of law is in good shape. Like the goalkeeper in a football, the judiciary is simply the last line of defence. The fact that our Supreme Court has taken judicial activism to new heights is not a sign that respect for, and enforcement of, the law has become more widespread. Instead, it simply shows that the remaining organs of the state charged with ensuring the rule of law are failing to do their job. Judicial activism doesn’t signal a healthy body politic; it is a sign that the body politic is resorting to desperate measures to keep itself alive.

Let me make a further point as well: the most enticing and presumably rewarding part of a judge’s job is the fact that you can simply reach out and make someone’s life better by giving them justice. I, therefore, completely understand the imperative that drives judges to try and make things ‘just’ on a case-by-case basis. The point though is that judges are part of a ‘justice system’, they are not ‘the system’ in themselves. What is surprising, and no less disconcerting, is the complete failure of the relevant bodies to grapple with this fact.

The institution most directly charged with examining and reforming the justice system is the National Judicial Policy Making Committee (NJPMC). In 2009, the NJPMC came up with a National Judicial Policy (which has been revised and updated from time to time). The judicial policy, unfortunately, sticks generally to the most basic level of exhortation as if pushing the lower judiciary into moving faster can solve all problems. The recommendations on “expeditious disposal of cases” thus provide that bail applications shall be decided by magistrates within seven days by high courts. Similarly, the policy provides that writ petitions dealing with student admissions should be decided within 60 days and that stay matters should be adjudicated within 15 days of grant of an interim injunction.

I have two points to make here. The first is that the justice system needs to be analysed to understand the basis for disputes within our society and whether those disputes are, in effect, avoidable. For example, rent disputes account for a significant proportion of civil disputes in Sindh because the rent law there is asinine. Punjab, however, has changed its rent laws and my understanding is that the number of rent cases has also declined. If that is correct, the reforms in Punjab should be extended to Sindh. Similarly, other statutes need to be examined to determine whether they are, in effect, encouraging litigation.

The second point is that even within the parameters of the legal system as it exists, the justice system — as a whole — needs to be made considerably more efficient so as to avoid wastage of time. To take the simplest of examples, a tremendous amount of time gets wasted in court because lawyers are busy elsewhere. The process of dealing with adjournments can safely be outsourced to the parties themselves and, where they disagree, to subordinate officials. It is not necessary for high court judges to deal with all adjournment requests during court timings.

This is not the occasion to examine judicial reform proposals in detail. All I want to say is that we need a system where the Supreme Court isn’t constantly required to save the day. This requires reforms in every branch, and at every level, of government. And within the judicial branch itself, the Supreme Court needs to worry more about systemic reform than the satisfying, but essentially limited, task of placing heads on a pike.

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

Choosing dishonour and getting war

In Uncategorized on October 5, 2012 at 10:15 am

During the first few months of World War II, the British Government produced a propaganda poster that said in large type “KEEP CALM AND CARRY ON”. Ever since, that particular poster has become an icon, giving rise to many variations (eg, “Keep calm and eat aam”). The one constant factor in all the variations and parodies is the “keep calm” part. This is because nobody doubts that it is the job of a government to tell its people to calm down; nobody, that is, except the buffoons running this country.

Let’s just rewind a bit. A malicious person produced a video deliberately intended to inflame the passions of Muslims. Since the video was truly terrible, nobody noticed it. An Egyptian Islamic channel was so outraged by this lack of outrage that it first dubbed the video into Arabic and then broadcast it. The immediate result of this was an attack on the US consulate in Ben Ghazi, the death of the US ambassador to Libya and an attack on the US embassy in Egypt. We then followed suit with politician after politician, mullah after mullah, anchor after anchor, all jumping aboard the indignation bandwagon.

Faced with this rising tide of anger, the PPP did what the PPP normally does — run away. The prime minister announced that September 21 would be a public holiday to commemorate the love we feel for the Holy Prophet (pbuh). Then, having taken care of all likely complications, the PPP brain trust decided to chill out.

On September 20, the diplomatic enclave in Islamabad was attacked by protesters trying to reach the US embassy. For a few hours, it was touch and go but eventually the police prevailed. In the meantime, the 111 Brigade of the army had been called in but was unable to assist as it was stuck in traffic. No explanation was ever given by the federal government as to why it had failed to anticipate the scale of the protests.

Friday dawned on the deserted streets of major cities in Pakistan as a scene from a zombie movie. Those poor souls unfortunate enough to own businesses on major roads had plastered their offices with banners voicing their support for the protest and against the film as if that would somehow inoculate their property against destruction. Some escaped. But some didn’t.

From the time when Friday prayers ended till when the sun finally went down, television screens filled with scenes of mayhem. By nightfall, five cinemas had been torched in Karachi, multiple CNG and petrol stations had been burnt, petrol bombs had been chucked at the US consulate in Lahore and 19 people were dead. Three of the dead were policemen. One of the three dead policemen had reportedly been stoned to death by an enraged mob.

The entire day, the federal government was conspicuous only by its absence. Oh wait, I’m wrong. The PM addressed a gathering of politicians at the PM Secretariat and asked the Western world to make blasphemy a crime. However, there was no assurance by the government at any point that it would try to protect the lives and property of innocent people. Instead, the only sense of occasion was shown by the dashing Interior Minister who, possibly having confused Youm-e-Ishq-e-Rasool with Dress Up for Work Day, paraded before the cameras in a particularly fetching shiny silver waistcoat. Politics, of course, abhors a vacuum and hence the airwaves were filled with the hysterical keening of anchors, all of them shocked, absolutely shocked, to see that such a wonderful idea was being marred by violence.

Let me try to pull together the threads of my outrage. There is a difference between a government and an opposition party. The PPP cannot continue to play at being in power as if it was a six-year-old playing with the steering wheel of daddy’s car. Being in power does not only mean the freedom to rape this country’s exchequer. Being in power means the responsibility to exercise executive authority for the benefit of the citizenry.

The single most fundamental function of a government is to protect its citizens so that they live without the fear of violence to them or to their property. By that token, this PPP government is not just a failure but an unmitigated disaster. The federal government didn’t just fail to stop panic amongst the citizenry: it encouraged the panic. Giving people a day off to protest was, simply put, the equivalent of throwing gasoline on a fire.

Look, no one is trying to defend the video. Even Hillary Clinton has called it “disgusting”. But there isn’t just a fine line between condemning blasphemy and endorsing general chaos, there is a gaping chasm. Every single sentient being knows that it is more important for a government — repeat, a goddamn government — to protect the lives and property of its citizens than to join the ranks of the howling multitudes. It was, therefore, the obligation of the government to have ensured that the protests remained peaceful or at least to have tried its best. And it failed that obligation.

To take but one example, the federal government shut down all mobile communications in the major cities on Friday. This was allegedly done for security reasons. For all I know, this may have been justifiable (though as noted by one NGO, there are better options available). What I do know is that nobody justified it. Nobody addressed the inconvenienced 50 million people and said sorry to them. Nobody pointed out that our enemies are depraved enough to attack other Muslims demonstrating their love for the Holy Prophet (pbuh). Instead, the country was just left to drift.

In the run-up to World War II, the one voice most consistently correct about the dangers of appeasement was that of Winston Churchill. When Chamberlain came back from Munich after having betrayed the Czechs to Hitler, Churchill’s judgment was simple. “You were given the choice between war and dishonour,” he said. “You chose dishonour and you will have war.”

The PPP government had a choice between dishonour and fighting back. It chose dishonour and it was given war. Some things don’t change.

Published in The Express Tribune, September 25th, 2012.

Law and Order

In Uncategorized on October 5, 2012 at 10:14 am

“Law and Order” was the single longest running crime drama in the history of American television. When it was finally cancelled in 2010, it left behind not only legions of disappointed fans, like myself, but also a template for all future such serials. It is a template from which our politicians and our policymakers can learn much.

Each episode of  “Law and Order” thus consisted of two parts; the “order” part in which a crime would be investigated and a “law” part in which the crime would be prosecuted. The message that this structure sent was in fact made very clear by the intro to each episode: “In the criminal justice system, the people are represented by two separate yet equally important groups: the police, who investigate crime; and the district attorneys, who prosecute the offenders. These are their stories.”

I was reminded of this wonderful television series recently by a report titled “Stabilising Pakistan through Police Reform” (Hassan Abbas ed.) issued by the Asia Society.

The Asia Society report is an ambitious and generally successful effort to provide an overview of the major issues in the area of police reform. The 25 authors whose contributions make up the report are sub-divided into five different topics so that the reader is provided with a comprehensive picture of a large number of topics, ranging from the role of the private sector and NGOs to accounts of police reform in Balochistan and Khyber Pakhtunkhwa to analyses of police issues and women’s rights.

Reading through the report is thus a wonderful introduction for the general reader. It is, for example, important that people learn the Police Act of 1861 deliberately set out to create a paramilitary force on the basis of the Royal Irish Constabulary rather than a modern investigative, service-oriented force. Similarly, I found it heartening that so many authors recognised that the Police Order, 2002 was a brave and well-meaning effort that got scuttled by political cowardice and vested interests.

At the same time, I do wish the report had been more comprehensive. As the intro to “Law and Order” notes, the criminal justice system has “two separate yet equally important” parts — the police, who investigate and the lawyers, who prosecute. The Asia Society really only deals with the first half of that equation. Thus, one could implement each and every recommendation of the report and while it would undoubtedly produce a better police system and one more capable of identifying criminals, it most likely would not produce a system significantly better at convicting criminals.

The simple fact is that the criminal justice system is just that — a system. It cannot be reduced to the sum of its parts, let alone one part of that whole system. As such, if the system is to be reformed, one has to look at the entire system and not just isolated elements.

Let me elaborate. As some of the scholars in the Asia Society report explain, the British decision to opt for a paramilitary police force was driven primarily by colonial insecurity. In other words, the 1857 War of Independence convinced the British that (a) there were sizable numbers of Indians who did not regard British rule as an unmitigated blessing; (b) those restless natives needed to be thrashed into submission at regular intervals; and (c) a paramilitary police force was an efficient way of thrashing unhappy subjects into silence. The British knew full well even back in 1861 that the police force being set up would not be very good at solving crime. And while they tried to mitigate this through a different police system in the largest cities, they were content with this compromise so far as the majority of their territory was concerned.

My point is that there is a ‘deep structure’ buried in the other elements of the criminal justice system, just like there is in thePolice Act of 1861. Thus, the design of the Criminal Procedure Code, 1898 reflects not just the fact that it was enacted by the British at a time when they ruled India but also the racial divisions of that time as present within the administrative structure of the British Empire. Or to be less polite, the criminal justice system concentrated power in locations where the personnel were generally white (higher judiciary, district administration officers) and took away powers from people who were generally brown (police, subordinate judiciary).

Take a look, for example, at how our system handles bail and FIR matters.

In modern Western systems, the police have tremendous discretion on how to deal with criminal complaints, including deciding who to arrest, who to release, who to investigate and who to try. Our system, however, robs the police of this discretion.

In brief, the law requires the police to register every report of every cognisable crime in the form of an FIR. However, once an FIR is recorded, the standard practice is for the police to arrest everybody named in the FIR because failure to arrest someone named in an FIR is normally seen as good grounds for judicial interference. The police are then also required to investigate every named person and while again, they have the discretion to drop charges, the standard practice is for the investigative report (challan) to be lodged in court and for the court to then determine the guilt or innocence of everybody.

To summarise, modern Western systems are set up so that the police and the prosecution decide who to arrest, who to release and who to subject to trial. In our case, the judiciary makes most of these decisions. This is because historically the judiciary was white (and presumptively smart) while the police were brown (and presumptively stupid).

My further point is that these systems — repeat, systems — need to be rethought. Currently, we are trying to beat 21st century terrorists with a 19th century criminal justice system. It’s the equivalent of trying to stop a high-rise fire with a bucket of sand. And if we don’t figure out how to reform our systems, we will soon learn how ineffective that approach can be.

Published in The Express Tribune, September 18th, 2012. 

The abyss stares back

In Uncategorized on October 5, 2012 at 10:13 am

What do you do when you look in the mirror and get scared?

Between the Rimsha Masih case and the recent rise in sectarian killings, Pakistan has been forced to confront its dark side in a more concerted fashion than ever before. What we see is scary. We are a nation increasingly at war with ourselves. And we’re losing.

Till date, the standard response of the liberal has been to respond with an invocation of Jinnah’s famous speech to the Constituent Assembly. You know, the one which includes the famous line about being free to go to your temples and your churches.

I have a question here. Is that all we have? One speech by one guy, 65 years ago? Is that the entirety of the foundation on which our commitment to freedom of religion rests? Because if that is the case, we are in bigger trouble than we know.

Let me go further. We need to believe in freedom of religion not because Jinnah said so but because it is the right thing to do. What Jinnah said six plus decades ago has nothing to do with anything.

Before everybody reacts in shock and horror, let me try to explain my heresy.

I yield to no person in my admiration for the Quaid. But Jinnah, above all others, would have been horrified by his deification. Jinnah was a lawyer, one of the greatest in a continent full of litigators. As many commentators have noted, Jinnah was famed for his principles and his integrity. But what made him great was his dedication to those principles. To respect those principles because he believed in them is to put the cart before the horse.

The logical response to my objection is that I am being unnecessarily finicky. Given our current predicament, the argument is that we need people to believe in religious liberties. Who cares why they believe, so long as they believe? For the average Pakistani, Jinnah is more than a leader and whatever can be associated with him stands sanctified. Why not then use popular veneration for Jinnah to buttress the right cause?

The problem with this approach is that it is both cowardly and ineffectual. It is cowardly because it hides behind the mantle of a revered leader to advance its arguments. It’s the equivalent of arguing that the chicken should be our national symbol because the Quaid was fond of KFC.

There is a further problem in personalising ethical issues. Moving the debate from what we should believe in to what our leaders have believed only changes the dispute from a war of ideas to a war of biographies. All that happens then is that history gets selectively rewritten so that Jinnah the secularist, Jinnah the champion of minority rights gets reborn as Jinnah the patron of obscurantism.

The best example of this rewriting of history comes from a recent column by Nadeem Farooq Paracha titled “Jinnah rebranded?” (Dawn, August 26). In his column, Paracha mentions a story about a student who attacked a procession of Shias. When that young man was told that Jinnah, the founder of Pakistan, was a Shia, he denied it vociferously. “Jinnah wasn’t the founder of Pakistan. Quaid-e-Azam was. And Quaid-e-Azam was Sunni.”

Splitting the Jinnah and the Quaid into two different people is, perhaps, the most schizophrenic response I’ve ever seen. But the attempt to reinvent Jinnah as a fundamentalist has a distinguished pedigree. General Ziaul Haq once announced that he had access to a secret diary in which Jinnah had confided his desire for an Islamic state. And General Zia’s favourite legal adviser, Sharifuddin Pirzada, has also parlayed his association with Jinnah into the claim that theQuaid wanted an Islamic state.

Part of the problem is that the evidence is ambiguous. As detailed by Pervez Hoodbhoy, Jinnah said all sorts of things to all sorts of people. That, by itself, is not surprising. The struggle for Pakistan was a political struggle and like all politicians, Jinnah promised everything to everybody; or, at the very least, said lots of things that can certainly be construed in many different ways.

My point though is different. Quaid-e-Azam Mohammad Ali Jinnah may have been a closet secularist or a closet fundamentalist. But the sovereign state of Pakistan is more than Jinnah’s closet. It is the homeland of 180 million people, each of whom has an opinion as to how this country should be run. It is their elected representatives who are supreme, not any one person.

The further point is that relying on the Quaid’s charisma to sell human rights is a fool’s game. If we are to win against the kind of people who are out there beheading our soldiers, we need to sell a picture of this country that treats it as more than the testamentary gift of Mr Jinnah.

Treating this country as Jinnah’s bequest infantilises Pakistanis and justifies a paternalistic state. What it says to the voters is that this is the Quaid’s country, you just happen to live in it. What it says to the establishment is that they are the custodians of a particular vision and that the wishes of the voters count for naught. That is hardly the basis of a free state.

Pakistan is in the middle of a mortal struggle. On the one hand, we have a flawed and enfeebled state, riven with corruption, democratic only in name. On the other hand, we have the apostles of virtue, selling a simple vision in which all our problems will be solved if only we let them drag us back a millennium.

US Judge Learned Hand (1872-1961) once famously noted that, “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it”. This country can only survive as a free republic if our people accept in their hearts and minds that freedom of religion is a right they need to preserve. Treating them like children doesn’t help that cause.

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