Feisal Naqvi

Archive for January, 2013|Monthly archive page

Killing another golden goose

In Uncategorized on January 24, 2013 at 11:23 am

On January 7, 2013, the Supreme Court of Pakistan released the short order in the Reko Diq case. To the surprise of very few, the Court found against the respondent Tethyan Copper Company (TCC) and held that the 1993 joint venture agreement between the Government of Balochistan and the predecessors in interest of TCC was not valid.

Since the Supreme Court (SC) has yet to release its detailed reasons, speculation and criticism of the short order may appear unwarranted. At the same time, I still think there is much to be said for sifting through the entrails of the short order. To digress for a moment, there is a famous Sherlock Holmes story in which, he explains to Dr Watson the significance of the dog that did not bark. Similarly, what makes the short order interesting is not because of what it says but because of what it doesn’t say.

Lawyers and courts draw a distinction between different kinds of wrongdoing and, in particular, between misfeasance and malfeasance. Misfeasance means that someone has acted in a manner contrary to that prescribed by law, for example, by signing a contract without obtaining board approval. Malfeasance means deliberate misfeasance. For example, a government servant who sells state secrets for money has committed malfeasance.

In the case of the short order, what I do not see is any discussion of malfeasance. Instead, the short order merely says that the 1993 joint venture agreement (and subsequent agreements) was ‘illegal’ without clarifying whether the illegality was a product of simple misfeasance or of malfeasance (such as bribery). Given the time and effort devoted to this issue, my tentative conclusion is that the SC did not find any malfeasance. If so, we have a problem.

Before going further, let’s review the facts. In 1993, the Government of Balochistan (GoB) entered into a JV with BHP Billiton. In 2000, the JV was amended to allow BHP Billiton to sell out (which it did in 2002). Between 1993 and 2011, the JV spent approximately $440 million in exploring parts of Balochistan to find massive commercially exploitable deposits of copper and gold. In 2011, the JV applied to convert its exploration licence into a mining lease. In 2013, the SC has held that the JV has no rights whatsoever, apparently without finding any malfeasance on the part of the foreign investors.

If the above factual summary is correct, then the inescapable conclusion is that the foreign investors have been penalised for the incompetence of the GoB. In other words, the foreign investors have been told that their agreement — and their investment of close to half a billion dollars — is worthless not because they did anything wrong, but because the Government of Balochistan did not follow the correct protocols. I don’t find that fair.

The standard legal response to a Reko Diq type problem is that there is no estoppel against law. In other words, if the law prescribes a particular way of doing something, and if that method has not been followed, then no matter what the consequences, the step taken remains illegal and can be set aside at any point in time.

I appreciate the sentiment that the illegal cannot be treated as the legal merely because of the passage of time, but this is certainly not the law when it comes to other areas. For example, in the case of private contracts, the ‘indoor management’ rule provides that companies cannot wriggle out of their agreements by citing non-compliance with internal procedures. Similarly, the Limitation Act of 1908 prescribes different time periods after which civil actions are not maintainable. You cannot, for example, sue to enforce a contract more than three years after you become aware of its breach.

My view is thus that the ‘no estoppel against law’ approach is unfair because it shifts the burden of legality onto private parties. In other words, if I am contemplating a commercial transaction with a government entity, it is now my responsibility to ensure that each and every ‘t’ is crossed and each and every ‘i’ is dotted. I see no reason why the government may be the beneficiary of its own incompetence.

More importantly, this ‘zero-tolerance’ approach is dangerous because it makes investment in Pakistan an extremely dicey business. If hundreds of millions of dollars of investment can be thrown into jeopardy through the autopsy of a 20-year-old agreement, who is ever going to bother investing in Pakistan? This particular case was already marred by the suspicion that the Supreme Court was catering to media plaudits and jingoistic nationalism. It was, therefore, particularly necessary for the SC to provide a reasoned and fair basis for interfering with investor rights. So far, at least, I have not seen any such basis.

In my view, the court should have applied the ‘bona fide purchaser’ rule in the Transfer of Property Act of 1882. What that provides is that (1) normally a buyer of land only gets as good a title as the seller actually had; but (2) there is an exception for purchasers in good faith. In other words, if I buy property in good faith from someone who looks like they actually have the title to the land in question, then the law will deem me to be the proper owner even if it turns out that the seller was a complete fraud.

Applying that approach to Reko Diq would require the SC not only to check if rules were violated but also whether the foreign investors were aware — or should have been aware — that rules were not being followed. If there is any basis to conclude that the investors did not act in good faith, well and good. But in the absence of any such conclusion, the investors would be left alone.

Pakistanis are fond of clichés, none more so than the parable of the golden goose. If the detailed reasoning of the Reko Diq decision does not explain why it was equitable to rob foreign investors of their contractual rights, the rest of the world will only conclude that the foreign investors were wronged. And I, for one, will agree with them.

Published in The Express Tribune, January 22nd, 2013.

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The martyrs of Alamdaar Road

In Uncategorized on January 24, 2013 at 11:22 am

A single death is a tragedy. A million deaths is a statistic.

Stalin may or may not have said those words but he was certainly on to something. Revolutions require more than anger. They require symbols, images around which peoples’ thoughts can gather and coalesce so that the abstraction of a million deaths can become a reality.

Shias know this better than most because Shia’ism has only survived through the power of images and stories. Every Muslim can picture the events of Karbala in part because the image of Imam Hussain (RA) and his 72 companions standing firm against the might of Yazid’s army is so potent. It is these images which get revisited every Muharram: the dark and thirsty nights; the martyrdom of Hazrat Qasim, trampled by the horses of Yazid’s army; Hazrat Ali Asghar, the innocent baby pierced by an arrow; Bibi Sakina, crying as her father’s steed returns riderless to the camp; women being led through the bazaars of Damascus with their heads uncovered; Bibi Zainab defiantly lecturing Yazid before his own court.

To these images, we can now add a new tableau: the bodies of 86 people killed on Alamdaar road, their coffins placed on the open street, their mourning families refusing to bury the bodies till they get justice.

Even the name ‘Alamdaar’ is important here. The word ‘Alam’ refers to the ceremonial flag or standard carried out into battle. Alamdaar means the “standard-bearer” or the person given the responsibility of carrying the flag into battle. As in all armies, the position of flag-bearer was one of incredible honour. In the case of Imam Hussain, the ‘Alamdaar’ was Hazrat Abbas, his half-brother.

Shias believe that Hazrat Abbas died while trying to get water for Bibi Sakina, Imam Hussain’s young daughter and they revere his memory as the most faithful and courageous of Imam Hussain’s companions. That is why Shia processions always have a black flag carried in them, because that flag is a symbol of the flag of Imam Hussain and, by extension, a symbol of Hazrat Abbas (the Alamdaar). The protest on Alamdaar Road therefore not only honours the martyrs of January 10 but also references the martyrs of the past. At least for Shias, this protest is a generational call to arms. All of Shia history stems from a single deliberate act of martyrdom in the face of overwhelming brutal force. By refusing to bury their dead, the Shias of Alamdaar Road have connected their suffering with the martyrs whom they revere and the effect is profound. I like to think of myself as about as sceptical as is humanly possible. But the mourners of Alamdaar Road have managed to trump all of that.

The importance of the Alamdaar Road protests doesn’t lie in their effect on other Shias though, but on the larger national consciousness. By refusing to bury their dead, the Shias of Quetta have managed — for once — to break through our national apathy. It is a part of our culture to bury our dead immediately, just like it is a part of our culture (especially in Balochistan) for women to not be seen in public. When the ordinary Pakistani turns on his TV and sees a community united in grief, when he sees row upon row of grieving women refusing to bury and yet simultaneously honouring the serried ranks of their martyrs, that Pakistani understands in a more visceral way than ever before that something has gonefundamentally and horribly wrong in the Land of the Pure.

Please note that I am making no prediction that this massacre marks a turning point in the life of this country. More than 400 Shias were killed in sectarian killings last year and this year looks set to eclipse that mark. But, there are some encouraging signs.

The first encouraging sign is the decision by Imran Khan to not only go and participate in the protests but to unequivocally condemn the Lashkar-e-Jhangvi. This simple act of courage completely escaped not only the PPP, which remained mumbling and fumbling at the centre, but also the PML-N. Lest we forget, both parties are equally complicit in the murder of Shias. The PPP is responsible because it has chosen to pursue corruption at any expense while not giving a damn about issue of governance and security. The PML-N is responsible because it has taken the lead role in the ‘mainstreaming of hate’ by entering into electoral alliances with parties openly identified with sectarian hate. A third responsible party is the army. For at least the past two decades, the faujis have chosen to act through militant proxies for the sake of supposedly greater strategic gains while turning a blind eye to the sectarian havoc spread by those proxies. And as for the religious parties, the less said about them the better.

The second encouraging sign is the spontaneous appearance of protests across the country. From Quetta to Karachi to Islamabad to Lahore, people have been gathering. At the beginning, the protests were small. But they are continuing. And they are spreading.

You may say that a few hundred or even a few thousand protesters will have no effect. But the important aspect of the protests is that they expose our political parties. It is an open secret that the PML-N has been flirting with sectarian parties. Till date, that flirtation was justified on practical grounds. Trust us, was the argument: once we get power at the national level, then we’ll take on the killers. That hypocrisy now stands exposed. Whether or not the hypocrisy ends is up to the PML-N. But let me tell the Sharif brothers that everybody is now watching a lot more closely than before.

Popular movements are about an idea catching fire in the minds of the masses. Two years ago, a fruit-seller in Tunisia set the entire Arab World on fire when he burnt himself alive in protest. I don’t know if the martyrs of Alamdaar Road will change the course of this country. But along with other Pakistanis, I stand with my head bowed in grief at their sacrifice. Dear God, let it not be in vain.

Published in The Express Tribune, January 15th, 2013.

The truth about violence

In Uncategorized on January 24, 2013 at 11:21 am

The year 2012 was of extraordinary violence, not just in terms of the number of casualties but also in terms of the frequency of violent attacks. According to Wikipedia’s entry for “Terrorist incidents in Pakistan in 2012”, there were a total of around 212 separate incidents which killed approximately 3,700 people. And that does not take into account either drone attacks or targeted killings in Karachi!

Just take a minute to think about those numbers. What they mean is that it was statistically abnormal for Pakistanis to enjoy a day without terror. During the Blitz, the Luftwaffe bombed London 71 times over 267 days, or about once every four days. In 2012, Pakistanis were attacked close to two days out of every three.

The standard wisdom in Pakistan is that we are victims of terrorism and that what we need to do is a better job of countering terror. The standard wisdom is wrong. What we are suffering is an insurgency by people using terror as a weapon. What we need to do is a better job of counter-insurgency.

David Kilcullen provides a summary of the differences between terrorism and insurgency in “Countering Global Insurgency”. In brief, a terrorist is seen as an unrepresentative aberration while an insurgent represents deeper issues in society; terrorists are psychopaths, insurgents use violence as part of a society; terrorism is a law-enforcement problem, insurgency is a governance problem.

Let me try to put the above points in the context of Pakistan. We think of the Tehreek-e-Taliban Pakistan (TTP) as terrorists, not as insurgents. We think of them as sick, demented individuals who “cannot be Muslims” because of the evil they wreak upon our society. We do not think of them as politicians with a strategy. And that is where we go wrong.

The fundamental truth about counter-insurgency is that it is a competition for governance. In the words of Bernard Fall, “a government that is losing to an insurgency isn’t being out-fought, it’s being out-governed”.

The consequence of this insight is that we cannot think of the TTP either as a mad bunch of psychopaths (the standard liberal trope) or as an extraneous problem foisted upon us by Western imperialism in Afghanistan (the Imran Khan position). The truth is that the TTP are neither loonies nor freedom fighters; they are political adventurists exploiting the failure of our governing structures.

There is a further consequence. If you think the TTP are psychopaths, then the remedy is to kill them. If you think the TTP are a consequence of our poor alliances, then the remedy is to disengage from those alliances and let the tribals alone. But from a counter-insurgency perspective, both of those options are wrong.

The ‘kill them all’ approach is insufficient because a) eradicating the ideological basis for jihadism is not feasible; b) military operations cannot — and should not — last forever; and c) so long as the virus remains alive, the conditions exploited by the TTP in the tribal areas will always remain open to be exploited once military operations cease.

Similarly, the Imran Khan approach is wrong because it both misunderstands the nature of  ‘support’ for the TTP as well as the extent to which the TTP is driven by the war in Afghanistan.

To explain, Imran Khan assumes that the TTP are strong in the tribal areas because people support them. This actually places the cart before the horse: as explained by Kilcullen, “insurgents aren’t strongest where people support them: rather, people support them where they are the strongest”.

That conclusion may seem counter-intuitive but it actually follows from a very simple insight: the truth about violence is that it works. Beat a dog often enough and it will slink away in fear rather than attack you. Threaten someone’s life and the odds are that he will shut up. Kill enough people and the rest will obey. Or, in Kilcullen’s words, “people will do almost anything, and support almost anyone, to reduce fear and uncertainty”.

Second, Imran Khan is wrong in assuming that removing Pakistani support for the US in Afghanistan will automatically defang the TTP. Again, as noted by Kilcullen, insurgent theatres can become “self-sustaining” if given enough time and energy. In our case, the TTP reached ‘critical mass’ because our foreign policy wizards in the GHQ deliberately cultivated the precursors of the TTP. Now, even if the US quits Afghanistan and even if Barack Obama apologises on bended knee to Mullah Omar, the TTP will not be satisfied. Like all insurgents, what they want is power.

How then does one fight an insurgency? The short (and flippant) answer is, “with great difficulty”. Somewhat less flippantly, the answer is that one needs to have a comprehensive strategy, one which combines the hard task of finding and killing terrorists via military and law-enforcement action with the soft task of good governance. This, in turn, means that counter-insurgency cannot be left to the military. To repeat, counter-insurgency is a competition for governance. And there is no reason to believe that our military will prove any better in governing the tribal areas than it has in governing the rest of Pakistan.

The one thing I do know is that we cannot defeat the TTP by isolating the tribal areas; that is an approach which has been tried and failed. Instead, we must integrate the tribal areas into Pakistan. People who live there must be given access to the full range of human rights.

Second, we cannot continue to shrug our shoulders when it comes to corruption and misgovernance. Governmental incompetence isn’t something that can be substituted by private initiative, like replacing Wapda with a private genset. Instead, it is a disease that threatens the integrity of the state.

Lest I be misunderstood, I am not — repeat NOT — trying to justify a Bangladesh-style technocratic coup. As I have repeatedly written, we have no option but to continue with democracy. What I am saying though is that criminal incompetence of the sort preferred by the current PPP regime is a recipe for national suicide.

Pakistanis will hopefully soon have the chance to exercise our right to vote. For all of our sakes, we had better use that right wisely.

Published in The Express Tribune, January 8th, 2013.

The media, the judiciary and, damned if I know

In Uncategorized on January 1, 2013 at 3:52 am

The media. The judiciary. And, damned if I know.

In case you’re wondering, the preceding paragraph is the answer to the question, “what makes you optimistic about Pakistan?”

You may ask what the media can do against all the forces combining to hurt this country. Is it not foolish to rest our hopes in freedom of the press when our country is illiterate, bitterly divided and under attack?

The answer to that question is, no. We may not be a nation of geniuses. But we are not a nation of dunces either. And if the rest of the world can manage to deal with the demands of democracy, so can we.

Let me elaborate. Like evolution, democracy works through an incremental process of trial and error. In the case of evolution, the dumb and the slow die out because they become food for the smart and the quick. In the case of democracy, the incompetent and the corrupt get voted out. In each case, there is an accountability mechanism integral to the effectiveness of the process.

For many years, Pakistan’s political process lacked any accountability mechanism whatsoever. The press was toothless, the judiciary was subservient to the establishment and no government ever lasted long enough to worry about losing elections. All of that has now changed.

A mere decade ago, Pakistan had a handful of newspapers, no independent television channels and certainly no private news shows; now, we have more than 50. Each channel gets to select its own agenda, its own guests and its own limits of polite discourse. Yes, the media is a raucous, ravening beast. But, at the same time, it is also fiercely protective of its independence. Within that independence lies freedom of speech. Within freedom of speech lies freedom of thought. And within freedom of thought lies our salvation.

Do I exaggerate? Again, I don’t think so.

Many moons ago, one of my first assignments as a subeditor for The Nation was an APPstory about how James Bond liked his orange juice shaken not stirred. That story was duly edited and duly published with nary a response from the reading public. If anyone was to publish something even remotely as asinine in today’s Pakistan, they would get laughed out of the country. Yes, there are plenty of subjects which remain essentially off-limits in today’s mainstream media — the blasphemy law and the persecution of Ahmadis to name just two — but the point is that there is more to the media than the big name television channels. There are mainstream channels, regional channels, city channels, language-based channels and if those are not enough for you, there is the whole world of international media available through cable and beyond that, the Internet. Unlike yesterday’s Pakistan, anybody who wants to find out any information has the option of doing so. And unlike yesterday’s Pakistan, anybody who wants to speak out is free to do so as well.

But what about the apostasy and blasphemy laws? How does one reconcile them with a vibrant and free media? The short answer is that one does not. At this point, the apostasy and blasphemy laws survive unchallenged because they are walled off from critical debate by the media itself — one prime example being Meher Bokhari’s poisonous and sanctimonious assault on the late Salmaan Taseer. What one needs to see is whether this exception becomes the rule in the future or whether the apostasy and blasphemy laws become subject to reasoned debate. The stakes, as always, are high. But, at least in my view, we already recognise freedom of speech as a superior value. Yes, the debates on blasphemy in Pakistan were, and are, very extremely delicately phrased. But those debates did take place. And the blasphemy and apostasy laws still get discussed. And so long as one can openly subject an argument to reasoned analysis, there is the hope of reform.

The counterpart to the bright light shone on our national foibles by the media is the newly energised and newly independent judiciary. Yes, the average man’s average experience of the law is still dispiriting. Yes, our judiciary has a tendency to go overboard as pointed out by all and sundry, including myself. At the same time, for every tale of the judiciary run amok, there are a hundred stories in which a runaway executive branch gets brought firmly and properly to heel. Most of those hundred stories never make it to the front page but that’s the nature of news. What is important is that for the first time in this country’s history, people in power know that their moves are subject to scrutiny and possible reversal. And, as Dr Samuel Johnson once famously noted, the prospect of being hanged focuses the mind wonderfully. I still wish the judiciary would curb its populist streak. But I would also not exchange this judiciary for any of its previous incarnations.

My final basis for optimism is less logical. This is a country that has been written off time and time again. It was never supposed to survive its birth. But it did. It was supposed to disintegrate after 1971. But it didn’t. It has been consigned to financial ruin so many times that there should be a special number in the Dewey System dedicated to “Pakistan, bankruptcy of”. And yet, it survives. Pakistan is a country that has been betrayed by its rulers time and time and time again. Democrats become dictators. Dictators become politicians. Socialists become plutocrats. And all of them — plus their benighted offspring — line their pockets as if descended from a particularly voracious breed of locusts. Yet, this country refuses to die.

I cannot rationally explain either why I care so much for this country or why it continues to stagger on. All I know is that I do and all I know is that it does. Based on that slender epistemic reed, I confidently predict that we are going to survive 2013 as well. And, on that cheery note, a Happy New Year to all of you.

Published in The Express Tribune, January 1st, 2013.