Feisal Naqvi

Archive for February, 2013|Monthly archive page

No time to surrender

In Uncategorized on February 20, 2013 at 4:30 am

A few days ago, 27 different political parties reached the common conclusion that the best way to deal with the Taliban was to negotiate with them. I have no words to describe mycontempt for the worthies who attended that conclave. But I am reminded of the words a law school friend of mine once used to address opposing counsel: “If you were on fire, I wouldn’t waste the piss to put you out.”

Let me concede that I appear increasingly to be in a minority. Apparently, the burden is now on warmongers like myself to justify our continued opposition to talks. This is my attempt to do so.

Let’s begin with the obvious questions: who are the Taliban? And what do they want?

The word ‘Taliban’ is the plural of the word ‘talib’ which, in turn, is an Arabic word that refers to a student. The term ‘Taliban’ in its current form was originally used to describe the seminary-educated followers of Mullah Omar when he swept to power in Afghanistan in 1994 and has subsequently been used ever since to describe both his followers, as well as people who believe in his particular vision of Islam.

In the particular context of Pakistan, the term ‘Taliban’ is a misnomer. This is because the Taliban proper (i.e., the militants who follow Mullah Omar and who oppose the US presence in Afghanistan) are an Afghan-oriented group interested in seeking power in Afghanistan. At the same time, there are multiple religiously motivated groups in Pakistan who seek to replicate the Taliban’s efforts in Pakistan, one of which is called the Tehreek-e-Taliban Pakistan (the ‘TTP’). If we are talking about negotiating with the Taliban in respect of areas within Pakistan, then it needs to be understood that we are talking about negotiating with the TTP and other similar organisations.

Second question: what do the TTP want? The short answer is that the TTP want power; that they want to do in Pakistan what the Taliban did in Afghanistan. The slightly longer answer is that they seek a Pakistan in which the only law is their interpretation of the Sharia, in which music, dancing and all forms of joy are banned, in which women are effectively enslaved, in which Shias are wajib ul qatal and in which the penalty for dissent is death.

On what basis then do we negotiate with the TTP? Unless negotiation means persuading the TTP to surrender, there are only two options. The first is that we compromise geographically and allow the TTP to take over power in certain areas. The second is that we revise the Constitution and the laws of this country. In each case, the quid pro quo would be for the TTP to demand no more.

The problem is that any such agreement with the TTP would be treasonous. And I use the word ‘treason’ with deliberation.

Article 5 of the Constitution provides first that “Loyalty to the State is the basic duty of every citizen” and second that “Obedience to the Constitution and law is the obligation of every citizen wherever he may be and of every other person for the time being within Pakistan”. If I have accurately described the agenda of the TTP, there is no possible negotiated result acceptable to them that will not result in disloyalty to the State and disobedience to the Constitution.

The TTP have made it abundantly clear that they do not accept the Constitution of Pakistan as legitimate. To give power to the TTP is to, therefore, concede that the state of Pakistan is fundamentally illegitimate. And any citizen of Pakistan who makes such a concession is committing treason: handing over Pakistani territory to the TTP is no different from handing over Pakistani territory to India.

In his column from a few days ago, Nadir Hassan referred to negotiations with the IRA, the Afghan Taliban and Palestine in order to contend that we should talk to the Pakistani Taliban. So far as I am concerned, this argument proves my point. If you believe that Pakistan’s claim to dominion over Fata is as bogus as Israel’s claim to Palestine, then please do talk to the TTP. But then recognise that you are also conceding the illegitimacy of the Pakistani state.

What then about the alternative? Why not jettison the Constitution in favour of the Holy Quran and Sunnah?

The short answer is that unless one is a moron (or an apologist for the TTP) one has to accept that there are multiple interpretations possible of what is permissible under Islam; which in turn begs the question of how one is to decide the correct interpretation; which is why we have a democracy; and, more importantly, which is why we have a Constitution. The media stars who hail the TTP would not last 24 hours under TTP rule. The fact that they know it and yet continue to peddle their rubbish is despicable.

Ah, you may say, but we are not talking about changing the Constitution for the whole country, just for Fata and other tribal areas. My question is why does that make a difference? Leaving aside the stupidity of believing that the TTP will be content with ruling just a small part of Pakistan, what part of throwing the population of Fata to the wolves is morally defensible? Please understand that the TTP do not represent the indigenous culture of Fata any more than Hitler represented the indigenous culture of Germany.

The only argument we are left with then is the necessity argument; that we are too dumb, too corrupt, too stupid and too confused to fight back and so we might as well surrender gracefully. My response to that is unprintable. If that is true of us then yes, we deserve to be ruled by the barbarian hordes. But it is not true. The only reason we do not respond is because the gentlemen running our country can’t be bothered to take time out from vandalising the exchequer.

Pakistan is in crisis today not because we lack capability but because our leaders lack faith. We may or may not find the will to defend ourselves. But I promise you that surrender is not the option.

Published in The Express Tribune, February 19th, 2013.

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Discretion and valour

In Uncategorized on February 20, 2013 at 4:29 am

The decision by the Supreme Court to order the registration of an FIR for blasphemy against Sherry Rehman has lead to much outrage and alarm amongst Pakistan’s small and perpetually beleaguered group of liberals. The alarm is justified. Frankly, so is the outrage.

Before I explain myself, a brief summary of the facts. Sherry Rehman appeared on television on January 19, 2011, in a show broadcast by Dunya TV from Islamabad. During that show she elaborated her views as to why the blasphemy laws of this country needed to be amended. Subsequently, a gentleman by the name of Muhammad Faheem Akhtar Gill saw the programme at his house in Multan. He came to the conclusion that Ms Rehman’s comments were tantamount to blasphemy and accordingly filed a complaint at a police station in Multan seeking the registration of a criminal case against Ms Rehman. The local police station refused to register the FIR on the grounds that the crime, if any, had occurred in Islamabad and that Mr Gill should therefore go to Islamabad to pursue his grievance. Both the sessions court (to whom Mr Gill first went) and the Lahore High Court at Multan (to whom Mr Gill appealed the decision of the sessions court) agreed with the local police. Mr Gill therefore took his grievance to the Supreme Court.

The main issue discussed by the Supreme Court in its order dated January 17, 2013, is that of territorial jurisdiction. In other words, the only question seriously examined by their Lordships was whether the FIR was to be filed at a police station in Multan or a police station in Islamabad. In this connection, their Lordships decided that the right analogy for determining jurisdiction in blasphemy cases was that of defamation. And the law provides that if a defamatory statement is reproduced or distributed in a particular city, then a criminal case for defamation can be filed in that city (even if the original statement was made elsewhere).

So far as black-letter law goes, there is nothing wrong with the order of the Supreme Court. On the other hand, so far as a basic understanding of today’s Pakistan is concerned, there is much to be worried about.

The first point to note is that while the Supreme Court may have reached the correct decision on merits, it is an elementary principle of natural justice that no one should be condemned unheard. In this case, the Supreme Court of Pakistan decided the issue of territorial jurisdiction without giving any notice to or ever hearing Ms Rehman. She was therefore condemned unheard.

The legal reply to Ms Rehman in this context would be that she has not been ‘condemned’, since the Supreme Court has only ordered the registration of a case against her, i.e., the initiation of investigative proceedings, not her conviction. However, this is where some knowledge of the world outside the four corners of a courtroom comes in useful. Ms Rehman now stands formally accused of blasphemy. Whether or not she is eventually acquitted is not her problem. Her problem is avoiding assassination by some self-appointed executioneras a consequence of the allegation levelled against her. Proceedings for blasphemy are therefore not like other criminal proceedings.

Let us also look beyond the facts of Ms Rehman’s case to the larger picture. As a consequence of the Supreme Court’s order, our current jurisprudential situation is that any person with access to a television can now impose a virtual death sentence on any person with an opinion. Even if one disregards the term ‘death sentence’ as mere hyperbole, the fact remains that any person watching a television talk show can now initiate criminal proceedings against a talk show participant merely because the person watching is aggrieved by something the participant said. In order to avoid arrest, the accused will most likely have to appear in criminal investigative proceedings in the place of residence of the aggrieved person. Similarly, the accused will also have to challenge those legal proceedings at the place of residence of the aggrieved person. Talk about a chilling effect on free speech!

Presumably, the defence from the Supreme Court is that courts don’t make law; they merely implement the wishes of the legislature. That argument would make some sense if our courts had shown any fealty to the concept of judicial restraint. However, over the past five years, the Supreme Court of Pakistan has effectively rewritten the jurisprudence of this country and chucked the concept of judicial restraint into the wastebin. Whether one agrees with that philosophy is another matter. But the fact remains that having rewritten the law books in the single-minded pursuit of effective justice, it ill behooves our judiciary to seek refuge in technicalities.

What then should the Supreme Court have done? So far as I can see, the Court had at least two other options. The first is that it could have ignored the issue and let it stay pending. Yes, I understand that justice delayed is justice denied. But if the Supreme Court lacked the desire to confront all the issues involved in the Sherry Rehman matter, then the least it could have done is to politely shove the file into a corner and let it stay there.

The second option for the Court was to have actually examined the issue of blasphemy in the context of other human rights. It doesn’t take a degree in rocket science to realise that the blasphemy law is being abused at present. It also doesn’t take a degree in rocket science to realise that our political representatives are far too scared to say much about the law. Frankly, given what happened to Salmaan Taseer, I don’t blame them. My point is instead that the reason why we have fundamental rights in the Constitution and the reason why we have an independent judiciary with security of tenure is so that our judges can examine our laws with a vision unclouded by populist pressures.

This Supreme Court has set a high standard for itself in relation to the protection of human rights. That standard has not been met in Sherry Rehman’s case. Sometimes discretion is not the better part of valour.

Published in The Express Tribune, February 5th, 2013.