Feisal Naqvi

Archive for February, 2016|Monthly archive page

Pindiots, pundits and the PSL

In Uncategorized on February 8, 2016 at 3:41 am

I am now at that blessed age where I am no longer expected to dance at family weddings. Nonetheless, as a semi-respectable elder, I am still expected to lend my gravitas to festive occasions by nodding gently while younger men behave as if they have discovered a tarantula in their pants.

Two nights ago, though, I was having a tough time keeping up my end of the bargain. The reason was that, instead of watching the dances, I was huddled over my phone watching a live stream of the Lahore-Karachi PSL match. Given the divided attention, disasters were bound to happen. In this case, I happened to use a Punjabi phrase reflecting doubts about somebody’s parentage just after being asked my opinion about a particular political leader.

Before I proceed further, let me just state for the record that swear words do not count in a sporting context. One cannot be fully engaged in a gladiatorial contest and yet be expected to only use parliamentary language.

I mention all of this because while I raved and ranted on Twitter about perfidious umpires, why Islamabad supporters should be called ‘Pindiots’ and the garbageous variety of left-arm spinners employed by the Lahore Qalandars, my friend Ejaz Haider pointed out that he had not expected me to take cricket, or at least the PSL, so seriously. My response to him was that while I may or may not take cricket that seriously, I certainly do take being a Lahori very seriously.

Now that the fever of (sporting) battle has waned, it is worth examining the PSL (and my response thereto) in a calmer frame of mind.

To begin with, let me first say that I take sports very seriously. I started my writing career as a sportswriter for my college paper. And as Chief Justice Earl Warren once explained as to why he read the sports section first, “The sports section records people’s accomplishments; the front page nothing but man’s failures.”

Yes, you may say, but is T20 cricket really a sport? Is it not, in the inimitably English phrase, just a hit and a giggle, flannelled fools entertaining crowds like jesters at a market fair?

Let me begin by conceding that the PSL version of cricket bears only a distant relationship to the sport once celebrated by writers like Neville Cardus and CLR James. Let me further concede that even so far as T20 tournaments go, the PSL is not really a match for the IPL. The IPL has more money, more glamour, more stars, more tamasha, more everything. But so what?

Let’s start by admitting that we need to stop mythologising sports. Yes, sports are a celebration of the human spirit and the limits of the human body. Yes, the Olympic motto – Faster, Higher, Stronger – still describes the fundamental spirit behind sports. But we need to stop thinking of sports in a time warp, as if athletic endeavour still consisted of bright young men racing around a Cambridge quad to the tune of a Vangelis soundtrack. Sports is now big business. More importantly, sports is now also entertainment. Most importantly, there is no shame in entertainment.

In any event, the fact that the PSL is not an equal to the IPL or the Big Bash doesn’t mean that it should be sneered at. That would be the equivalent of saying that Pakistan shouldn’t produce movies because Hollywood and Bollywood movies are bigger and better. I celebrate the PSL because the PSL is Pakistani and I celebrate Pakistan because it is mine. One can acknowledge flaws in Pakistan and still love it just like one can accept that a favourite child has flaws.

PSL detractors also need to understand that the PSL is by far the best thing that has happened to Pakistani cricket since the Sri Lankans got attacked and we became international pariahs. The PSL is giving international exposure to an entire new generation of Pakistani players. This is the biggest stage many of them have ever performed on and these are the highest standards to which many of them have ever been held accountable. The money that the PCB is making from this venture will go directly into improving domestic cricket. Who knows, we may even wind up with a middle order that does not regularly produce batting figures of 32-4!

But the reason I’m writing about the PSL is because the PSL is a lot bigger than cricket. As I argued in last week’s column, people need joy in their life. We live in an embattled state where we worry daily about the safety of our schools and our children. Cricket is not the answer to terrorism any more than fashion. But it certainly helps keep national spirits afloat. And that is reason enough for its existence.

The final part of the PSL, though, is that it is helping to construct a new national identity. We read every day about how alienated and bitter the residents of Balochistan are. I refuse to believe that the opening day success of the Quetta Gladiators over the Islamabad United (both terrible names, by the way) did not gladden the heart of every Baloch. Yes, that doesn’t make up for all the decades of oppression. But if there is to be an integration of Balochistan into the national mainstream, then this is a small but very hopeful step in the right direction.

Outside my legal practice and my family, my most regular interaction with people happens through Twitter. And what I saw on Twitter was that for a few days, Pakistanis had stopped obsessing about the follies and foibles of their favoured football clubs and instead were now obsessing about their local cricket team. Is it really that hard to see that if educated upper-class youth actually care deeply about something Pakistani, it is better for the country than when they care most deeply about an Argentinean footballer playing for a Spanish team?

Pakistan has been in existence now for almost 70 years. The fact that many prescribed a swift demise for it is a matter of record. After Bangladesh split off, those calls of doom were then repeated as if the disintegration of the country was imminent. But even the separation of Bangladesh is now many decades old. What then keeps this country together? If there is a ‘Pakistaniat’, what are its ingredients?

I don’t know the answer to that question. I do know that it is incredibly important for this country to construct a healthy, multicultural identity which allows the full diversity of its people to shine through. That identity has to embrace our heritage such as it is, not as we want it to have been. Don’t underestimate the role of cricket in constructing that identity.

There is a wise saying that we overestimate what we can do in a day and we underestimate what we can do in a year. The latest project to construct a stable and democratic identity for Pakistan is now almost eight years old. By itself, the launch of the PSL will do nothing to fix the myriad problems which afflict Pakistan. Heck, the PSL is not even going to fix Pakistan’s cricketing problems, let alone Pakistan’s political problems. But this is how foundations get laid: step by step, brick by brick.

This column was printed in The News on 7 February 2016.


Viva LLF!

In Uncategorized on February 8, 2016 at 3:40 am

In a few weeks, Lahore will once again to play host to the Lahore Lit Fest. Last year, the LLF drew more than 75,000 visitors. For three days, from morning till night, people kept streaming in. They came to see historians like Romila Thapar, artists like Shahzia Sikander, novelists like Mohsin Hamid and Bilal Tanweer, and even architects like Nayyar Ali Dada.

But do literature festivals matter? Or are they just diversions for the elite, a sophisticated version of the bread and circuses routine used by all governments since the Romans to keep people happy?

The answer to the first question is an emphatic yes: literature festivals do matter. They matter because art matters. And art matters not just from a personal perspective but from a national perspective. What we need – as a nation – is more art, more literature, more music, more dramas, more joy. And we need all of those not just because art is good for the soul but because art is good for the economy.

In a letter dated 12 May 1780, John Adams wrote to his wife that it was his duty to study politics and war so that his sons would have the liberty to study mathematics and philosophy. And his sons would have the obligation to study mathematics and philosophy so that their sons could, in turn, study “painting, poetry, music, architecture, statuary, tapestry and porcelain.”

The point that Adams was making is that the study and pursuit of art requires a certain settled society which only arises once not just the bare foundations of that society are in place but also its general features. An artistically productive state is thus likely to be a healthy state. Or, to put it another way, states that have degenerated into anarchy or a bare-bones struggle for existence are unlikely to produce any art, let alone great art.

The further point, as Mosharraf Zaidi noted a few days ago, is that terrorism consistently attacks the manifestations of the state. From polio vaccinations to schools to policemen, what the terrorist attacks is the ability of the state to generate order. When schools shut down, the terrorists win. When health workers can’t dispense polio drops, the terrorists win. And yes, when people are stopped from finding joy in art, the terrorists win.

Given the terror gripping parents of school-going children these days, it may appear a bit unseemly to insist upon the importance of art. My noble and learned friend Shakir Husain has long tracked the more ridiculous manifestations of what he terms “Fashionistas Against Terrorism” (or #FAT). And yes, the notorious BBC report featuring a flak-jacketed reporter breathlessly reporting from the grounds of the Islamabad Serena on the fashion show being held only 70 miles away from the frontline of the war on terror was a tad over the top.

But behind all the silliness, there is an actual point there. The ability to find joy in even the most adverse moments is integral to the resilience of a nation. If we stop laughing, stop dancing and stop making music then it really doesn’t matter whether or not the TTP physically destroys the state of Pakistan because it will have already enslaved its citizens.

One example of the relationship between art and war comes from the famed Sarajevo Philharmonic Orchestra. During the four year long siege of Sarajevo, seven members of the orchestra were killed and twelve were wounded. But the orchestra never stopped practising. More importantly, it never stopped giving concerts. As one scholar has since noted, the arts “played a vital role in the struggle of the citizens to survive the years of the siege. Through underground concerts, plays, and performances, the city was able to keep hope alive.”

The relationship between music and societal resilience may seem a bit distant from our current predicament but it shouldn’t be. As our embattled interior minister noted the other day, Pakistan is in danger of losing the war on terror psychologically even while it gets closer to winning it militarily.

Since I’m not sure that the benighted leaders of this country will ever get around to making the arts a part of the war on terror, let me try a different tack.

Joseph Nye, who pioneered the concept of ‘soft power’, defined it as “the ability to get what you want through attraction rather than through coercion.” And currently, Pakistan ranks very low on the soft power front. When the average foreigner thinks of Pakistan, he thinks of bombs and terror, not of Mughal monuments and qawwalis. When the average foreigner thinks of India, he doesn’t just think of the Taj Mahal, he thinks of ‘Incredible India!’

Remaking Pakistan’s image is not just important from an international relations perspective, it is important from an economic perspective. By any measure, tourism is one of the largest industries in the world. It is certainly the largest service sector industry. By one measure, it accounts for about 277 million jobs and about 9.8 percent of the global economy. And yet Pakistan currently ranks 125th on the Global Travel and Tourism Competitiveness Index!

But soft power is not just an aspect of international relations: it’s most important aspect is domestic. Most Pakistanis do not want to stay in Pakistan. The reason why the movie ‘Zinda Bhaag’ resonated with so many viewers last year is because they shared the characters’ desire to escape from Pakistan by any means necessary.

Let’s ask ourselves a simple question: given a choice, why would any young person want to live in Pakistan? Our legal system is a farce, our education system is rubbish, our students are constantly being shot at, our society is misogynistic to the core and our economy is perpetually on the edge of collapse.

This country cannot simultaneously be at war with its own heritage and with the terrorists who seek to destroy us. It is time now to instead embrace that heritage, irrespective of whether we inherited it from Muslims or Hindus. Remaking Pakistani into a miniature version of Saudi Arabia can wait till we have first dealt with the people trying to kill us for being insufficiently Islamic. To give a historical example, Stalin abandoned communist orthodoxy after the Nazis attacked Russia and instead went back to exhorting the masses to save Mother Russia.

As I write these lines, Lahore is still in the grip of a miserable cold spell. But there is sunshine forecast for the coming week and I know that spring is around the corner. In the years gone by, the advent of spring would have been marked not just by blossoming mustard flowers but by the emergence of brightly coloured kites dancing sprightly in the breeze. Those kites are now gone, victims of judicial pressure driven in turn by hysterical media coverage featuring the usual moralising bores.

The banning of Basant is probably not the stupidest economic decision in the history of Pakistan but it isn’t that far behind either. Basant was our one true festival of the masses, a time of great joy and happiness, an occasion enjoyed by rich and poor alike. Yes, innocent people died every year because of illegal kite string. But the answer was to ensure the unavailability of illegal kite string, not to throw out the baby with the bathwater.

As a nation conceived in ideological terms, Pakistan is very much unusual. At the same time, having survived now for almost seventy years, it is much more than a mere experiment. At the end of the day, what drives official mistrust of art festivals and kite flying is the suspicion that without constant policing of the ideological borders, the people of Pakistan will somehow revert back into Hindus.

But perhaps the time has finally come for our leaders to stop forcing Pakistanis into a particular mould. Perhaps the time has instead come to trust the people. Isn’t that what democracy is all about?

This column was printed in The News on 31 January 2016.

The art of the possible

In Uncategorized on February 8, 2016 at 3:39 am

Two weeks ago, I presented an argument that the liberals of Pakistan should be grateful for the Shariat Court. My argument rested on the following two points: (a) the FSC hasn’t actually done anything significant; and (b) the FSC serves as a useful dead end for Islamic causes.

My column produced an eloquent response titled ‘An act of appeasement?’ from fellow lawyer Salman Akram Raja. He conceded that “For the Islamist … the Federal Shariat Court is indeed largely Mr Naqvi’s talk shop.” However, he argued further that “the Islamist is not appeased”. Finally, he argued that given the fundamentally different ideas of the creator of the Shariat courts, liberals had no cause to be grateful for the FSC.

Salman’s article in turn spawned an outbreak of loathing for the FSC on Twitter. Another learned friend went further and accused me of praising Zia’s legacy and of mocking democracy.

With great respect, Salman’s primary criticism is misguided: I never argued that the FSC was “intended” to function as an act of appeasement. Instead, I clearly indicated that the FSC was intended by General Zia to Islamise the legal system in an anti-democratic manner. Furthermore, my primary point was that, notwithstanding its ‘intended use’, the FSC has – in practice – not done a whole lot worth complaining about. The contention that the Islamist has not been appeased by the FSC only buttresses my contention that the FSC has been largely irrelevant.

Let me add further that those learned friends who accuse me of praising General Zia need to distinguish between praise of what General Zia intended to accomplish (the wholesale Islamisation of the constitution) and an appreciation of how the FSC has actually functioned (ie, as a convenient dead end in which inconvenient Islamic issues can be left to moulder).

Several commentators, Salman included, have referred to the Qizilbash Waqf case (in which land reform was declared unIslamic) as an example of the malign influence of the FSC. However, I read that case not as an Islamist intervention in Pakistan’s legal discourse so much as an elitist response to land reform conveniently packaged in Islamic garb to negate popular discontent. In any event, it may also be recalled that some of us are not leftists and do not mourn the death of land reform in Pakistan.

The real issue, so far as I can see, is the validity of my counterfactual – ie, that things would have been worse without the Shariat Court. As my friend and colleague Nasar Ahmed put it, where’s the evidence?

Let me first concede that my evidence is mostly speculative. Indeed, given that I am comparing today’s reality with an alternative that never happened, it can hardly be otherwise. Having said that, let me present my case in more detail.

First, it needs to be recalled that the Shariat Court was preceded by an attempt by various judges, particularly Justice Afzal Zullah, to replace common law principles of equity with Islamic principles of equity. Subsequently, Justice Zullah was elevated to the Supreme Court where he eventually became the chief justice and made multiple attempts to integrate his earlier judgements into the jurisprudence of the apex court. In some judgements, he actually succeeded. For example, the Supreme Court held in CIT v Siemens, PLD 1991 SC 368 that till such time that existing statutes were not brought into conformity with the injunctions of Islam, their interpretation, application and enforcement would be as per Islamic philosophy, its common law and jurisprudence.

In my view, the strict segregation between the Shariat Court and the regular judiciary helped the more liberal members of the judiciary keep the Zullah approach in check. For example, the Supreme Court specifically noted in the Kaneez Fatima judgement that bringing existing laws into conformity with Islam was to be accomplished via the Shariat Court, not the ordinary courts. I have not conducted a detailed study but my impression remains that a similar argument was then consistently used by the superior courts. In any event, basic common sense suggests it is easier for judges to deflect awkward petitions towards an alternate forum than to take the responsibility of explaining to a passionate advocate why his grand plans for Islamising Pakistan may not accord with the Constitution.

Even in the abstract, dividing the power of judicial review from the power to declare a law unIslamic makes sense from a basic separation of powers perspective. In other words, declaring a law unIslamic currently requires the concurrence of both the Shariat Court and the Supreme Court. By comparison, any single judge of the high court can declare any law to be unconstitutional. As a legal conservative, I would rather that the power to declare laws unIslamic did not exist. But if it is to exist, I would rather it was as hedged as possible.

Second, I remain extremely sceptical about the ability of our judiciary to withstand illiberal pressure when expressed in religious terms. To give one specific example, I assisted the attorney general for Pakistan in both the Hisba cases. For those who don’t remember, the Hisba bill was the brainchild of the MMA government in the (then) NWFP and sought to introduce a system of moral policing to be enforced by government-employed mullahs.

The first attempt to introduce such a law in 2005 was challenged by the federal government in the Supreme Court which struck down the bill on the grounds that it violated fundamental rights. The Frontier Assembly was not easily deterred though and passed another bill after making a few cosmetic changes. Once again, the federal government went to the Supreme Court. This time, however, there was a new member of the bench and he not only saw nothing wrong about the coercive implementation of Islamic virtues but loudly announced this fact. None of the other judges dared to confront him. In fact, but for Justice Sardar Raza (currently the chief election commissioner), the revised bill would have been upheld in its entirety. Had it not been for the fact that the MMA government became distracted by internal divides, Khyber Pakhtunkhwa would have been stuck with the consequences even today.

Third, those who celebrate the ability of our Supreme Court to confront dangerous issues like the conviction of Mumtaz Qadri need to also remember that the roots of constitutionalism in Pakistan are shallow. When Salmaan Taseer was murdered, government-affiliated clerics refused to lead the prayers for his prayers. When Sherry Rehman proposed amendments to the blasphemy laws, she had to flee the country. And the law advisor to the PPP government then had to prove his populist credentials by proclaiming that he was personally willing to kill blasphemers.

I understand that in an ideal world, the superior judiciary would deal with all arguments, both Islamic and secular. I understand that in an ideal world, judges would write sensitive judgements fusing progressive ideals with an enlightened understanding of Islamic history and jurisprudence. But we don’t live in an ideal world. If the regular judiciary was entitled to rewrite our legal structure on the basis of Islamic law, we could wind up with a much better legal universe. But we could also wind up with one which is a lot worse. Forgive me if I don’t want to take that chance.

There is another old saying that politics is the art of the possible. Pakistan is a country of almost 200 million people, very few of whom are ‘roshan khayal’. In the ideal world of the Pakistani liberal, General Zia would never have happened, Islamisation would never have happened and land reform would never have been struck down. Unfortunately, we don’t live in an ideal world. General Zia did happen and we are stuck with his legacies. To the extent that any of those legacies have proven useful, the liberals of Pakistan need to get over their scruples and learn not to look a gift horse in the mouth.

This column was printed in The News on 24 January 2016

The curious case of the Shariat Court

In Uncategorized on February 8, 2016 at 3:37 am

For most liberals, the Shariat Court is an abomination – a blot on the constitution, the poisonous legacy of an evil regime. But is it really such a bad thing? At least in my view, liberals should be grateful for the Shariat Court, not resentful.

Let me unpack my thesis first by explaining what I mean by the term ‘liberal’. In this specific case, I am referring to people who believe that religion should play a limited role in politics, preferably nil. Or what our friends across the border now call ‘sickulars’.

The Shariat Court, for all those who haven’t studied the Pakistani constitution, is a special court made up of up to eight Muslim judges appointed for one or more terms of three years by the president of Pakistan in the same manner as judges of the high court (which is to say that they are appointed on the recommendation of the Judicial Commission).

The Shariat Court deals with two types of cases. In the first instance, the Shariat Court has the exclusive jurisdiction to determine whether or not any law is repugnant to the injunctions of Islam. Secondly, the Shariat Court hears appeals related to criminal cases decided under the various Hudoood laws (ie, dealing with drugs, fornication, adultery and other deadly sins).

Liberals detest the Shariat Court because it is a lasting symbol of General Zia’s attempt to Islamise Pakistan. From the liberal perspective, the introduction of the Objectives Resolution was a betrayal of the promise by the Quaid-e-Azam in his famous speech on August 13, 1947 that non-Muslims were free to go their temples and that after the establishment of Pakistan, there would be no distinction in practice between Muslims and non-Muslims. The introduction of the Hudood Ordinances and the creation of the Shariat Court thus symbolise to the secular Pakistani everything that was wrong with the Zia years. More generally, liberals oppose the Shariat Court because they see it as a counter-majoritarian and anti-democratic institution, one that privileges a particular religion and, more specifically, gives preference to conservative and fundamentalist visions of Islam.

But, again, is this hatred for the Shariat Court really justified? I say this because, at least so far as I can see, the Shariat Court functions as a fire-break, a safety valve where Islamist ideas go to die. If the Shariat Court did not exist, the support that exists for Islamic law in Pakistan would probably have to be accommodated in far more extensive ways. And so I repeat, liberals should be grateful for the Shariat Court, not resentful of its existence.

Take, for example, the case of Mumtaz Qadri. In purely legal terms, there is nothing to discuss in the case. Mumtaz Qadri murdered Salmaan Taseer and proudly claimed responsibility for his actions. And yet, when Qadri was taken to court, he was showered with rose petals by hundreds of lawyers. Mosques have since been named after him and politicians, including some very highly placed individuals, are rumoured to spend hours singing hosannas of praise for Qadri. That is because while the case may have been legally simple, it was also political dynamite. Even our fearless anchors tiptoed gingerly around the merits of the Qadri case. And the Islamabad High Court convinced no one when it upheld the death sentence given to Qadri but struck down the applicability of the Anti-Terrorist Act.

The Supreme Court, on the other hand, simply cut through this Gordian knot of law and politics by declaring loudly that it had no jurisdiction to deal with issues of Islamic law. Take your religious concerns to the Shariat Court, was the response of Justice Khosa, this court will only deal with law. And then the Supreme Court proceeded to shred all the legal arguments presented to it by Qadri’s counsels.

What needs to be recognised now is that Zia’s attempts to Islamise the jurisprudence of Pakistan not only failed to remake the legal system as it then existed but that the system is now stronger than ever. In a way, the Zia years acted as an inoculation against further radicalism, the same way that a cowpox infection prevents smallpox.

Let’s take the major Zia interventions one by one.

First up is the introduction of Article 2A into the constitution. For those who don’t know, Article 2A states that the Objectives Resolution shall be made a “substantive part of the Constitution”. The reason it was made a ‘substantive part’ of the constitution is because an earlier attempt to give overriding effect to Islamic law had been rejected by the Supreme Court precisely on the basis that the Objectives Resolution was not a substantive part of the constitution.

But what came of Article 2A? Short answer: nothing.

In 1993, the Supreme Court looked at Article 2A in the Kaniz Fatima case and held that the Objectives Resolution could not be given substantive effect because that would rewrite the entire constitution and obviously that could not have been the intent of General Zia (who was now conveniently dead and no longer around to argue).

What about the Shariat Court? Well, I’ve been practising as a lawyer in Pakistan for twenty years now and I can’t think of any issue on which the Shariat Court has had a significant impact. You see, even if the Shariat Court does come up with some earth-shattering opinion, that judgement will most likely get suspended by the Shariat Appellate Bench (ie the Supreme Court wearing an Islamic hat). Danger only arises if both the Shariat Court and the Supreme Court go off the deep end.

The last time that confluence happened was in 1999 when the Shariat Appellate Bench gave a mega-judgement on why all forms of interest constituted riba. As it so happened, the relevant members of the bench were then PCOd by General Musharraf and a different bench of the Supreme Court then reversed course and remanded the matter back down to the Shariat Court (which of course has done nothing in the 14 years since).

But is pushing our tricky questions into constitutional dead ends such a good strategy? Would it not be better if lots of enlightened people got together and figured out how to make Islam work in the modern world?

My problem with this theory is precisely that it is long on theory and short on evidence. So far as I have been able to tell, there is a very small supply of enlightened Muslims and a very large supply of unenlightened Muslims. More importantly, the social credibility of the enlightened portion of the Ummah seems to run a very distant second to fire-breathing idiots who demand that we should stone sinners to death.

I understand that what I am supporting is essentially anti-democratic, that my argument can just as well be used to argue that the people of Pakistan are too dumb to be trusted with the vote and that we should immediately shift to some sort of enlightened dictatorship.

So be it. To begin with, the constitution does not provide for a pure democracy. Instead, the first substantive sentence of the constitution says in very blunt terms that “Pakistan shall be a Federal Republic.” And in a republic, power vests in the elected representatives of the people, not the people themselves.

I get the alternate argument that we need to trust the people of Pakistan to get it right, that in the long run they will sort out the charlatans from the genuine leaders. But to quote Keynes, “In the long run we are all dead.”

Long live the Republic.

This column was printed in The News on 10 January 2016.