01.12.2013

Islam imagined by western academia
The relationship between the Islamic world and the West (Christian world) is not defined entirely through crusades
By Tahir Kamran

Professor Francis Robinson needs no introduction particularly for those engaged in the history of South Asian Islam. He is an internationally acclaimed historian from Royal Holloway, University of London.

Graduate students of South Asian History were indeed thrilled when he came to Cambridge recently to give a weekly seminar on ‘Global History from an Islamic Angle’. He spoke for an hour and tried to encompass the whole history of Islam, which obviously was far too ambitious an undertaking for even a seasoned campaigner as Robinson.

He referred to contesting civilisations as a category of analysis for Muslims throughout his presentation – but with a pinch of salt. Perhaps, ‘civilisation’ as a tool for any social analysis has been trivialised quite considerably in the wake of Samuel Huntington’s book, ‘Clash of Civilizations’. Subsequently, ‘civilisation’ has come to reek of antagonism thus reinforcing mutual exclusion between different social units. Robinson primarily underscored the interaction between Islamic civilisation and the western world – by tracing the commonality articulated through folk tales, Dastaan goi, as the usual mode of sharing knowledge.

Folk tales cut across the social and cultural fence, creating a public sphere which brings together people of different hues. Similarly, various branches of scientific knowledge, such as astrology and astronomy, and patterns of consumption enhanced the mutuality between the two peoples. He emphasised the importance of trade routes Muslim merchants and traders used for travelling, along with their merchandise like tobacco or opium.

Thus, he brought into play a different trajectory to make sense of Islamic expansion rather than attributing it to the military prowess of ambitious Muslim rulers.

Crusades have been immensely important but we must not be obsessive about them. The relationship between the Islamic world and the West (Christian world) is not defined entirely through crusades.

Having said this, Islam’s interaction with modernity is the most tenuous of all intellectual formulations that western academics flirt with. Francis Robinson is of course no exception. Islam’s quest to expand globally was contingent on its imbibing influences from the West after it turned Protestant in the 17th century. Hence, the interaction of the Islamic world with the ‘rational’ West brought to them ‘this worldliness’, a terminology Robinson borrows from Max Weber, a German anthropologist of undisputed stature. Thereafter, Muslims became conscious of their present, located in the physical world.

Prior to its interface with the ‘rational’ and ‘scientific’ West, Islam and its adherents specifically in South Asia were incarcerated by ‘other worldliness’, by which Robinson implied Islam mediated through various Sufi Orders.

By advancing this argument, he seems to have seen the strong influence of Sufism on the socio-cultural ethos of the whole subcontinent in a negative light. What he calls this ‘worldliness’ has brought religious Puritanism which set forth fissiparous tendencies like sectarianism that we are experiencing in Pakistan.

Imagining the whole world after the West and the way it evolved is considered far too pervasive in western academia.

Faisal Devji, a historian from the Oxford University, is also victim of the same fallacy. In his article ‘Apologetic Modernity’, he says the phrase ‘Islam’ emerged in South Asia as a compact religion only in the 19th century. This is an utterly bizarre assertion.

Although Francis Robinson and Faisal Devji represent different traditions of history-writing, they assume modern day Islam is a western construct – Robinson regards ‘this worldliness’ as the bequest of the western protestant ethics whereas Devji categorically imagines it as the doing of the West.

Despite the epistemic conundrum conjured up by the western academics, like the two mentioned above, one must not lose sight of the fact that the cataclysmic changes that rocked Europe in the 18th and 19th centuries had permeable influences on Muslims, irrespective of their territorial specificities. ‘Young Ottomans’ was an organisation established in the first half of the 19th century in Constantinople by a group of young people like Sadik Rifat Pasha, Ziya Pasha and Namik Kemal. They became prominent during the 1860s. They were well-conversant with the literature of Europe and its ideas and admirers were of its strength and progress, but still they were not wholehearted westernisers.

The idea of reform had swept across the Muslim world including the subcontinent in the 1860s which primarily aimed at addressing some convoluted questions: what is a good society; the norm which should direct the work of reform; can this norm be derived from the principles of Islamic law or is it necessary to go to the teachings and practices of modern Europe; is there any contradiction between the two…

These questions cast indelible impression on almost all the Muslim reformers like Rifa’a al-Tahtawi (1801-73) from Egypt, Khayr al-Din Pasha (1820-1889) from Tunis, Jamal al-Din al-Afghani (1839-1997) from Afghanistan, Syed Ahmad Khan (1817-1898) India, and others such as Muhammad Abduh, Allama Iqbal, Rashid Rida and Abu Ala Maududi. All of them were profoundly influenced by the western thinkers. They, in fact, tried to re-orientate Islam in the light of western epistemology. French enlightenment permeated deep into the contemporary political discourse of the Middle East and Turkey.

Albert Habib Hourani in his masterpiece, ‘Arabic Thought in the Liberal Age – 1798-1939′ claims with unequivocal certainty that the political concepts like Khilafat and Umma got currency in the last quarter of the 19th century when the Empire system had been wrecked beyond repair. Ethnic and religious insurgency aided by the western powers had sealed the fate of the Ottoman Empire. Mughals had already been made the saga of the past. It was then that the Turkish Sultans propounded such concepts with a pan-Islamic ring to them.

All said and done, Muslim world was ushered in an era of modernity because of historical exigencies. Much of what is being believed is the outcome of the modernity’s redefinition of our system of faith. Print, loud speaker, communication network, railway, modern weaponry and the emergence of public sphere have transformed us and our belief system beyond measure. What, however, makes us different from the West is that our religious tradition has re-invented itself through the instruments of modernity.

Quite conversely in the West, modernity embedded in scientific rationality has rendered religion socially redundant and confined it to the private sphere.

The course of history had been different for both ‘civilisations’. Therefore, to draw inferences from the history of Europe, to make sense of the Muslim world, is a colossal fallacy to say the least.

01.12.2013

Bad choices
The social consequences of a fragmented and unregulated marketplace of education are already unfolding in the society while we chose to look the other way
By Irfan Muzaffar

No one disputes the perception that our public sector schools have failed to provide a decent education to children. But the way the society has responded to this failure is even more disturbing. We could have reacted to this situation without losing our focus on the essential vision of public education of good quality provided free of cost at the point of service. That is the way states with successful universal education systems have reacted to the early challenges in their way.

It was always a long and arduous but ultimately successful struggle to get individual taxpayers, philanthropies, and businesses to pay for a publicly provisioned common school for all children. Take a look at the nations with a successful system of free and compulsory education and you will find none where the state is not the main financier and provider of education.
No state in the modern history has placed the education of its young citizens entirely at the mercy of market forces. How it is then that we have responded to the difficulties of public sector by abandoning it altogether?

No state in the modern history has placed the education of its young citizens entirely at the mercy of market forces. How it is then that we have responded to the difficulties of public sector by abandoning it altogether? This abandoning of the public sector is already underway in practice, if still not in rhetoric.

There is nothing new about attracting the private entrepreneurs to education except that the recent thrust is fully backed by the multilateral and bilateral donor agencies. A cursory look at nearly all education policies, with the exception of the 1972, would show a tendency to avoid an increase in public spending on education through appeals to private sector.

For example, in the six-year development plan published by the government in 1951, Fazal-ur-Rehman, the then Minister for Education of Pakistan, stridently declared education as compulsory, yet rendered it unachievable without contribution from private sector. Likewise, the report of Sharif Commission on education in 1958 minced no words in advocating less public spending on education. The commission asked people to pay for education from their own resources and not to “expect the benefactions of government to provide them with the environment and institutions they desire for themselves, their children, and their community.” It asked them to accept that since it was they and their children who benefitted most from education, the sacrifices required were to be borne primarily by them.

These recommendations may be faulted for many other reasons but not for their crude honesty. So there is nothing new about Pakistani state first identifying expansion in education as a precondition for progress, even using the ideal of compulsory education, but then stopping short of taking practical steps to provide the resources needed to expand educational opportunity to all citizens.

Those who were at the forefront of ‘Education For All’ (EFA) movement in the heady days of early 1990s may have thought that Pakistan was finally becoming serious in its attempts to universalise education. After all, careful estimates showed that if a country committed more than 2.5 per cent of GDP to basic education, allocated more than 15 per cent of its national budget to education, and operated schools at costs per child of less than 15 per cent of GDP per capita, it could afford universal access to education (See http://tinyurl.com/mzdz7fn).

But the governments remained unable to reach these levels of public spending on education partly due to lack of political will and partly due to the double game played by the international financial institutions. The developing countries like Pakistan were asked to commit to providing Education for All on one hand and squeezed to curtail public expenditure on the other through the so-called structural adjustment programmes that entailed public spending cuts. So the state attempted to make a decent education accessible to all children but failed. This failure created a fertile ground for unfettered growth of private educational institutions.

Meanwhile, Pakistan’s constitution was amended in 2010 to render education free and compulsory for all children up to age 16. This development, some of us thought, was yet another solid affirmation of the commitment of the state toward universalising education. Many hoped that this would spawn a flurry of rigorous policy analysis and civil and political deliberation to determine what it would take to equal the challenge posed by this gigantic task. But this did not happen and instead an even more robust movement was kicked off to provide more support to private entrepreneurs. This movement, which is currently underway, draws its support from multilateral and bilateral donors, policy scientists and entrepreneurs, and even some civil society organisations.

A state with a political economy ill disposed to raising expenditures on public services, in fact constantly under pressure to reduce them by the international monitory agencies, would find the low cost alternatives irresistible. This position has been lent further support from the comparative studies of the public and private schools conducted by some policy analysts.

These studies find that private schools produce more learning outcomes for less per student costs relative to the public schools. This convergence of policy advocacy in support of a low cost private alternative and the results of comparative studies, though largely inconclusive, are gradually gaining a foothold and pushing the talk of constitutional promise for free and compulsory education away from the centre stage of deliberations on education policy.

What was apparently unacceptable under the constitutional promise has come to be resignedly accepted by all and sundry. The social consequences of a fragmented and unregulated marketplace of education are already unfolding in the society while we chose to look the other way.

What is to be done to stop an unregulated and segmented education marketplace from exacerbating the social fragmentation to which Pakistani society has already fallen a prey?

The signs of this social fragmentation and its link with the types of schools were illustrated vividly even in one of the updates on the social media. An activist friend on the Facebook recently captioned pictures of a large gathering in Rawalpindi with following words, “So scary. So much anger & such power”. I looked at the picture and asked, “Who were these people and where did they come from?” The TV footage of the same events showed that many of them were adolescents, some were even younger. These children were so full of zeal, and hatred for the ‘other’, that they had the effect of scaring those who probably have been to a different kind of school.

Evidently, some private schools, those at the high end of the fees spectrum, had produced those who had more stakes here, in this world – the so-called moderates. But there were others, which have produced individuals with more stakes in the hereafter. None, neither the high fees private schools nor the low or no fees private schools have sought to develop a balance of spiritual and material in their students.

Many of the participants in the ‘scary’ gathering were likely the children of poor parents who must have exercised their ‘choice’, to use the language of advocates of private schools, to send their children to private schools that charged no fees, i.e. the religious seminaries. What else are the religious seminaries if not a type of private school?

The so-called liberals are products of one kind of private schools while their ‘scary others’ are products of another kind of private schools. They have no shared common values, no basis for communication with each other. This is the sort of social fragmentation the state has already brought about by pushing its educational responsibilities out of the public and into the private sphere?

Before you get me wrong, I am not against the parental right to enrol their children in a private school if they had a real choice. But it is never a real choice for poor households. It reminds of a billboard advertisement put up by the KFC in Karachi before the Independence Day. It said something like, “We are a free nation, free to choose…” and under these words were given two deals for the fried chicken meals to choose from.

What is this choice if it is to be between a failing public school and only a marginally better private school. While the advocacy for the low-cost private schools relies on the attractive rhetoric of choice and inconclusive evidence about superiority of private schools, it is entirely rooted in the free market ideology. This ideology has already played havoc in the West and is fiercely resisted on the political front by the concerned stakeholders. The reason it is easily sold in Pakistan is because the idea of public sphere and its manifestation in a robust public sector to protect public interest never got a foothold in this country.

We need to refocus on the idea of public interest and not let the ideologues of low-cost private schooling mislead us. We need to ask questions about how such schools will protect the public interest. The state and society must recognize the collective public stake in education and stay focused on the inalienable right of every child to receive a good quality basic education free of cost at the point of service.

We may debate about all possible alternatives including the low-cost private schools, but we must formulate some principled conditions that must be fulfilled by all schools, and also ensure that these schools are aligned with the constitutional provisions under 25-A.

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"Nay! man is evidence against himself. Though he puts forth his excuses." Holy Qur'an (75:14-15)

01.12.2013

Denying democratic dividends
Revival of local governments and their smooth functioning will help restore eroded confidence of masses and invigorate an anemic democracy in the country
By Naseer Memon

After keeping millions on tenterhooks for weeks, the Supreme Court finally relented to agree with the Election Commission’s views and reluctantly relaxed timeframe to resolve imbroglio on the local governments’ elections. Election Commission’s earnest iterations and the repeated resolutions adopted by the National Assembly and the Sindh Assembly created an ambience where further obstinacy would have triggered another unpleasant clash among the state pillars.

Although Supreme Court was blamed for obduracy, the unrealistic timeframe was initially suggested by the concerned provinces themselves. Impracticality of the timelines belatedly dawned on the provinces and shifting gears on the election dates engendered an impression that local government elections are being evaded once again. It prompted Supreme Court to prod provinces to remain steadfast with the committed election schedules.

The provinces had to adopt a similar hasty course for legislation on local governments. Indolent response and dilatory tactics of provinces constrained judiciary to impose timelines for the legislation. The provinces consequently embarked upon reckless legislation and still filing rough edges with frequent amendments.

These episodes also denuded the sheer lack of professional capacity and political commitment of various actors that blighted the electoral process of local governments. Had the Election Commission and the provincial governments demonstrated their seriousness, no other institution would have drawn justification of encroaching upon their domains.

Preoccupied with other pressing priorities, they would have conveniently skirted the local governments’ formation. The Punjab government paved way for another judicial intervention by denying party-based elections in the Local Governments Act.

Article 140-A of the Constitution prescribes political devolution in unequivocal terms. In spite of a popular demand and a constitutional obligation, the Punjab government opted for non-party based elections and eventually had to bite the dust. After the court orders, the PML-N government is obliged to rectify the law but only after losing its political grace. Another similar gaffe has been committed by curtailing number of seats for women.

Local governments are not only a constitutional obligation but also a logical extension of parliamentary democracy. For about four years now, democracy has been limping without local governments.

The previous regime of Pakistan People’s Party wasted three years and did not take any serious steps towards formation of the local governments. In Sindh, the party and its allies remained engaged in endless negotiations on the local government law. Pakistan Muslim League-N held the throne of Punjab for last five years but they also remained glued to status-quo. Both leading parties ostensibly relish democracy and cherish their democratic credentials yet committed a willful default on sharing democratic dividends with citizens.

The PPP rightly boasts 18th Amendment as a great triumph of democracy, yet it did not demonstrate the same spirit for decentralising powers from provincial headquarters to districts and lower tiers. Over the time, provincial headquarters have emerged as new power centres imitating Islamabad while treating their own districts.

Unelected dictators always avidly promoted local governments, however for the sake of their dictatorial ascendency. It is sheer lack of sagacity, if not political dishonesty to exalt dictators for their ruse of strengthening local government system. In fact, they would create a string of fiefdoms to devolve powers and resources to a coterie of their loyal thus cementing their regime at lower level while abstracting provincial governments which is an indelible constitutional tier of the federation. What is, however, imprudent on part of elected regimes is that in a fit of concentrating their rule in provincial headquarters, they did not like to unbundle their stack of powers.

Elected regimes have unfortunately their own appetite for powers and propensity of ruling the subjects rather than serving them. Predominantly composed of extravagant rich who splash millions to get elected, the sordid elite consider it their legitimate right to recover their investments with markup. As a corollary to that, the legislators have relegated themselves to market vendors trading contracts, jobs, postings and transfers. Political parties have thus made the mockery of democracy and actually buttressed the illegitimate authority of elite in the country.

Key state functions e.g. providing basic services, livelihood and employment opportunities, security, law & order and justice have thus been delegated to the elected representatives, compelling citizens to pay allegiance to these local power lords. Since a local government system will invariably decentralise basic services and grassroots level development, the elected representatives are reluctant to let them exist, let alone flourish. But if it becomes inevitable, they will employ all means to bring them in their family fold by installing their progenies on local thrones.

Large size of constituencies and prohibitively exorbitant electoral campaigns make it affordable only for filthy rich to contest elections for national and provincial assemblies. This elite capture has jettisoned the lower and middle class segments from mainstream politics. Local governments are a small aperture for politically marginalised citizenry, particularly for women, working classes and minorities to acquire some space in political architecture of the country. Denying this space is a denial of democratic dividends to those who sacrificed their lives for decades for restitution of democracy.

Political parties will lose moral ground and legitimacy to rule without integrating these marginalised groups. Not allowing local governments to function and gain roots would be tantamount to chopping the branch on which political parties have nested. This unpardonable remiss will take its toll by rendering democracy an unrealised dream.

In the long run, a sustainable local government system will bestow sustainability to a fledgling democratic dispensation. Devolving basic services to lower tiers will relieve legislators from a superfluous onus enabling them to veer their focus towards higher level of policy formulation and legislation. Legislators’ penchant for infringing into the domain of service delivery has created a chaos in the society.

Revival of local governments and their smooth functioning will help restore eroded confidence of masses. Crippled and debilitated by a deluge of problems in everyday life, hapless citizens can be provided considerable succor even with a sop of basic municipal services. They have forgotten quality life services and beseech for just enough to breath. If elected governments mercifully allow a fraction of local governments to function, it will guarantee their own longevity and survival. Ultimately it can invigorate an anemic democracy in the country.

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"Nay! man is evidence against himself. Though he puts forth his excuses." Holy Qur'an (75:14-15)

01.12.2013

Electric shock
Instead of building big and expensive medical edifices, it is better to strengthen the Rural Health Centres and Basic Health Units to provide advanced medical care
By Syed Mansoor Hussain

The government has raised electricity tariff, once again. According to a notification by the Ministry of Water and Power, new rates will be effective October 1 and additional charges would be collected from consumers in the electricity bills that they would receive in December. The farmers will also have to bear the burden of increase in the electricity tariff. The tariff for domestic consumers will be raised by 30 per cent, announced Federal Finance Minister, Ishaq Dar, in a TV talk show (Geo News Programme ‘Capital Talk’) on November 14, 2013.

Electricity bills as per new rates have given consumers restless nights because abolition of slabs has increased burden on the masses. However, the rationale advanced by the Finance Minister for raising the electricity tariff is untenable because it amounts to punishing the public for blunders – rather sins – committed by minions of the state.
No state in the modern history has placed the education of its young citizens entirely at the mercy of market forces. How it is then that we have responded to the difficulties of public sector by abandoning it altogether?

When the issue of electricity shortage cropped up in the 1990s, the authorities opted to meet the deficit by commissioning furnace oil fired thermal power stations. The per unit cost of producing electricity by oil fired stations is more than double than obtaining it from cheaper sources like hydro, coal, natural gas, synthetic gas, etc.

In Pakistan, till 1990s, energy generation was a mix of two-thirds hydro and one-third thermal. As the cost of hydro electricity is much less, the energy mix prevailing till mid-1990s, enabled the government to provide electricity to consumers at cheaper rates. However, ill-planned commissioning of oil-fired thermal stations in the late 1990s drastically changed the energy mix to two-third thermal and one-third hydro. The reversal of the ratio of energy mix pushed-up the average per unit cost of electricity substantially. Here a question arises why did the authorities decide to opt for oil-fired stations when electricity could have been obtained from cheaper sources?

Since oil-fired thermal stations take less time to commission, may be this factor contributed to the government’s decision to set up oil-fired stations! Being unsustainable in the long run, however, the decision to install oil-fired power stations could have been a stop-gap arrangement and not a long-term solution to the energy crisis. But, continuous and prolonged reliance on oil-fired power stations has created multiple problems (including the vice of circular debt, tariff hike, loadshedding, relocation of some industrial concerns to other countries), negatively impacting the national economy and job situation in the country.

Even Finance Minister Ishaq Dar agrees that the current inflation and price hike is mainly due to increase in international fuel prices. In other words, the mother of the current economic morass in the country is its too much reliance on oil imports. However Dar claims: “The government is sensitive to the hardships of the people and is on an average providing a subsidy of around Rs2.2 billion every month just to lessen the burden of the rise in fuel prices on the common man.” But, instead of holding those persons accountable whose bad policies and wrong decisions have led to this crisis, the government is now punishing the people by substantially raising the electricity tariff at a time when the citizens are already groaning under the weight of double digit inflation.

Meanwhile, Pakistan Hosiery Manufacturers and Exporters Association (PHMA) has revealed that it is negotiating with business-friendly countries in a bid to shift businesses abroad. In a circular to its members, PHMA has asked the exporters interested in moving their businesses abroad to contact it at the earliest, saying PHMA was negotiating with countries having better business and export-friendly policies and “offering attractive incentives to foreign investors as well as permanent citizenship.”

PHMA has constituted a committee to work out a strategy for its leading member exporters who are sick of bad governance in the country, causing worst-ever energy crisis, frequent power outages and increase in tariff for the utilities, deteriorating law and order situation, strikes, liquidity crunch due to huge amounts of outstanding sales tax refunds and customs rebate and high cost of doing business which, according to it, have sounded a death knell for the exporters. The country earns $2.75 billion from the export of hosiery products. If some members of PHMA relocate their business abroad this is bound to negatively impact the country’s economy, in particular export earnings.

To rid themselves of the crippling effects of loadshedding, some industrialists, instead of relocating their factories abroad, have opted for getting installed SNG (synthetic natural gas) plants. Though three times more expensive than the natural gas, SNG is 50 per cent cheaper than furnace oil. Furthermore, SNG is easily available and its plant can be connected to the existing natural gas lines, providing the option to use it during loadshedding hours.

Meanwhile, the Economic Coordination Committee (ECC) has taken the first major step towards an alternative gas pipeline, which involves India and Afghanistan as well, by giving consent to the appointment of Asian Development Bank (ADB) as transaction advisor. The four stakeholder countries – Turkmenistan, Afghanistan, Pakistan and India – are scheduled to meet in Ashkabad and sign the Transaction Advisory Services Agreement. This agreement will enable ADB to find out a leading but technically and financially sound company that could form a consortium to generate the finances for the $7.8 billion Turkmenistan, Afghanistan, Pakistan and India (TAPI) gas pipeline spanning over 1600 KM. The TAPI gas pipeline will provide 500 mmcfd gas to Afghanistan and 1,325 bcf gas per day each to Pakistan and India.

The TAPI gas pipeline is supported by the US against the Iran-Pakistan (IP) gas pipeline which has been facing serious problems because of lack of finances. However, Finance Minister Dar says that Pakistan will not abandon the IP gas pipeline project under US pressure, but Iran has backed out from financing it.

Originally styled as Iran-Pakistan-India (IPI) gas pipeline project, India quit it in 2008 after 13 years, but Pakistan and Iran agreed to continue work on it. The IP gas pipeline was to start delivering Iranian gas to Pakistan by 2012. However, various problems delayed its execution. Tehran had agreed to provide Pakistan $500 million loan to partially finance the construction of IP pipelines’ section on its side, which was estimated to cost $1.5 billion. Pakistan had to finance the remaining cost from its own resources.

Though economically non-viable for domestic use because of its higher price, Iranian gas was envisaged to enable Pakistan to generate 5,000 MW of electricity. Abandoning IP project or allowing it to become dormant after negotiations stretching over two decades looks ridiculous. How come the government could not raise one billion dollars for a vital project that it has been negotiating for almost two decades?

Anyhow, there has appeared a silver lining in the statement of Prime Minister Mian Nawaz Sharif, who said that the government is addressing the three Es – economy, energy and extremism – under a well defined plan.

The public can only hope for the best! If the incumbent government could tame and leash the three naughty Es, this step would be construed a feat worth admiring!

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"Nay! man is evidence against himself. Though he puts forth his excuses." Holy Qur'an (75:14-15)

01.12.2013

The art of diplomacy
Can non-career diplomats represent the state abroad and achieve
the goals assigned to them?
By Dr Javed Badshah

Diplomacy is not a jugglery, but a wisdom-oriented, high profile courteous relationship that plays a healthy role in establishing the relation of different states on this planet. The duty and role of a diplomat is certainly not to create agony and misunderstandings, but to ensure not only the interest of his own country but also to honour the prevailing laws of the host station.

It is a fact that only diplomats are not the charismatic creatures to run the state policies abroad; many non-career diplomats have proven to be the icon of foreign policies.

It is a fact that the original induction in foreign service is based on qualifying Central Superior Services (CSS) examination in Pakistan and then the interested individuals opt for diplomatic cadres. The Ministry of Foreign Affairs is not a unique ministry as compared to other ministries of the government, though the nature and orbit of duty are different. Efficiencies of our diplomats can be very easily measured by their performance at different world forums.

Pakistan has always faced hardship in getting majority votes on so many issues in the last few decades that reflects the performance of the career diplomats.

The technique of diplomacy cannot be inherited, rather its sense can be developed by knowledge, observation and God-gifted qualities. The very much example is that of late Yasser Arafat, Chairman PLO, who though by profession was an engineer but yet the entire world acclaims him as a very efficient diplomat. The same is the case with late Z.A. Bhutto and Henry Kissinger who both having high sense of diplomacy, established strong relations of their countries with China.

Diplomacy cannot be attributed only to those who are working in the Ministry of Foreign Affairs because monopolising a field cannot give fruitful results. Diplomacy has its own art and it is not mathematics. Whosoever has the vocabulary, convincing stance, high standards of mannerism and a deep insight into the world history and current affairs, can possibly prove to be a good diplomat to some extent. Journey towards excellence and perfection has always enough room and the field of diplomacy inspires high-profile individuals to identify venues for excellent diplomacy.

The first priority of each government is to establish friendly relations with its neighbours and other states of the world. It is the absolute prerogative of any government to appoint appropriate persons as envoys. How can an individual who has strong intellectual background, is articulate and wisdom-oriented, enriched with high sense of diplomacy, but due to some reasons has not been an active member of the Foreign Service in the past, be deprived of the opportunity to express himself on the diplomatic grounds?

The policies are generally initiated and approved by the government and not by the Foreign Office. Intelligence and capability are God-gifted phenomena. In the past, General Gul Hassan and General Jehangir Karamat (former COASs), Air Marshal Rahim Khan, former Air Chief, Major General Khurshid Ali Khan, and Rustam Shah Mohmand and so many other non-career envoys were sent as ambassadors to different countries. Can anyone point out any deficiency in their performance as ambassadors of Pakistan?

Posting to Washington, London and Riyadh demands high profile personalities because of the nature of duty at these stations. Pakistan normally prefers career diplomats for posting to Moscow, Beijing and Paris due to the specific environment and nature of relation with these countries. A person might have a deep bookish insight into the subject of diplomacy, but on practical grounds he may fail to prove himself. The apprehensions that a politically appointed envoy or ambassador might be loyal to the head of state/government or the appointing authority has no weight because being obliged to the appointing authority does not affect the dutifulness in one’s own office.

If we look at the foreign office’s mechanism of the United States and the performance of their Secretaries of States, like Condoleezza Rice and Madeleine Albright, these secretaries performed their duties to the best of their abilities though they were not career diplomats. The basic duty of a career diplomat is to make his stance convincing to the counterpart and achieve the objectives assigned to him by his government. Now, the concept is becoming clear that these respective qualities can be possessed by a non-diplomat as well.

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"Nay! man is evidence against himself. Though he puts forth his excuses." Holy Qur'an (75:14-15)

01.12.2013

Basics of health
Instead of building big and expensive medical edifices, it is better
to strengthen the Rural Health Centres and
Basic Health Units to provide advanced medical care
By Syed Mansoor Hussain

There was a recent news item that in Gujranwala district alone, hundreds of doctors are being hired to work in Rural Health Centres (RHCs) that were without adequate medical coverage. I would presume that this is a good thing but two important questions need to be answered. First, why were these RHCs without doctors in the first place and second, why the present Punjab government that has been in power for more than five years just thought of taking care of this problem?

Here a couple of things need to be stated. First, the present government of the Punjab has never thought of healthcare as an important issue. Second, that this government is run through ‘favourite’ bureaucrats. Most bureaucrats of the ‘elite’ services just don’t like doctors for ‘obvious’ reasons and have no desire to support or help them develop into effective professionals. I have seen obvious expressions of these two tendencies over the time I spent working in King Edward Medical College/University (KEMC/KEMU).
Incompetent bureaucrats never face any serious consequences for their actions especially if they are in the ‘good books’ of their masters. But doctors can always be fired or suspended or worse accused of murder

For almost five years, the Health Department bureaucrats ran a running battle against the Young Doctors Association (YDA). Even now some of the issues brought up at that time have not been resolved. Interestingly, the report of the ‘judicial commission’ that supposedly tried to allocate blame for patient mortalities due to YDA strikes was never issued. Was it suppressed because it also blamed the ‘un-blameable’?

The second experience I had was three years ago when the senior Health Department bureaucrat, twenty years my junior and totally incapable of any serious comprehension of matters relating to cardiac surgery tried to lecture me on the finer points of cardiac services. After listening to what he had to say, I politely told him exactly what I thought of his ‘ideas’ and also said in so many words, if you want to fire me, do so but please don’t act as if you know more about cardiac surgery than I do.

Soon thereafter my contract as professor and chairman of the department of cardiac surgery was terminated. That said, the aforementioned bureaucrat was also subsequently replaced as the head of the Health Department since one of the primary demands of the YDA was that he must be removed. But he went on to ‘bigger and better’ things.

And that is the major problem with much that goes wrong. Incompetent bureaucrats never face any serious consequences for their actions especially if they are in the ‘good books’ of their masters. But doctors can always be fired or suspended or worse accused of murder. And yes, even after years of service doctors will never get official cars, big homes, servants and protocol.

Another personal anecdote is worth mentioning. In 2004 just before I took over as the professor and head of department of cardiac surgery in King Edward Medical College I was asked to ‘present’ myself to the health secretary of the government of the Punjab. The ‘gentleman’ behind the desk said to me, “Doctor Sahib you have just come from America and I am sure you will return to America in six months”. Ironically, I served for almost seven years in KEMC/KEMU and during those seven years I saw about ten or so health secretaries come and go. There were a couple that did not even last a few weeks in that position!

I have nothing against all the decent and hard working bureaucrats. Many of them try to do the best they can often under extremely difficult circumstances. The problem is that in specialised departments like medicine, by the time a non-medical head of the Health Department gets some idea about how things work, he or she is replaced or transferred.

Interestingly, there are two separate parts of the healthcare bureaucracy and rural healthcare essentially is under the control of the Directorate of Health, government of the Punjab. And the Directorate of Health is headed by a doctor but unfortunately members of the permanent healthcare bureaucracy do not belong to the elite civil services and so do not have the panache or the connections to run their departments effectively. They are always under pressure from Health Department bureaucrats and politicians to make decisions about appointments and financial allocations.

And that brings me back to where I started from. The appointments in RHCs in Gujranwala are an important first. Over the last five years, the government of the Punjab has concentrated on building high profile medical institutes and medical colleges. But now hopefully the government has realised that strengthening the RHCs is more important. After all close to 70 per cent of the population of Punjab lives in rural areas and receives medical care from RHCs and the Basic Health Units (BHUs).

A quick primer albeit not complete about the RHC/BHU scenario is in order. There are over 400 RHCs in the Punjab. Each RHC has an ‘approved’ staff of at least four physicians, one dentist and about ten ancillary staff. Each RHC has anywhere between five and ten BHUs attached that have at least one physician and about four ancillary staff. Essentially, every ‘union council’ has one BHU. Besides the RHCs and BHUs, there are also Tehsil and District Hospitals and of course divisional medical centres.

Interestingly, all the RHCs were built in or around 1962 with USAID financing and no new RHCs have been built since then. That said, clearly there already exists an infrastructure that if developed and made fully functional can play an important role in provision of basic healthcare where it is needed the most and that is at the village level. Unfortunately, this system has been neglected over the last many decades. Of all the existing RHCs, most ‘educated’ estimates suggest that roughly a third do not work at all, a third work partially and only a third work properly and at full capacity.

In the ones that do not work at all, often the physicians and their staff just don’t come to work but collect a salary. Of the ones that only work partially, it is often that a full staff, medical supplies and adequate equipment is not available. For instance a dentist cannot work without a functional dental chair, or physicians cannot perform minor operations or emergency surgical procedures like appendectomies or caesarean sections without working anaesthesia machines, anaesthetic medicines and appropriate operating room staff. And of course laboratories that provide basic blood tests, blood banking, X-Rays and ultrasounds among others are often just not available.

The BHUs provide basic ‘preventive care’. This includes immunisation, pre and post-natal care, nutritional support and education about ‘hygiene’. Clearly, the BHU is the first line of defence and the RHC the backup as far as primary healthcare and preventive healthcare are concerned. If these two can be made fully functional then besides improving basic health the pressure on regional medical centres and the tertiary care centres will be diminished.

I have said this before and I will repeat it most emphatically, instead of building big and expensive medical edifices for personal aggrandizement, it is definitely better to strengthen the RHC/BHU system and develop the Tehsil and District level hospitals to provide much of the relatively advanced medical care that, at present, is only available in big city medical centres.

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"Nay! man is evidence against himself. Though he puts forth his excuses." Holy Qur'an (75:14-15)

01.12.2013

Boon or bane of judicial system
Panchayats and jirgas could help provide inexpensive justice
to the people at grassroots level if brought under an organised system
By Rasheed Ali

Awais Ali Mait’s only source of income, a buffalo, has been stolen from his backyard, and he is in a fix what to do.

He retired from the Irrigation Department some years back, and has been living in the suburbs of Basirpur town of Okara district in Punjab. Being an honest and upright man, he has always tried to spend his life within his means.

Whatever money he got on his retirement from the government, he spent on building his house and marrying off his only daughter. Now he and his old ailing wife are living in their two-room red-brick house with a large backyard. He also bought a buffalo and a cow to make a livelihood by selling their milk.

However, the news about the theft of his buffalo came as a bombshell for him. The first thing suggested by almost all his neighbours was registration of a case against the thieves. But Awais Ali Mait knows well he cannot afford going to a police station. He knows that he will have to spend money for not only registration of an FIR (First Information Report), but also for pursuing his case. And even after spending of a few thousand rupees, there is no guarantee that the police will take any action on his complaint and recover his buffalo.

That is why the old, seasoned man decided to go to the village panchayat (council of elders) for the recovery of his stolen buffalo. Being an old dweller of the area, he could guess as to who could be the suspected thieves and which biradaries (clans) they might come from.

According to the panchayat rules, heads of the suspected biradaries were called. In the presence of a large number of the village people, the panchayat members asked the heads of suspected biradaries to declare on the Holy Quran that no member of their respective clans was involved in the theft of the buffalo. They were given some time to discuss the issue amongst their biradari members and then come up prepared to swear on the Holy Quran that all their biradari members were innocent.

It took almost two hours to discuss as to who had stolen the buffalo. All the heads had discussed the theft issue within their biradaries and one of them unearthed the truth. Awais Ali Mait could not get back the same buffalo, but another one, as a result of the panchayat decision. The real one had been sold out and the buyer had taken it to some other region, meanwhile. However, Mait is happy he got a buffalo without wasting any more money and is content with it, though he does not get as much milk from this buffalo as he used to get from the stolen one.

And now the story of another panchayat!

This panchayat was held in Chak 15 of Kacha Koh town, about 12 kilometres away from Khanewal city. The panchayat was called by a local landlord Raja Mehbub, who levelled serious allegations against Maryam Bibi about her character. The panchayat, under the influence of the landlord, ordered that Maryam, the mother of five, should be stoned to death.

Five men of the same village carried out the panchayat ‘verdict’ in her home in the wee hours. Her husband, Sarfraz, was allegedly abducted, reportedly on offering resistance. A horrific crime and shameless act on the part of any society.

When the incident was reported in the local press, the Supreme Court took suo motu action. Later on, the initial investigation revealed that Maryam Bibi was cutting grass in the fields of Raja Mehbub when he allegedly attacked her to submit to his sexual advances. She refused, making the landlord very angry. Resultantly, she had to die a very painful death.

The above two panchayat proceedings produced two poles apart results, and as many opinions also. There are a large number of people, including politicians and legal brains in the country, especially those with a rural background, who believe that the panchayat system is a good alternative judicial system which could provide the litigants with swift and inexpensive justice. Imran Khan, the chairman of Pakistan Tehreek-e-Insaf, said in his party manifesto that “A Panchayat System, with specific rules and regulations, would be introduced at the local level to perform primarily as arbitration forums and as Small Causes Courts.”

However, the other opinion is stronger and is advocated by a huge majority. In the past, various panchayat decisions were severely criticised. One such decision that was even highlighted by the world press was about the gang-rape of Mukhtaran Mai on the orders of a panchayat.

A study on judicial systems also called for abolishing quasi-judicial forums including panchayats and jirgas, special courts and tribunals, as those are against the constitution and tend to cause more harm than provide speedy and efficient justice. The recommendations were given in ‘A Study of Formal and Informal Legal Systems Prevalent in Pakistan’, conducted by the National Commission on the Status of Women (NCSW).

Anis Haroon, former chairperson of NCSW, believes that all cases should only be entrusted to the regular courts with full-time judges at the district level at the first stage. She says that parallel legal forums lead to prolonged litigation as, sooner or later, the disputes are taken up at the judicial forums. This leads to prolonged litigation and puts the litigants in a more adverse situation.

Anis Haroon says that the parallel legal system affected women the most. In a society where there is no regard for laws, this system creates chaos. She believes that jirgas and panchayats always end up giving a biased judgment and usually it’s the victim that receives the penalty.

According to Haroon, there are many, many more cases that go unreported. While some incidents do get reported in Sindh and the Punjab, violence against women has continued to escalate over the years. In 1993, the jirga system was formally abolished in Balochistan but, unfortunately, it continues to date due to the Sardari system.

However, Lubna Mansoor, regional director Punjab, Ministry of Human Rights, Pakistan, does not agree with Haroon’s viewpoint fully. She believes panchayats and jirgas could help provide cheap and inexpensive justice to the people at grass-roots level if brought under an organised system and manned by educated and sensible people.

Talking to TNS at her New Muslim Town office in Lahore, Mansoor admits that majority of verdicts given by the panchayats and jirgas in the near past have been damaging for the helpless including women and favourable for the influential. However, she believes that if the panchayats and jirgas are made part of the judicial system, they could produce good results and deliver. However, enhancing literacy rate and creating awareness among the people is a prerequisite, Lubna Mansoor says.

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"Nay! man is evidence against himself. Though he puts forth his excuses." Holy Qur'an (75:14-15)

Money-making again
Tax amnesties in Pakistan have invariably failed to broaden the tax net. What is the recent Incentives Package aimed at?
By Dr Pervez Tahir

As always, all parties were seen to woo the undefined “common man” during the last elections campaign. Each party, however, has its core constituents. Once in power, their interests are served through policies rather than promises. The PML-N’s core constituents are those in the business of making money — a lot of money. It had to appease youth as a reaction to the PTI’s appeal to this emerging bulge in our population. Packages for them were announced first. These were in the nature of promises to spend some public money, from the coffers of the government as well as the vaults of the banks. This irritant out of the way, the time was nigh to pick up the pieces from where the party had been booted out in the last year of the twentieth century.
The Cabinet Committee on Privatisation has already announced that business is not the business of the government. Towards the end of the last month in Karachi, the business hub of the country, tycoons and “Capones” were gathered to reaffirm the pledge: What is good for the business is good for the country. An incentives package was announced to free the business from the scrutiny of a tax machinery which is already serving as its B-team. The shamefully low and flat tax to GDP ratio speaks volumes for this connection.
A disturbing part of the package is the reinforcement of privilege for the elite. Immunity from audit and scrutiny of bank accounts go against the PML-N’s pronouncements to end the VIP culture.
There is no doubt that a high and sustained rate of investment is crucial to the achievement of a high and sustained GDP growth in an economy like Pakistan. It is also clear that the private sector has to take the lead. In the PML-N’s view, the private investor is constrained mainly by its reluctance to let the secret out on the sources of its financing. That is why a larger GDP is produced by the underground economy. In its first tenure, the party had adopted a ‘No Questions Asked (NQA)’ strategy. It did create a feel-good environment for money making. Fiscal years 1991-92and 1992-93 witnessed rates of investment above 20 per cent of the GDP. By its second tenure, the NQA strategy had lost its vigour, as it must, being an abstraction from the rule of law.
1998-99 was the last complete fiscal year of the second tenure of the PML-N government. According to the Annual Report of the State Bank for 1999-2000, GDP growth in that year was 3.1 per cent, fiscal deficit stood at 6.1 per cent and the current account deficit at 3.9 per cent. Total debt was almost equal to the entire GDP — 99.8 per cent, 52.6 per cent being foreign. Total investment was 14.9 per cent, down from 17.9 per cent in 1996-97. Inflation at 5.7 per cent signaled an economy in decline rather than stability. This was the outcome of a system woven around overt fiscal concessions and covert tax evasion.
Privileges and connections rather than a level playing field paved the way to investment. Defaulting on loans was perfected into an art form. Informal money pumped into quick-yielding activities disappeared as soon as its political patrons left the field.
Tax amnesties in Pakistan have invariably failed to broaden the tax net. Instead of tax reform, most governments in their first year, and the last one in its last year, tried this easy option. There is a moral hazard issue here. Wealth owners sit tight on what they have for better returns in the next amnesty. The real issue is documentation which the businesses resist till death. In opposition, the PML-N blocked the imposition of reformed GST precisely because of this. Businesses dislike a tax that though passed on to the consumer yields information for the tax authorities on their own taxable income.
A significant feature of the incentives package is that monitoring and implementation is not left to the corrupt and intrusive tax man. The decision is that the leader should directly look after his constituents. A Business Advisory Council under the prime minister will meet every second month to secure the intended outcome.
The latest package departs from the past NAQs in that the laundered money is required to be invested in new or expanding undertakings set up on or after January 1, 2014. No limits have been prescribed. To ensure that it is not jobless investment, every five million invested must create one job.
While there is a negative list of ineligible investments and sources, the eligibility of the presently profitable fields occupied by friends and relatives have been specially mentioned. These include captive power plants, low cost housing construction and livestock in the corporate sector. Mining and quarrying in Thar, Balochistan and Khyber Pakhtunkhwa have been added to give a sense of participation to the smaller provinces. The chance that the whitened investors would come running for “koiley ki dalali mein munh kala” is next to nothing. The announcement of an Agricultural Advisory Council was also a balancing act. Corporatised livestock is the only area of interest in agriculture sector.
Other than the already barred industries of arms, ammunition and explosives, the negative list consists of old established industries such as fertilizers, sugar, cigarettes, aerated beverages, cement, textile spinning units, flour mills, vegetable ghee and cooking oil. I thought the idea was to diversify investment although the eligibility of textiles other than spinning is likely to work against it. Textiles share in the world trade and Pakistan’s share in the world textile trade has been declining. What has not been declining is the lobbying power of the textiles sector, which continues to be the largest player in manufacturing. The official explanation, given in a clarifying statement, is that the excluded sectors either have “excess capacity,” which is fine, “or are anti-social”, which is ridiculous.
Many would describe the whole scheme as anti-social. In the globalised world, domestic investor is not the only player in the field. Business conditions and regulations have to conform to the international morality of investment. This morality has undergone a sea change since 9/11.
There is, for instance, no room for the infamous Foreign Exchange/Currency Bearer Certificates issued in the earlier tenure. Transparency, accountability, disclosure and a new ethic are its essential element. Perhaps to reflect this change, the package denies immunity to proceeds of crime relating to offences under Narcotic Substances Act 1997, Anti-Terrorist Act 1997 and Anti-Money Laundering Act 2010. The provision, to say the least, is meaningless in an NQA strategy.
A disturbing part of the package is the reinforcement of privilege for the already over-privileged elite. Access to VIP lounges, fast track immigration, gratis passports and generous baggage allowance and, worst of all, immunity from audit and scrutiny of bank accounts go against the PML-N’s pronouncements to end the VIP culture. Or is it merely a passion of the younger Sharif!
In conclusion, one notes with regret that the political culture of promising one thing and doing the opposite continues. Look at what the PML-N’s manifesto promised: “We recognize that in order to improve the overall taxation environment, documentation of economy is fundamental. Once the documentation process is successful, the informal economy can be brought into the tax net and the tax base rationalised to broaden the tax system.” Most unequivocally, the manifesto declared: “Steps will be taken to ensure elimination of money-laundering and whitening of black money.” Perhaps, the prime minister never read the manifesto!

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"Nay! man is evidence against himself. Though he puts forth his excuses." Holy Qur'an (75:14-15)

08.12.2013

The ambiguities surrounding education
Standardising culture or civilisation is a perplexing proposition in a country with myriad cultures, civilisations and sub-sets of belief systems
By Tahir Kamran

Salim Mansur Khalid is a selfless and well-meaning soul. In this age of self-glorification and ostentation, Khalid is a freak — extremely modest, erudite and very sure of his ideological preferences.

For seven years, we were colleagues at the F.C. College in Lahore. Despite being polar opposites on the political spectrum, our relationship remained unimpaired. The Jamaat-e-Islami was his passion and I, though caught up at that stage of my life in political ambivalence, was quite sure of my abiding indifference for the Jamaat.

Our relationship, based on mutual respect, never waned.

Though he taught (in fact still teaches) Punjabi literature, he was passionate about political movements and education. The book that he compiled on madrassa education in Pakistan contains an invaluable wealth of information and insight not only for academics but for lay readers too.

Just a few days ago, while surfing e-resources, his article ‘Pakistan: the State of Education’, published in the quarterly The Muslim World, caught my sight. M. Fayyaz Khan from the Institute of Policy Studies, Islamabad is the co-author of this article. A constructive critique of that article forms the central aim of this column — which may enable us to dust the cobwebs off our minds regarding the education system.

The ‘nation’s belief system, culture, civilisation and (national) values’ are the fundamental objective of the education system. This assertion is based on assumptions far removed from reality. Pakistan has myriad cultures, civilisations and sub-sets of belief systems and in such circumstances, standardising culture or civilisation is a perplexing proposition. We have already seen the disastrous impact of standardisation in the form of the cession of East Pakistan.

The evolution of culture and civilisation invariably has a different trajectory vis-à-vis the belief system. This belief system, too, evolves but at a different pace. Thus, culture and belief system, more often than not, find themselves in the state of confrontation. A belief system becomes a strength for a society only when it is amenable to culture — which happens only rarely. Given this extremely complex situation, it may become a perplexing task to specify the exact configuration of any civilisation in our part of the world.

Here, one must not lose sight of the fact that ‘civilisation’ as a social category was introduced to us by the western academia in the 19th century.

Besides, the concept of education as a public good, and therefore a right of all citizens, is a modern concept which gained currency only in the wake of the industrial revolution. Importantly enough, an individual came to be re-defined as an instrument for economic enhancement in an age of industrialisation, for which proper instruction was a sine qua non.

Another aim of education was to ‘discipline’ the individual, in the Foucauldian sense, into a submissive (read ‘law-abiding’) citizen. Thus, imparting of education was made obligatory, and citizens were disciplined through ‘law’, not through culture or civilisation. ‘Culture’ and ‘civilization’, as discursive categories, were used by the colonial powers to define the colonised people — the carrying out ethnographical surveys.

While tracing the historical background, in the pre-Muslim period in India, Brahmin dominance has been highlighted. It is a fact that cannot be denied. But often authors commit a faux-pas when they refer to it as the affirmation of a ‘class system’. It ought to be pointed out that the dominance of the Brahmins was the affirmation of a ‘caste system’ rather than a ‘class system’.

The same was the case in the Muslim-Indian society. The Ashraf, or the ruling elite, of the Muslims of non-Indian origin had the privilege of education. Ajlaf, or the local converts to Islam, mostly remained bereft of education. The introduction of Persian as an official language served as an impediment for the universal dissemination of knowledge in the subcontinent. Subsequently, Hindu Kaisths learnt this language and became valuable to the Mughals as court officials.

The fact remains that indigenously produced knowledge, which could only be channelled through local languages and dialects, slowly percolated into the epistemic mainstream. Such knowledge was articulated by Sufi poets and tazkaras in the medieval age.

With the advent of the British, however, the local system(s) of knowledge were consigned to the margins. Punjab, in particular, was the most unfortunate region in this particular regard. The introduction of English provided a fresh lease of life to class differentiation. English replaced Persian as a symbol of prestige and status, the privilege that it epitomises even to this day.

The authors of the article have also broached the issue of the medium of instruction — calling for English to be replaced by Urdu. That, according to them, will act as the most effective antidote against an education system which foments class-difference among the populace.

This assertion is worth pondering on. But the problem that the state authorities might confront is two-fold: The first concerns the capacity of Urdu to act as a viable substitute to English as a medium of instruction — can the sciences or even social science be effectively taught in Urdu or is Urdu prose developed enough to do what is required? One must take a dispassionate view of the range of vocabulary that Urdu currently possesses. The second concern is the acceptability of Urdu among different ethnicities. Unfortunately, Urdu has come to be perceived as a cultural signature of the Punjabis, which has never served Urdu well.

The thorny nature of these concerns must be appreciated before making any recommendations.

At the end of the article, the authors have furnished 10 suggestions which are extremely valuable and should be taken seriously by those in the saddle.

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"Nay! man is evidence against himself. Though he puts forth his excuses." Holy Qur'an (75:14-15)

08.12.2013

Gains and losses
The ICJ report has touched upon the major themes that legal commentators within Pakistan have been advocating for years now
By Saad Rasool

This week, as Iftikhar Muhammad Chaudhry retires from his Constitutional position as the Chief Justice of Pakistan, the International Commission of Jurists (ICJ) have published a report, called “Authority without Accountability”, which attempts to analyse the gains and losses that have resulted from the jurisprudence of the apex court over the past some years. The ICJ report, a total of 100 pages long, reviews a series of judgments of the honourable Supreme Court, under the stewardship of Iftikhar Muhammad Chaudhry, in order to assess “the Supreme Court’s efforts to bring accountability to a government and military that have long failed to protect and respect the rights of millions of people in Pakistan.”

From a structural perspective, the ICJ report starts with an introduction of the “International Legal Framework” that governs the fundamental rights discourse in Pakistan, along with a historical perspective of the country — outlining successive military coups, followed by the removal of judges by General Musharraf in 2007, and the Lawyers Movement culminating in the restoration of the deposed judges. In so doing, the report correctly points out the historically complicit role of Pakistan’s judiciary in validating military intervention, under the now discarded Kelsenian idea of ‘doctrine of necessity’.
The non-sectarian, and even pan-religious, nature of the appeal of Hussain is also remarkable in bringing together people from different viewpoints.

With the swearing-in of Iftikhar Chaudhry as the Chief Justice of Pakistan in 2005, the report observes that the court, “almost immediately”, started showing signs of judicial independence, and resistance to the military regime. This observation, however, is perhaps incorrect in light of historical facts. While it is true, as pointed out by the ICJ report, that in 2006 the honourable Supreme Court, under the leadership of Iftikhar Chaudhry, took a bold step in blocking the privatisation of Pakistan Steel Mills Corporation, but it cannot be denied that the honourable Chief Justice, and his court, until early 2007 was deferential, to a large extent, to the military ruler and the GHQ.

Having been sworn in on the PCO, the court, despite its wide and sweeping powers of judicial review, did not take any tangible steps to undo the unconstitutionality of Musharraf’s regime. The court and the military regime existed and functioned in a symbiotic relationship. In fact, it was only once the Chief Justice was removed from his office, in March 2007, that court’s ‘resistance’ surfaced. And the real vigour and passion of judicial oversight of executive actions did not gain momentum till after restoration of the judges in March of 2009.

Having laid out the historical context of Iftikhar Chaudhry’s resurgent Supreme Court, the ICJ report proceeds to analyse and discuss three major aspects of its jurisprudence: 1) The Supreme Court’s interpretation of Article 184(3), 2) The honourable court’s human rights record, 3) Ancillary issues arising out of the “expansive use of original jurisdiction”.

In terms of the first — the court’s interpretation of Article 184(3) of the Constitution — the report begins by describing how Pakistan’s Constitution, unlike most other Constitution (except India), allows “any party” to approach the Supreme Court in regards to matters concerning “public importance”, and that also allows the apex Court to take cognizance of such matters in exercise of its “suo moto” jurisdiction. There is no requirement of an “aggrieved party” establishing a “locus standi” in such cases.

The ICJ report, combing through select judgments, including the Memogate and OGRA case, points out that while the honourable Supreme Court, under Iftikhar Chaudhry, has shown considerable impulse to invoke Article 184(3), no clarity has been provided by the court on what exactly constitutes the idea of “public importance”, or when exactly does a matter concern “fundamental rights”, warranting the use of Article 184(3). This lack of clarity, the report opines, lends an air of arbitrariness to the exercise of Article 184(3), by the honourable Court, and in the process erodes confidence in the dispensation of justice.

Specifically, the ICJ report places reliance on the Arsalan Iftikhar case to demonstrate the problem: in the said case, the honourable court first took cognizance of the matter (relating to Arsalan Iftikhar and Malik Riaz), as a suo moto case, arguing that it casts aspiration on the independence of judiciary and is therefore a matter of “public importance”. Thereafter, the court dismissed the matter, to be taken up by a competent investigative agency, on the bases that the issue concerns two private individuals and thus is not one of public importance. When Arsalan Iftikhar approached the court once again, in review jurisdiction, claiming that the government investigation (by NAB) is not ‘independent’, the court “agreed to review its earlier order when it had already decided the matter was not of public importance and thus not within the purview of its jurisdiction under Article 184(3)”.

Turning its attention to the second issue — the human rights cases — the report lauds the efforts of the honourable Supreme Court in attempting to take on an increasingly large number of cases where fundamental rights of hapless citizens are being violated. To this end, the ICJ report discusses and lauds the court’s interference in the case concerning public lynching of two brothers in Sialkot, shooting of Sarfraz Shah in Karachi, and those relating to acid violence and rape victims.

However, the report also highlights the limitations of the honourable court’s success in regards to other human rights cases, specifically those dealing with the issue of missing persons. Narrative of the report explains that while the court has tried to ensure the recovery of missing persons, the military and intelligence establishment has been, for the most part, successful in defying the Supreme Court. To this end, the report alludes towards the idea that the honourable court has stopped short of taking the steps necessary to bring the military and securities agencies within the fold of law and the Constitution.

Finally, addressing the third issue — consequences of the expansive use of original jurisdiction — the ICJ report also points out that the apex court’s obsession with the exercise of Article 184(3), and the time that such politically sensitive cases take in terms of disposal, has created an “unsustainable workload and backlogs in the Supreme Court”. Also, the use of Article 184(3) by the Supreme Court to pass prima facie strictures against concerned individuals, prejudices the ability of trial courts to conduct subsequent dispassionate proceedings, and violates accused’s right to fair trial (Article 10A of the Constitution).

Furthermore, the report concludes that in several cases — including challenge to the legitimacy of the Balochistan government, supervision of NAB investigations, and matters concerning ECP — the apex court’s use of Article 184(3) has gravely violated the precarious balance of Constitutional separation of powers.

The ICJ report, while less than thorough in its analysis of all issues concerning the Supreme Court today, has still touched upon the major themes that jurists and legal commentators within Pakistan have been advocating for several years now. The struggle for ‘rule of law’ in this country, which started with the fabled movement of the lawyers in 2007, has gone awry somewhere along its journey. Fidelity to the idea of rule of law necessitates that, while recognising and appreciating the gains made by the honourable court over the past years, we also critique (with aim of reform) the trajectory of our jurisprudence.

As the legal fraternity and the Supreme Court look past the tenure of Iftikhar Chaudhry, we must be truthful to ourselves and our constitutional ethos, and together — with hope and a renewed vigour — take on the endeavour of perfecting the project of justice in our land.

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"Nay! man is evidence against himself. Though he puts forth his excuses." Holy Qur'an (75:14-15)