The self-appointed custodians of the national interest have been outraged at the temerity of the self-appointed custodians of the constitution and the petulance of the self-appointed custodians of the public interest.
The self-appointed custodians of the constitution have been shocked that anyone could upbraid them for upholding the constitution without fear or favour.
And the self-appointed custodians of the public interest — those paragons of virtue who hector and lecture and preach from their televised bully pulpits each evening — cannot believe anyone could question their motives or intentions.
There is a word to describe it all, but it’s probably best not printed in a family newspaper.
What does it all mean?
It’s a strange world in which everyone is clamouring to be the target of an army chief’s wrath.
In eras past, a sidelong glance or a misspoken sentence by the chief would have had folks preparing their resignation letters or reaching for their passports.
Not anymore.
He meant me! No, he meant us! No, no, we were the targets!
The ostensible targets are squabbling over who was the main target.
Rule No 1: when folks argue over who was the primary target, look elsewhere for the primary target.
The army high command has two principal constituencies: the rank and file and the public at large.
In the best of worlds, both can be kept happy simultaneously. In the not-so-elegant Pakistani universe, keeping both happy simultaneously isn’t always possible.
The armed forces are restless. They are being barracked and shellacked like never before. If the army were running the show directly, they would understand to some extent. If the army were overtly interfering in politics, they’d take it on the chin.
But it’s a new world out there. The old order is crumbling, the locus of power is shifting and the army is feeling harassed and aggrieved. They’re just trying to do their job — defend Pakistan — but no one seems to understand.
Steps up the chief to reassure his skittish tribe. I’m here, I’m on your side, I’ll stand up for all that is great and good, i.e. us.
If that means a swipe or two against other institutions and pillars, so be it. To the skittish armed forces, swipes against others are the kind of red meat they crave.
Talk tough and you look tough, and looking tough is hardwired into the military psyche.
But that’s also why everyone else has almost gleefully leapt on the chief’s words and claimed they were meant for them.
For words are not actions and without actions, everyone else senses impotence.
Show us what you’ve got, the media has taunted and the court has almost roared, guessing that blanks were fired to please the army’s principal constituency.
More curious has been the PPP’s response, of which two distinct strands were discernible the past week.
One camp argued the party had been kept in the loop by the chief, a signal that this wasn’t about the PPP and the government but about the robes and the preachers on TV.
There was almost smug elation in this camp, like schoolyard victims who’ve discovered the big, bad bullies have turned on each other and left the victims to walk off with the prom queen, in this case a clearer path to re-election.
When your enemies fight among themselves, they’re less likely to see you as the enemy.
The other camp was eyeing Balochistan warily, sensing a dry run there for bigger things on the national stage.
The sparring between the army and the court is a sideshow, according to this PPP camp. Instead, the Balochistan template is seen emerging:
Army keeps security situation messy by eschewing the political for a military approach; court pounces on mess to declare government has lost its writ; next step: wrap up government and install an efficient and establishment-friendly government.
Take the testing of the judicial waters in Balochistan and magnify it to the national level and you end up with that rumour that just won’t die: an extended caretaker set-up, with elections postponed.
Convoluted? You bet.
But it hints at the undercurrents everyone knows exist, though few know which direction they’re pulling in.
Elections have a way of unsettling everyone here. Last year, around this time, the Senate elections were on the horizon and the speculation and rumours began to grow.
Somehow, somewhere, something would happen to prevent the Senate elections from being held on schedule.
If the Senate was a prize worth winning — or, conversely, denying — and hence the speculation and uncertainty in the run-up to the Senate elections, a general election is of an order of magnitude greater.
Surely, the great unseen and the unknown would not countenance a hammer blow. PPP wins, PML-N wins, whoever wins wearing a civilian cloak, the establishment loses.
The Mehrangate judgment has laid bare just how terrified the swaggering men in uniform were of a girl with a voice and with the people behind her.
Two decades on, a full civilian term leading to an election with another full term a possibility — the beast may have grown weak but its instincts will be the same: civilians win; establishment loses.
Since the past informs the present, at least in terms of perception, the uncertainty will grow as a general election inches closer. And so will the howling and the bickering and the confusion.
But there is a problem: the closer the election draws, the less time there is to engineer a derailment.
Even in the land of perma-crisis, some crises need time to gestate if the inevitable is to be delayed.
And time is running out.
Still, the rumour mill is quietly throwing out a date: watch out for January.
But it may already be too late.
An on-time election looks about as likely as anything can be in this land of unlikely events.
The writer is a member of staff.
cyril.a@gmail.com
Twitter: @cyalm
Published in Dawn, November 11th, 2012.
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Well-known historians have all maintained that to Jinnah the Muslims of undivided India were a separate cultural entity requiring their own homeland.
Jinnah’s desire to see this through was born from his awkwardness with the idea of a post-colonial India subjugated by the ‘Hindu-dominated’ Indian National Congress: even though the Congress was almost entirely secular.
However, there is absolutely no evidence that Jinnah’s push to carve out a separate Muslim country was made in order to construct an Islamic state.
For years Pakistanis have debated about how Jinnah went about claiming Pakistan. Was he able to think it through, or did he fail to perceive the vulnerability of his claim?
Many also believe that his claim in this respect was too open-ended. That’s why it was easily exploited by some who eventually turned it into a monolithic entity and a militaristic bastion of Islam.
It is ironic that the first Pakistani head of state to sincerely try to realise Jinnah’s concept of Pakistan was a military dictator. Field Marshal Ayub Khan’s regime (1959-69) still remains perhaps the most secular in the country’s history.
Apart from, of course, sidelining the democratic aspects of Jinnah’s concept, Ayub otherwise went about defining (through legislation) his understanding of Jinnah’s Pakistan.
To him it was about a secular Muslim majority state sustained by the genius of entrepreneurial action, a strong military, and the spirit of modernistic and progressive Islam of the likes of Sir Syed Ahmed Khan, Iqbal and Jinnah.
However, in a naturally pluralistic society like Pakistan with multiple ethnicities, religions and Islamic sects, if one takes out democracy from the above equation, one would get (as Ayub did) ethnic strife, religious reactionary-ism and class conflict.
The class-based and multi-ethnic commotion in this respect opened windows of opportunity for well-organised leftist groups who were not only successful in forcing Ayub out (1969), but they also eschewed the religious opposition to the Field Marshal’s government.
Left parties like the Pakistan People’s Party (PPP), National Awami Party (NAP), and student groups like the National Students Federation (NSF), in the former West Pakistan, achieved this by attacking Ayub’s ‘pro-rich policies’ (state-facilitated capitalism), and, on the other hand, neutralised the Islamic fundamentalists by adding a new twist to Jinnah’s image.
For example, the PPP advocated Jinnah to be a progressive democrat whose thinking was close to the ideas of ‘Islamic socialism’ first purported (in the region) by such leaders of the Pakistan Movement, as Chaudhry Rehmat Ali, and Iqbal.
After the breakaway of East Pakistan in 1971, and the coming to power of the PPP (led by Z A. Bhutto), the authoritarian centre-right secularism of the Ayub era (and concept of Jinnah), moved towards the populist left.
But the Bhutto regime was highly mutable. Though it remained populist, it regularly shifted from left to right on an issue to issue basis.
A study of Jinnah’s quotes used on state-owned media of the period suggests a regime trying to push Jinnah as a democrat who was not secular in the western sense, but a progressive Muslim whose faith was pluralistic in essence and ‘awami’ (populist).
Such quotes, that became a mainstay just before the main 9pm news bulletin on the state-owned PTV, suddenly changed track when Bhutto was toppled in a reactionary military coup by General Ziaul Haq (July 1977).
From 1977 onwards, no more was Jinnah being bounced between Ayubian secularists and Bhutto’s Islamic Socialists. He now became the property of the ‘Islam-pasand’ (pro-Islamic state) lot.
PTV and Radio Pakistan were ordered to only use those quotes from Jinnah’s speeches that contained the word ‘Islam’.
A concentrated effort was made to remould him into a leader who conceived Pakistan as an Islamic state with a strong military.
In 1978, the order of Jinnah’s celebrated motto, ‘Unity, Faith, Discipline,’ was reshuffled to put the word ‘faith’ first instead of the middle.
Then Zia’s information ministry suddenly unearthed a diary kept by Jinnah in which he had supposedly expressed his desire to see Pakistan as a country run on Islamic laws (instead of democracy), and emphasised the political and ideological role of the military. The diary turned out to be a desperate forgery.
Also, Jinnah’s August 11 speech was expunged from the school textbooks, as if it never existed.
By the end of Zia’s dictatorship (1988), Jinnah had been turned into a pious, 20th century caliph of sorts who presided over the creation of a ‘citadel of Islam’.
However, a decade later during the self-contradictory military dictatorship of General Parvez Musharraf: who was advertising himself as an updated version of Ayub Khan: Jinnah was made to slightly shed the facial hair that Zia had hung on him. Jinnah now became an enlightened moderate.
But Jinnah’s emergence of (now) becoming a moderate Muslim, at once clashed with his more pious, quasi-Islamist image that was cultivated for more than a decade by the Zia regime. This reignited the debate about exactly who or what Jinnah really was.
Today, with Pakistan facing the deadly spectre of Islamist terrorism, growing societal conservatism, a free (and somewhat anarchic) media, an activistic judiciary and the steady resurgence of the secular Muslim intellectual: all trying to figure (or refigure) Jinnah, something unprecedented happened.
Not since the Ayub dictatorship and during the early years of Bhutto’s government has a mainstream political party openly described Jinnah as a progressive, secular Muslim. But recently the Muttahida Qaumi Movement (MQM) did just that.
Well, this means at least in Karachi, the Jinnah who wanted a progressive, secular and democratic Muslim majority country is back. And this time he’s not confronting grumpy Islamic parties, but a monster that not only considers him a heretic, but a majority of Pakistani Muslims too.
Published in Dawn, November 11th, 2012.
As I write these lines, my home is an ice box: chilly, dark and silent. The only sound coming out is the protesting beep from the cellphone announcing imminent death with its battery ready to die. Let it die, I say to myself. What’s the use of a cell phone when it does not work? The landline does not work; the television does not work; the internet does not work; the laptop does not work because its battery is down. The food in the freezer is thawing at the speed of lightning screaming out for urgent care.
Chucking it out is the safest, unless one wants to invite food poisoning.
So, what does work? Thankfully, we still have hot water in our faucets and gas in our cooking range. Cooking and bathing are two activities that lift life a little.
Driving around town scouting for cafes like Starbucks that offer Wi-Fi or ‘hotspots’ where Wi-Fi is available consumes half the tank in the car. If the petrol finishes we are stranded. We are told petrol is available but is being rationed. The gas stations in our area are shut because the power is down. Minutes before we lost power on Monday evening when Hurricane Sandy made a landfall some miles away from where we live in New Jersey, we pulled up the garage door and got the car out. It’s electronically operated. Our neighbours did operate their garage doors: “you pull the string hanging in the garage. It will disable the electronic connection,” we were told. Having lived here for a decade, we still don’t know the ins and outs, to put it simply. For example, I habitually push the light switch down as we do in Pakistan. But in the US, it’s the reverse. When you want a bulb to come on, you push the light switch up!
When will power return? “It will be days before power lines are restored,” the officials had warned before the monster storm hit. I find this strange. In Pakistan if the power is down for more than 24 hours, one creates such a ruckus, making the fellow at the receiving end answering phones for the electric company feel like a heel.
The Americans don’t protest. They suffer in silence.
Natural calamities like Hurricane Sandy may not be common, still they strike, kill, and destroy leaving man and technology powerless. America can land a vehicle on Mars and monitor its movements as it roves the planet, but it cannot fix its power lines that fall easy when harsh wind comes calling.
Trees, old beautiful trees, gorgeous in summer and breathtaking in autumn with their leaves turning gold, crimson and amber, suddenly become man’s worst enemy.
They crash on homes, roads, cars, people and electric lines. As I drive around, huge trees lie uprooted everywhere. Imagine it takes decades for them to reach their verdant glory; but seconds for them to fall and surrender to the might of the wind.
Americans are planners: they don’t move without their schedules. They are calendar-centric. “Let me check my calendar if I am free,” they say when you invite them for coffee 10 days in advance. They plan their vacations a year in advance and make their airline and hotel bookings accordingly. Their lives are programmed and run on a well-considered plan. I have always admired this habit, something we Pakistanis are not given to. We don’t like a daily, monthly or yearly schedule. We let life flow and live without a timeline or a timeframe. Why stress? We say. Take each day as it comes. Well, that too makes sense. What tomorrow brings, none knows.
Americans didn’t know that Hurricane Sandy would arrive a week before the presidential elections, washing with it all the elaborate planning, TV ads and last minute canvassing by Obama and Romney camps. President Obama had moved his ‘heavy artillery’ Bill Clinton to accompany him on a whirlwind tour of states crucial for his victory.
Fate had other plans.
Hardest hit are the TV channels that made millions during this year and would have piled up some more in the last one week when Obama and Romney’s final surge to bombard viewers would have occurred.
While Mitt Romney has blasted President Obama for a ‘big government’ Hurricane Sandy has proven Romney wrong. It is the government that has come to the rescue of its citizens facing widespread death, sickness and destruction. Rescue workers were on red alert and worked around the clock to respond to calls for help during this time.
The mayor of our town called us a day in advance announcing a shelter that had been set up, where we could go and seek refuge if our homes and lives were threatened.
It’s called a ‘warming and charging’ station. People go to charge their cell phones or laptops or to warm themselves. We did visit the shelter and was amazed with its efficiency. Polite and smiling attendants met us, showed us the coffee and bagel stations, pointed to the electric outlets where we could charge our phones and laptops.
The place was brimming with seniors. They seemed to be having a party. Warm, cozy and comfortable, some planned on checking in for good.
The shelter was later moved to a school auditorium where they had put up cots, pillows and blankets for people to spend the night.
The government is compassionate, kind and caring. It may not be able to restore power even long after it goes, but can extend all possible help should one be in need.
The rising death toll caused by catastrophic flooding and destruction of entire neighbourhoods, and billions of dollars in property damage is what Hurricane Sandy has left behind. It is being called the ‘Storm of the Century’ but floods, droughts, heat waves and storms are only expected to get worse: with every part of the world facing deadlier and costlier weather disasters, say weather pundits.
New York Mayor Michael Bloomberg had endorsed President Obama as president for another four years because both believe in the effects of climate change. The billionaire mayor said that Hurricane Sandy had reshaped his thinking about the presidential campaign and that as a result he was endorsing President Obama.
The president responded with a pledge: “He (Bloomberg) has my continued commitment that this country will stand by New York in its time of need. And New Yorkers have my word that we will recover, we will rebuild, and we will come back stronger.”
anjumniaz@rocketmail.com
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What do the generals want? The Pakistan Army, like all other institutions, is a pyramid. But the Pakistan Army, unlike any other Pakistani institution, is the only Pakistani institution where soldiers rise from within to become commanding generals purely on the basis of merit. This military pyramid rests on two pillars: respect for the chain of command and the confidence of Pakistanis in their armed forces.
As of right now, Pakistan Army’s two serving generals, 22 serving lieutenant generals, 150 serving major generals for a total of 620,000 Pakistani soldiers are in a state of war. This is the longest – and the bloodiest – war that the Pakistan Army has ever fought. This war has multiple fronts – Tirah Valley, Shawal Valley, Wana, Miranshah, Mir Ali, Swat, Sararogha, Bajaur, Orakzai, Khyber and Kurram. This is a war where the distinction between a combatant and a non-combatant is blurring. This is a war where the distinction between a soldier and a civilian is blurring – even the distinction between war and politics is blurring. This war truly has all the characteristics of a 4G war.
Then there’s India with its ‘cold start military doctrine’. Then there’s the Indian army with its ‘Order of battle’, whereby at least half of all Indian army corps are stationed within a striking distance from the Pakistan-India border. The Indian army’s XV Corps with two infantry divisions in Srinagar, XIV Corps in Leh, XVI Corps with three infantry divisions, an artillery brigade and an armoured brigade in Nagrota, X Corps in Bhatinda, XI Corps in Jalandhar, IX Corps in Yol and II Corps in Ambala.
Remember, generals around the world respond to ‘capacity’ not ‘intent’. Pakistani generals look at the Indian Army and see its inventory of 6,384 tanks as a threat (since none of those Arjun MBTs can cross the Himalayas into China, they must all be for Pakistan).
Pakistani generals look at the Indian Air Force and see its inventory of 672 combat aircraft as a threat. Pakistani generals look at the Indian Army and find that XV, IX, XVI, XIV, XI, X and II Corps all pointing their guns at Pakistan. The Pakistani generals look at India’s 4th Armoured Division, 12th Infantry Division, 340th Mechanised Brigade and the 4th Armoured Brigade deployed to cut Pakistan into two halves.
As of right now, the Pakistan Army is fighting a deadly 4G war within and must, at the same time, stand prepared to defend Pakistan from the 3G threat from the east. In essence, the Pakistan Army is fighting at three different levels – physical, mental and moral. To be certain, the Pakistan Army cannot win on the physical battlefield unless it also wins the mental combat, the ‘will to fight’ and the ‘belief in victory’.
So, what do the serving generals want? The same thing that any serving general in a state of war would want – support from all other pillars of the state. So, what do the Pakistani generals need to guarantee the longevity of the Pakistani state? The same thing that any serving general in a state of war needs – esprit de corps, sense of unity, commonality of interests plus chain of command and the confidence of the public on the military.
As of right now, one retired general, five retired lieutenant generals and two retired major generals are on trial – both in the courts of the law and the media. What do the retired generals want? They don’t want to be convicted – either by the courts or by the media. Well, there shouldn’t even be any debate on this count – anyone who breaks the law must be held responsible and punished.
The writer is a columnist based in Islamabad. Email: farrukh15@hotmail.com
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Believe it or not, a decisive majority in Pakistan believes – or so it did over two months ago – that a car can run on water. I am referring to a Gilani Research Foundation survey conducted by Gallup Pakistan in the aftermath of that bizarre claim by a Khairpur engineer that he had invented a device to use water as fuel to run a car. Equally bizarre was the response he got in the mainstream media, the ripples of which even touched some members of the federal cabinet. We had experts who vigorously joined the debate on both sides of the argument.
That issue, like others that momentarily flare up in our headlines and talk shows, has quietly died down. So I have no intention of reviving that hullabaloo. Irrespective of what it was all about from a scientific point of view, the ordinary people must have formed their opinions on the basis of what they saw and heard in the media – including the social media.
My concern is only about the formation of the collective mind. What do we hear from, to use the Urdu expression, zaban-e-khalq and how is this message related to facts and to the dictates of wisdom and rationality?
Back to the Gallup survey, as an example. The question posed to a nationally representative sample of men and women from across the four provinces was: “Some people think that this car actually runs on water while some people think that it is a fraud. What is your opinion on this?” As many as 69 percent believed in claims about the water-run car, 10 percent claimed it was a farce and 21 percent were uncertain.
Incidentally, the survey was released on September 6 this year – on the Defence of Pakistan Day. With this kind of public opinion, questions may be raised about the task of defending Pakistan. In any case, I was reminded of this survey – and the same question may yield different answers now – when I had a longish ride this week in a car sent for me for a meeting. It was from some rent-a-car agency. It allowed me to have a long conversation with the driver, who hailed from some place in the tribal belt and said that he had also been a driver in Afghanistan.
No, he did not profess any strong sympathy for the Taliban but his entire discourse was so fanciful and laden with contradictory opinions that were forcefully expressed. It made me afraid about how people like him could behave in certain situations. I would not try to repeat what he said except that he also firmly believes that it is not the Quaid’s body that is resting in his mausoleum in Karachi.
My intention is not to speak ill of the people who can be persuaded to believe that a car can run on water. Essentially, they are all very brave and deserve our respect because they have to fend for themselves and their families in very treacherous circumstances. They have to eke out a pitiable existence in a system that is thoroughly corrupt and unjust. In fact, if you genuinely empathise with the poor and the socially deprived people of Pakistan, you may yourself go crazy. That they continue to survive should make them our heroes.
That their passions and their opinions and their worldview can be entirely warped because of their limited knowledge and experiences is something else. I sometimes move around crowded bazaars or visit such places as a public hospital or the lower courts or bus terminals and wonder what they, the wretched of the earth, may be thinking and feeling. Why should we expect them to be sane and rational? Yet, they are supposed to be the staple of our democracy and the final arbiters of what ideas and which individuals will govern this country. Apparently, these choices will be made elsewhere, not in the minds of the awam we are so fond of putting on a pedestal.
At one level, the failure of our rulers, our media, our judiciary and all other institutions that may or may not be contending with each other, is colossal. They have not been able to protect the fundamental rights of the very poor and the very backward segments of our society. Many of our leaders have romantic notions about the tribal ways that are essentially rather primitive.
Simultaneously, we are under attack by the forces of evil that have certainly been strengthened by distortions lodged in the Pakistani mind. Suicide attacks, mostly owned by the Taliban, have continued. Sectarian violence has increased. The attack on the Rangers building in Karachi on Thursday, considering its magnitude, is awe-inspiring. And the Taliban have promised more of the same. In addition, Karachi has been conquered by organised crime and violence.
In these circumstances, we should carefully explore the role that the popular media has played in not only shaping the minds of the ordinary people but also in highlighting the dynamics of widespread poverty and intimations of anarchy and systemic collapse. Here, I need to reiterate that we get so obsessed by politics that we have no time to look at the state of our society.
What we recognise as social media has enhanced the prevailing confusion about the import of various seminal developments. So much distortion and disinformation is bandied about by subversive elements that it becomes difficult to rouse public opinion on an urgent issue. Take the example of the Malala incident, which provided the rulers with an opportunity to take bold action against terrorism and religious extremism. But doubts have now been planted in the minds of the people about what it was all about.
It is not enough to grieve over the present drift. More crucial is to understand our moral and intellectual deprivations and take emergency measures to restore the equilibrium of our society. Our political leaders should seek assistance from academics and researchers and social critics to try to comprehend the challenges confronting Pakistan. Total attention, say, to the statement made by the COAS and to the observations made by the chief justice is bound to camouflage the problems that surround and sway the directionless mobs that our society has nurtured.
If battles are fought in the minds of men, we should worry about the battle that we already have lost in the minds of our ordinary people. What is arrayed in this battlefield is not contending ideas or ideologies but monstrous conspiracies and ignorant biases. The mind is also the repository of the sanity of a person. In that sense, have we lost our senses?
The writer is a staff member. Email: ghazi_salahuddin@hotmail.com
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As the curtain rises for the second Obama presidential term, the immediate foreign policy priority will be the smooth withdrawal of US-led troops from Afghanistan by the end of 2014 and ensuring that the insurgency-scarred country does not descend into complete chaos. There is no gainsaying the importance and centrality of Pakistan in this enterprise. It is undoubtedly in Islamabad’s own interest to skilfully employ whatever leverage it still has with the Afghan groups to persuade them to sort out their differences at the negotiating table, as only that will stave off the hideous possibility of civil war.
Last month, on Eid-ul-Azha, Mullah Omar issued a statement which commentators here believe indicated “important policy shifts.” None of them bothered to scratch the surface which would have demonstrated that, like all weak-minded men, the supreme leader of the Afghan Taliban lays an exaggerated emphasis on not changing his mind. He is convinced that, as the amir-ul-momineen (commander of the faithful), he is the undisputed ruler of Afghanistan for the rest of his life and any settlement of the conflict must be on his terms. This was the impression I gathered after several meetings with him from 1996 to 2000.
Those were fretful years in which I was involved in a shuttle mission aimed at persuading the Afghan groups to terminate their hostilities and agree on a mechanism for establishing a broad-based government reflecting the ethnic mosaic of the country. Some of these travels were life-threatening, and, on one occasion we survived narrowly as our aircraft was about to be shot down by the Northern Alliance over the skies of Mazar-e-Sharif. The incident was later recounted by Saleh Zafir of the Jang Group and Z A Qureshi of Pakistan Television who accompanied me on that eventful flight. Afghanistan has changed little since then, and the country continues to be ravaged by internal conflict.
In his Eid-ul-Azha message Mullah Omar has again affirmed: “We do not intend to grab power and nor, after the exit of foreign forces, [want to ignite] a civil war. Our efforts are centred on a political system that is in the hands of Afghans” free from external interference. This was more or less a rehash of his Eid-ul-Fitr message in August last year which was the most exhaustive statement he has ever made. In that message, which reads more like a papal encyclical, he announced: “The policy of the Islamic Emirate is not aimed at monopolising power since Afghanistan is the joint homeland of all Afghans,” and all citizens have the right to play a role in the “running of the country.”
Less than a month later, Burhanuddin Rabbani, the former Afghan president and the chief of the High Peace Council, was killed in Kabul by suicide bombers from one of the Taliban groups. His grief-stricken daughter, Fatima, reminisced how tragically ironical it was that only a week earlier, her father, a mild-mannered professor of theology, had attended a conference in Tehran on “Islamic Awakening” where “he had appealed to the ulema (religious scholars) to issue a fatwa (decree) against suicide bombings.”
The assassination, despite Mullah Omar’s assurances that he had no intention of “monopolising power,” is just one of many instances that shows how fractured the Taliban movement has become. Commanders act independently and ignore the orders of their supreme leader with ill-disguised disdain. This was glaringly apparent in the manner that Taliban fighters have violated the solemn pledges enshrined in the constitution promulgated by Mullah Omar. The main features of the document were published in the August 3, 2010, issue of Azadi, a Quetta-based newspaper.
The 35-page constitution, which contains 14 chapters and 85 clauses, stresses that jihad must be strictly in accordance with Islamic principles and “every mujahid” (holy warrior) is obliged to go the extra mile to “win a place in the hearts of the people...so that they have the prayers of the people with them.” Three days later the bodies of 10 men and women, all medical aid workers, were discovered by Afghan police in the northern province of Badakshan.
Another clause ordains that captured foreign troops must never be treated as hostages and, therefore, their release “in exchange for money is strictly forbidden.” The same paragraph enjoins the provision of “good facilities to the prisoners” and prohibits any form of torture, particularly the “cutting off of ears, noses and lips.” Five days later, the mutilated remains of two US Marines who had been captured by the Taliban the previous month in Logar province were recovered by the International Security Assistance Force in Afghanistan (Isaf).
The document emphatically asserts that informers and spies must not even be arrested, or harmed, without their being made aware of Islamic teachings and given an opportunity to repent. This did not stop the public hanging of a seven-year-old boy on preposterous charges of espionage. Around this time international media outlets carried unconfirmed reports that the Taliban leadership had instructed their fighters to kill or capture Afghan nationals, even women, if they cooperated with Isaf.
These ghastly incidents, despite the assurances in the constitution promulgated by the self-styled amir-ul-momineen, show that his authority is gradually being eroded. This was also conceded in March last year by his close confidante, Mullah Zabiullah, who said that the Taliban movement was in the throes of an unprecedented leadership crisis.
But despite this, Mullah Omar is by far the most powerful leader of Pakhtun-dominated southern and eastern Afghanistan, and all efforts to promote a settlement will have to be negotiated through his designated representatives. In his Eid-ul-Azha message he stated: “...we have established a specific office and a separate political panel...I wish to make it clear that besides that specific office, we have no other outlet for any reconciliation or political dialogue.” This is the same “committee” for the purpose of “making external and internal policies” that was envisaged in the constitution two years earlier.
Against this backdrop, Washington believes that Pakistan can play a pivotal role for the orderly withdrawal of US troops and the eventual stabilisation of Afghanistan. It is therefore probably not coincidental that in the last few days the US Special Envoy for Pakistan and Afghanistan Marc Grossman, the State Department spokesperson Victoria Nuland and Deputy Chief of the American embassy in Islamabad Richard Hoagland, have publicly affirmed that the Durand Line is the recognised international boundary between Pakistan and Afghanistan.
These pronouncements at this point in time are intriguing. In 2007, when Pakistan toyed with the idea of fencing its border with Afghanistan, former president Pervez Musharraf was discreetly but firmly advised by the Bush administration to abandon the project, as it would undermine the Karzai regime. The change in Washington’s declaratory policy on the Durand Line is therefore significant. Whatever the reason for this, it is vitally important for Pakistan to craft well-thought-through initiatives aimed at facilitating an intra-Afghan dialogue. The alternative is the intensification of the conflict in Afghanistan, which will have horrendous implications for the security situation in the adjacent tribal regions of Pakistan.
But persuading the Afghan groups to talk to each other has never been easy. A top-ranking foreign ministry official recently said that Mullah Omar was as “damned and elusive as the Scarlet Pimpernel” of Baroness Orczy’s literary masterpiece and there had been absolutely no contact with him for several months. One can only hope that he was lying through his teeth. The supreme leader of the Afghan Taliban has always prided himself on being a man of his word. His ideas for a settlement are spelt out in the constitution he promulgated in 2010, his Eid-ul-Fitr message of August 2011 and his recent statement on Eid-ul-Azha. These documents warrant serious study as they constitute a framework for negotiations among the Afghan factions.
The writer is the publisher of Criterion quarterly. Email: iftimurshed@ gmail.com
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Last Sunday, the Congress party held a rally in Delhi to celebrate the United Progressive Alliance government’s disastrous decision to open up multi-brand retail to foreign direct investment. This proved that the party has lost its basic political instincts. In fact, the Congress has done what no other Indian party has done: openly claim ownership of a right-wing measure that favours a tiny elite but hurts millions. The nearest anyone came to doing this was the Bharatiya Janata Party (BJP), with its “India Shining” campaign of 2004, which became a major factor in its electoral defeat.
The Wal-Mart-style hypermarkets to be promoted under the new policy will destroy street-vendors and petty shopkeepers, who cannot match giant corporations in attracting the upper middle class consumers through predatory pricing. It will also make farmers and other suppliers dependent on corporations which have every reason to squeeze them.
Going by western experience, hypermarkets will gradually eliminate competition and turn against the consumer too. Foreign-controlled retail will promote a repugnant culture of greed and wasteful consumerism that’s the opposite of environmental sustainability and social and economic equity.
Yet, by linking the FDI decision to the Congress’s “historic achievements” such as the Green Revolution in the 1970s and market-fundamentalist neoliberal policies since 1991, Sonia and Rahul Gandhi have wiped out the distance the Congress had taken from the UPA and Manmohan Singh.
Under the division of labour prevalent since 2004, the Sonia Gandhi leadership projected a left-of-centre image which fit in well with the progressive initiatives proposed by the National Advisory Council. Her emphasis on equity and inclusive growth was at odds with Singh’s policies. Now, that autonomy from Singh – chipped away gradually through repeated dilution and rejection of the NAC’s proposals on rights to food, education and healthcare, and through a change in the NAC’s composition – has vanished.
The Congress, which promised to be aam aadmi-centric, has been reduced to chanting the mantra of GDPism, the ridiculous belief that GDP growth is desirable in itself, regardless of its employment and income effects. Economist Simon Kuznets, who developed the concept of the GDP, disapproved of its use as a measure of overall national well-being because it fails to distinguish “between quantity and quality of growth, between costs and returns, and between the short and long run.”
The Congress’s rightward shift erases another lesson: the party has done well in elections whenever it adopted a left-of-centre stance. It’s now cultivating foreign corporations and a narrow upper class stratum and alienating the masses just when its main opponent, the BJP, is extremely vulnerable.
Recent media exposes of BJP President Nitin Gadkari’s shady business dealings have made his position untenable, as borne out by great turmoil in the BJP. The company Gadkari controls, Purti Power and Sugar, is owned by 18 shell companies, a majority of which have addresses in slums, and many of whose directors are Gadkari’s employees, including his chauffeur, besides having Rashtriya Swayamsevak Sangh (RSS) connections.
The key to Gadkari’s rise in the Sangh Parivar is money laundered and routed through Purti. Purti has benefited handsomely from Gadkari cronies such as Ideal Road Builders, whom he favoured as Maharashtra’s PWD minister in 1995-99. The IRB, which had only built 10 km of roads in six years, was given contracts worth hundreds of crores and became Maharashtra’s biggest toll-road company. As if to return the favours, its main owner loaned INR164 crores to Purti.
To their disgrace, the BJP-RSS have unconvincingly defended Gadkari. The RSS chief, at whose behest Gadkari was appointed party president, made the amazing statement that “it’s not important how much money has been earned; it’s important ... whether it has been put to good use or not”. Such rationalisation of corruption couldn’t have been more blatant.
The Gadkari expose’ highlights nasty personal rivalries within the BJP. Gadkari has complained to the RSS that the person who leaked damaging evidence against him is party national general secretary Arun Jaitley. Jaitley probably has his eye on the party presidency, and is closely allied with the RSS joint general secretary Suresh Soni. Although the BJP constitution was recently amended to allow a second consecutive term to the president, it looks improbable that Gadkari will get it when his first term ends in December.
Gadkari’s embarrassment has produced hidden glee among his many rivals and detractors inside the party, not least former party president Rajnath Singh, Gujarat Chief Minister Narendra Modi, and Jaswant Singh and Yashwant Sinha. Gadkari riled Modi by appointing his bete noire Sanjay Joshi as election coordinator in Uttar Pradesh. In retaliation, Modi refused to campaign in the UP elections and eventually had Joshi dismissed from the party’s national executive.
Gadkari, a novice to national politics, never enjoyed much credibility, leave alone respect, in the BJP. He was considered a clown, and duly acted out that role through a series of foot-in-mouth comments. Many of his detractors have chosen to tactically ally with Gadkari because they are loath to see either Modi or Jaitley become the party president.
Various BJP leaders are making different alignments to promote individual interests. Some are even campaigning for the 85-year old LK Advani to be made party president. Yet others are rooting for Modi. Many are watching the RSS’s moves. The RSS has tightened its control over the BJP, and appointed three senior leaders (in place of one) as coordinators of its relations with the BJP.
The greatest gain from all the churning in the BJP-RSS is undoubtedly to Narendra Milosevic Modi, already the most powerful of the party’s second-generation leaders. Although the recent judgment in the Naroda-Patiya massacre, convicting 31 people including Modi crony and former minister Maya Kodnani, was an embarrassment, and although his right-hand man Amit Patel is in trouble over the fake encounter killing of Sohrabuddin, Modi’s stock remains high within the Parivar.
The recent ill-conceived British decision, driven by crass commercial reasons, to resume normal relations with the Modi government after a hiatus of 10 years, and the apparent softening of the US stand against granting him a visa, have also helped Modi. As has the praise showered upon him by numerous Indian industrialists for favouring them with sweetheart deals and enormous subsidies.
Modi is making an aggressive bid for the top party job. His bid will gather strength if the BJP wins next month’s Gujarat assembly elections. The hitch is the RSS, which doesn’t fully trust Modi because of his megalomania and highly individualistic style of working – despite his self-evident commitment to violent Hindutva and his success in reducing Gujarat’s Muslims to the status of second-class citizens. The RSS fears that a Modi takeover of the BJP will damage the party.
Yet, the RSS will have to give Modi a greater national role, perhaps as a campaign manager. Real resistance to Modi is unlikely to come from within the Parivar. It can only come from the BJP’s “secular” allies like Nitish Kumar – if they gather the courage to oppose his bid for the National Democratic Alliance’s prime ministerial candidate.
One thing is clear. Modi has blood on his hands. His candidacy will polarise the polity, and could help the Congress offset its continuing policy blunders. That would be quite an irony!
The writer, a former newspaper editor, is a researcher and peace and human-rights activist based in Delhi. Email: prafulbidwai1@yahoo.co.in
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Pakistan’s Canada-based ex-ambassador Muhammad Yunus in his book Foreign Policy: A Theoretical Introduction (OUP, 2003) has told us how different scholars have avoided theorising about national interest. He quotes Raymond Aron as saying that “it is a formula vague to the point of being meaningless or a pseudo-theory”.
In Pakistan, it is the army that decides strategy. The other institutions, like the government, simply adjust to it. Should we change this pattern? The following points are worth pondering:
1) Because the army was always dominant, a kind of ‘consensual national interest’ became frozen over the national security state, which meant a challenge to India and all those elements — like the nuclear programme — that underpinned it.
2) Is Kashmir an object of national interest? On the ground, it has faded away but in abstraction, it is there as a device to derail discussion over more practical issues.
3) In today’s world, power rather than any morality drives foreign policy. If a state is strong it will be sovereign. It will also have two qualities that will make it a de facto ‘big power’: the ability to resist coercion and the ability to coerce other states. National interest lies in achieving either or both conditions.
4) It is not an unforgivable sin to be a weak state. What should be the national interest of weak states? Contrary to what the nation thinks, it should not be harmed by the power projection of states it cannot oppose or resist.
5) National interest lies in seeking alliances that may break the isolation that enables the enemy-state to successfully harm it.
6) National interest lies in attaining the ability to achieve internal reform in order to avoid foreign pressure of all sorts.
7) National interest lies in avoiding international isolation to prevent other states from getting together within the United Nations to use international law to harm it.
8) Embracing pragmatism in the conduct of the state to come close to a theoretical basis for the understanding of the conduct of a weak state.
9) Lee Kuan Yew of Singapore is the philosopher of the new ‘national interest’ theory that is related solely to the national economy. He symbolises the transition of the nation state to a market state.
10) The ‘market’ states in most of Southeast Asia and the Far East seem to conduct themselves ‘pragmatically’ in the realm of foreign policy, reflected in their abstention from pronouncing an aggressive strategy.
11) Should the common man be the one to decide national interest? What the common man thinks is shaped by the indoctrination of the state. Political theory, developed since the rejection of democracy by philosophers in Athens, recommends ‘indirect representative democracy’ that keeps the common man away from the formulation of strategy.
12) State indoctrination is not geared to the reality of relative power enjoyed by the state vis-Ã -vis other states but to the myth of its own greatness in the abstract.
13) National interest should not be conflated with nationalism, which is in the domain of emotions that incline the state to the risk of war. National interest should relate to the economic vision of the country and should be achieved with pragmatism.
The writer is Director South Asian Media School, Lahore khaled.ahmed@tribune.com.pk
Published in The Express Tribune, November 11th, 2012.
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There are times when the distinction between the title and the individual ceases to exist, it is only the title. We have seen honourable judges refer to themselves as his Lordship, this does not come naturally to most of us, but then most of us are not their Lordships. The recent exchange between the two “Chiefs” is really about them being bigger than all of us, than the system itself.
The response to the statements is classic textbook ‘Stockholm syndrome’. The Army Chief has constantly been lauded for his commitment to democracy, which is a scared and polite way of saying that he has been kind enough not to impose martial law. This, of course, is perfect nonsense. The Army Chief is a government servant and is not supposed to impose martial law and take over governments. If he does so that is high treason. We do not have to thank everyone who has not committed a crime yet. He would have been fired in most other countries for speaking in this threatening tone of voice. The ISPR statement took more words to communicate to us the same message as a former intelligence chief said very concisely to a reporter on camera when he (the intelligence chief) said: “Shut up, idiot.” The subtext of the ISPR statement, which has also been voiced by many in the media and politicians is that taking too aggressive a stance on the conduct of retired army generals will somehow dampen the morale of the armed forces. I fail to see the force of this argument. All of us should and do dip our flags and salute our brave soldiers fighting the war of our survival and we remain indebted to them for their courage and sacrifices. However, it does not affect the resolve and intention to prosecute generals accused of financial corruption and rigging elections (which most probably is high treason). If anything, the “morale” of our troops will increase knowing that they have a leadership that is willing to uphold their oath and be loyal to the Constitution.
The Chief Justice constantly reminds us of the sacrifices that the present judiciary has made and how the road for all future martial law has forever been blocked. The doctrine of necessity has been buried, etc. A few obsolete maxims like, “judge only speaks through judgments”, etc. have to be disregarded in this courageous endeavour. Nobel sentiments, and one has no reason to doubt the word of My Lord. However, it is too strenuous. The only appropriate time to display (or not to) courage is when the moment arrives, and unfortunately, sooner or later, that time will come. Some particularly cynical people may also object to the Chief Justice taking this slogan on tour, addressing district bar councils and rallying troops. The press conference held by the Registrar of the Supreme Court in the Asghar Khan case is unprecedented; it is not clear if that will be the standard practice for all judgments from now on or if it was a one-off thing. The courts should be free in making any decisions that they deem fit;press conferences, however, are highly debatable. In any event, the good registrar is the Court’s answer to ISPR. Like the Army, the Court is extremely sensitive to criticism, and like the intangible “morale” of the troops, the Court believes unwanted criticism affects the “independence” of judiciary.
Maybe the two Chiefs are more alike than what first impressions would suggest. Prosecuting generals Beg and Durrani is an attack on the entire army; similarly, allegations against Doctor Arsalan is a conspiracy against all of the judiciary. It is always “us”, always the first person “plural”. Another unifying bond between the two Chiefs is dislike for politicians. This, along with their commitment to the “rule of law”, led to a common ground in the Memo scandal. The contempt for politicians is ironic considering the desire of both the Chiefs to be popular. Perhaps, they do not hate the game, just the present players. The press statements of the ISPR and those of the Registrar are meant to garner public support. Their job descriptions do not allow that, the perks, privileges, immunity of being a Judge or a General means that the desire to be popular has to be deferred till retirement. Political and policy statements is a two-way street, we will take you seriously when we can talk back. So, with the utmost of deference, in my opinion, both the Army Chief and the Chief Justice of Pakistan have disregarded red lines in making political statements.
Yet, there still maybe a bright side to this. The Army and the Court have remained on the same page up till now. It is said when Roman generals entered the city after a triumph, there was a man on the chariot whose only job was to whisper in the ear of the general, “Remember, you are only human.” In our case now, there is not one chariot, and there is no whispering; unfortunately, there is no triumph either. Still, the two Chiefs seem to be on parallel chariots competing fiercely and it is more like shouting, however, the message remains the same, “Remember, you are only human.” One hopes amidst all the noise both of them hear and understand that.
The writer is a lawyer and partner at Ijaz and Ijaz Co in Lahore saroop.ijaz@ tribune.com.pk
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Bihar, with a population of 103 million, is the third-most populous state of India. About 17 per cent of the population is Muslim, which makes Bihar host to the second-largest population of Muslims among the Indian states. Bihar had posted a compound annual growth rate of 16.71 per cent during 2011-12, which was the highest among the Indian states. Bihar’s spending on development increased tremendously during the past five years with the expenditure during this period being higher than the cumulative expenditure during the preceding 50 years.
Bihar’s landmark governance initiative has been the passing of the Right to Public Service Act in 2011, which guarantees 52 basic services to its citizens within a fixed timeframe. Citizens can demand these services as a right and penalties are prescribed for public office holders who fail to provide them within the prescribed time limit. The state received 20 million applications during the one year after the passage of the Act of which some 95 per cent were disposed of within the target time.
Another innovation is that of providing the right to information (RTI) to the marginalised and illiterate sections of society, which cannot make written applications to demand information. Now, any citizen can file an application for information using mobile phones and the state is obligated to provide it within 30 days. Call centres have been established to convert public calls into written RTI applications. It is worth noting that RTI has assumed the scale of a movement in India and is extensively used by citizens.
Pakistan, which faces tremendous challenges when it comes to getting children vaccinated, especially against polio, can learn from Bihar, which has succeeded in increasing the percentage of full immunisation from 18.6 per cent in 2005 to 66.8 per cent in 2012. No fresh case of polio has been detected in Bihar since September 2010.
Pakistan and India have discussed issues such as Kashmir, Siachen, river waters, trade and terrorism for many years. However, public issues such as education, health, poverty eradication, right to services, etc, are new and welcome items on the menu.
As Kumar completes his second consecutive term as chief minister after serving six terms in the Lok Sabha and holding portfolios in the Union cabinet, he is being widely tipped as one of the most potent candidates for the future premier of India. His visit to Pakistan and exchange of views with top political leaders will provide him with necessary insight into Pakistan-India relations. Now that Pakistan is transforming itself into a stable democracy, the challenges of providing good governance under a democratic set-up may be easier to face by learning from each other. The goals of peace and friendship can be achieved not only by holding dialogues on bilateral issues but also by sharing experiences on good governance.
The writer is president of the Pakistan Institute of Legislative Development And Transparency, which facilitated the visit of Pakistani parliamentarians to Bihar in August 2012
Published in The Express Tribune, November 11th, 2012.
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This week I am avoiding politics and plunging once again into nostalgia, to the old black and white English movies that I had downloaded in the prehistoric days before they banned YouTube in Pakistan, which brought back memories of the London of the 1950s and the London School of Economics (LSE) where I spent my most impressionable years. These days, you will be lucky if you get a room in a hotel for 150 pounds a day. But in those carefree, untroubled days, I survived on 50 pounds a month. This was enough for university fees, books, boarding and lodging, transport, monthly visits to Covent Garden or the Albert Hall, an occasional meal in a Pakistani restaurant and annual holidays in France, Spain or Ireland. As my friend Vishnu Sharma of Nairobi received only 30 quid a month from his old man, we used to cross the road and lunch every day in India House for a shilling. That is until they discovered that the passes that we used to flash when entering the canteen were actually London Transport season tickets. Roasted chestnuts in Soho cost six pence and you could take in a double feature at the Astoria cinema in Marble Arch for one-and-six.
Once, when I received a cheque for three pounds for an article I had written for Hier Spricht London, the magazine of the German service of the BBC, I invited a Venezuelan lady to dine with me at Schmidt’s Restaurant at 33-37 Charlotte Street, where each table was attended by a surly, elderly waiter wearing a white apron and they had a proper silver service. The photographs on the walls depicted scenes from some German town as it existed in the 1930s.That was the time, my mother used to tell me years later, when there were only three cities of lights and proper cabarets in Europe — Paris, Berlin and Warsaw. At the LSE, I edited the Clare Market Review, journal of the students’ union for a year. And on weekends, I would be on the Serpentine, rowing against the delicate current, feeling the slight tremor in the dark muscle of the lake, until I felt the rain drop on my cheek and a boiling sky discharged a wilderness of electricity. At times, I visited the National Gallery of Art in Trafalgar Square, where, on one occasion, I met the Hollywood actress Ava Gardner who asked me if I knew where “The Toilet of Venus” by Diego Velazquez was located.
Student life in London was an experience I would not have missed for anything. The images were absolutely riveting. Hikers rambling over pub lunches in Chelsea, discussing the quickest way to get to Cornwall where the land shelves off to furious rain mist and the Atlantic rushes in. Landladies in Bayswater bending over gulags of greasy water in kitchen sinks, toweling their heads, depressed at the sight of gray hairs mealing up the brown, while outside nettles guarded vacancies. Tourists eating salted beef sandwiches at the Nosh Bar in Picadilly near the Windmill Theatre and my soccer games with working class schoolchildren in Surrey Docks. Drinking hot chocolate in The Coffee House in Northumberland Avenue, where Trotskyites, lemon-tea Bolsheviks and Existentialists flirted with freshly scrubbed au pair girls, student teachers and nurses who moved about with a rustle of bombazine and a stick of a smile. In summer, like butterflies, small circuses wandered through the lanes settling on village green and raising their tents like a hawk’s wings. And on Sunday afternoons at Hyde Park Corner, soap box orators demonstrated the power of British democracy.
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If political questions are allowed to fester long enough they transform themselves into legal questions. In a polity where the system of governance crumbles, proliferation of legal disputes is natural. And courts can’t be faulted for adjudicating legal disputes brought before them merely because they emerged from political questions. It is indisputable that the Supreme Court has the final word in declaring rights and obligations of citizens and the state. It is also indisputable that the SC has the final word in interpreting the constitution. But the fact that the SC is the ultimate arbiter of disputes and interpreter of the law does not mean it doesn’t get things wrong.
Critiquing the SC’s rulings neither amounts to questioning the validity nor the authority of the court. But just because rulings of the apex courts are binding doesn’t mean they are right. And just because the judiciary is vested with constitutional authority doesn’t mean it is being discharged unerringly. The law being developed and the manner in which the judiciary approaches its constitutional mandate are matters of public importance that must be debated vigorously since it affects all of us.
The interim rulings of the SC in the CNG case and the Balochistan law and order case highlight problems inherent in the exercise of the apex court’s now-dilated powers under Article 184(3) of the constitution. The popular argument (that a vacuum has been created due to failure of governance in the country, which by necessity has to be filled by other state institutions) used to justify the inflated role of the SC is neither a legal argument nor a useful guide to interpreting the scope of Article 184(3)’s powers.
Starting with the CNG case, the argument that the SC didn’t fix the reduced CNG price in its order but only recorded the federal government’s statement on the estimated reduced price is disingenuous. Even if we disregard the atmosphere in Court 1, where pushing a line disagreeable to the court can become very unpleasant for the summoned civil servants, why did the court need to record the reduced price as part of its order that had been predicted by the ministry, when the operative part of the order was a direction issued to Ogra to determine what the CNG sale price ought to be?
Once such indicated price made it into the SC order could Ogra exercise any discretion or exhibit the audacity to reach a different conclusion? And when Ogra goes ahead and underwrites the price that has the SC’s tacit approval, what legal remedy will those CNG station operators have who are aggrieved by such a decision of the regulator? More importantly, in ordering Ogra to determine a reasonable price as part of its interim order, did the SC not prejudge the underlying legal issue: does Ogra have the legal authority to determine the sale price of CNG?
Let’s recall the CNG price issue. Prior to the execution of the MoU between Ogra and CNG station operators, which fixed the sale price of CNG and allowed an obnoxious profit to CNG retailers, the price of CNG was determined through open competition between CNG stations. In the recent hearing before the SC, the federal government submitted that the MoU with CNG stations was illegal and was being suspended by the government. It didn’t say why it had been entered into in the first place or who was responsible for authorising and executing such a pernicious agreement that produced windfall for CNG station owners at the cost of consumers.
The obvious questions that come to mind are: By entering into this MoU did Ogra exercise its public authority unfairly? Has Ogra been in a state of regulatory capture unduly benefiting CNG station owners and, if so, who are the public servants who ought to be held to account? Does Ogra have the legal authority to fix CNG retail prices? Was this MoU a prohibited agreement under competition law that manipulated prices and restricted competition? The SC, with its zealous focus on the sale price of CNG, didn’t get into any of these questions.
Ogra has been issuing CNG sale price notifications under Section 43B of the Ogra Ordinance. This was introduced through the Ogra Amendment Ordinance 2009, which was laid before the parliament on April 10, 2009, but never became an act of parliament and consequently lapsed. With its lapse, amendments were hurriedly introduced in the 1992 CNG Rules (issued under a 1948 mines and oilfields control law), to reclaim CNG retail price-fixing authority for Ogra. The legal validity of these rules remains dubious. But Ogra hasn’t been fixing prices pursuant to these rules. It has been doing so under Section 43B of the Ogra Ordinance that simply doesn’t exist anymore.
So why order Ogra to fix CNG retail price without first determining if it has the legal authority to do so and what legal recourse does anyone who is aggrieved by the order now have? This highlights the twin problems of Article 184(3): when the SC elects to become the court of first instance, legal infirmities easily creep into its orders compromising the law being produced by our apex court; and more than producing bad jurisprudence, the decision of the SC to act as a court of first instance, while also being the ultimate court of the land, robs aggrieved parties of their right to appeal and consequently of their due process rights.
The Balochistan law and order ruling raises questions not only about the approach of the court to constitutional interpretation but also a flawed doctrine of democracy being propounded by the court. The SC has continued to emphasise more recently that none of the state institutions, including the judiciary, have any inherent powers. The only power they have flows from the text of the constitution. And yet in many rulings produced by the SC, including the Balochistan ruling, there is hardly any mention or interpretation of the text of the constitutional provision upon which the order relies.
Which provision of the constitution vests in the SC the authority to declare that if public office holders serving in a provincial government fail to discharge their obligation to uphold fundamental rights of citizens, the entire government loses its ‘constitutional authority’ to govern? In the Asghar Khan case, where the army chief and DG ISI were found to have violated the constitution and fundamental rights, the court is at pains to explain that their acts were personal and the institution they represented wasn’t culpable. So why are the acts or omissions of Balochistan government’s officials not personal?
While the SC can affix the legal responsibility of individual public office holders, does the constitution empower it to affix collective responsibility of an elected government or rule that such government has lost its legitimacy? In the 18th Amendment cases we saw the SC wading into the province of the legislature, despite clear prohibition in Article 239 to the contrary. We have also seen the SC reduce the role of the parliamentary committee on judicial appointments to a post office. Don’t these rulings when viewed together project a disconcerting judicial approach to democracy and trichotomy of state power?
The wisdom of the idea that democracy and rule of law go hand in hand is as relevant for the judiciary as it is for parliament and the executive. Khaki-rule doesn’t become representative because people yield to martial law. Likewise our SC cannot presume to possess representative credentials merely because a popular movement backed its restoration. The authority that the SC claims or the orders that it passes cannot be grounded in public expectations but must spring from the text of the law and the constitution. By definition, commitment to rule of law demands fidelity to legal texts, which is seen wanting in Article 184(3) jurisprudence of the SC.
(Concluded)
The writer is a lawyer based in Islamabad. Email: sattar@post.harvard.edu
Published in The News , November 10th, 2012.
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