By Pervez Hoodbhoy
Dark clouds are gathering over Pakistan’s universities, portending a conflict that is likely to be long, bitter, and uncertain in outcome. On one side are those who say that individuals to be awarded PhD degrees must have, at the very minimum, undergraduate level knowledge in the relevant discipline.
On the other side are PhD aspirants, together with their supervisors, who demand unearned degrees. They hold that passing examinations and taking courses is unnecessary and an affront to their dignity.
The first volleys have already been fired. Earlier this month about one hundred students, registered for the PhD degree at Quaid-e-Azam University, angrily mobbed the executive director of the Higher Education Commission (HEC) as he entered the campus. Their demand: cancel the current requirements of passing the international Graduate Record Examinations (GRE) as well as taking and passing graduate level courses. They say that producing research papers entitles them to receive the highest degree in their chosen discipline.
To his credit, the HEC officer stood his ground. He pleaded that removing essential graduation requirements would make their degrees meaningless, that they really did need to know subject basics before doing research, etc. But these obvious and sensible arguments cut no ice with those who believe that PhD degrees are a birthright. Rhythmic cries “hum nahin mantay zulm kay zabtay” (we will not tolerate tyranny!) reverberated across the campus. This leads one to wonder: for how long can the HEC withstand such pressures? What if the floodgates give way?
Some background: a tidal wave of cash hit Pakistan’s universities between 2002-2008. The 10-12 times budgetary increase set a new world record while the accompanying hype touched the skies. Advised by the HEC’s newly appointed chairman, Dr. Atta-ur-Rahman, General Pervez Musharraf grandly declared that the annual production of PhD degree holders would be boosted from 150 per year to 1500 per year. Incentive schemes encouraged teachers – often of doubtful academic merit themselves – to take on PhD students by the score. Academic quality, already low, nose-dived.
In 2006, pressed by persistent critics to include at least some minimal quality checks, the authorities finally made the right decision. They declared that a PhD candidate must “pass” the international GRE undergraduate-level subject test administered by the Education Testing Service, Princeton. But the meaning of “pass” was a hot potato that was not touched upon for another two years. Finally, in 2008, passing was declared as achievement of 40 percentile or better in the subject test.
Even this ludicrously low pass mark drew howls of protest. PhD students saw their degrees endangered while their supervisors saw their incomes threatened: every single registered Ph.D. student was a cash cow worth Rs 5000 per month. The money went into the teacher’s pocket. Banded together by common interests, teachers and students lobbied to get the pass mark reduced still further. Others demanded that if testing was to be done at all, let it be done locally. Proponents of international testing were dubbed as "foreign agents" and passionate arguments of national ghairat (honor) being at stake were thrown around.
But international tests of subject competence are simply indispensable. First, science is a global enterprise and rules for assessing competence in a particular discipline are universal. Local evaluations and testing mechanisms cannot compete in validity and quality. Second, in a society where ethical standards in the teachers’ community are no higher than among politicians or shop-keepers, the impartial and cheating-free nature of international testing is absolutely vital.
There is nothing particularly difficult about these international tests. As some readers may know, they are pitched at the bachelor’s level (i.e. 16-years of education). Chinese, Indian and Iranian students easily score in the 80-90 percentile range. American universities use them as entrance requirements, with medium-quality universities requiring results in the 70-80 range and the very good ones in the 80-95 range.
But achieving even 40 percentile has proved to be too difficult for most Pakistani PhD students even at the end of their PhD studies. This is especially alarming since they have had the advantage of 3-4 years of additional study. The pathetic quality of undergraduate education in Pakistan is surely responsible for this unfortunate fact. The intensity of the opposition to testing becomes understandable.
Better equipped Pakistani students, however, welcome international testing. Faced with a meaningful challenge, some of our students have labored long and hard – and increased their scores spectacularly. About 15 students from my department have cleared the 40 percentile hurdle, and the best have scored around 80. This shows that Pakistani students too can compete – if pushed in the right direction.
For the first time in their lives our students are being confronted head-on with a hard fact: science is all about problem solving. They have to shape up if they want to play ball. For a change, cheating in examinations is impossible and cramming does not help. The heartening thing is that most students, whether they do well or otherwise, say they learned a great deal of subject matter in preparing for this challenge and felt more educated. Surely this by itself is enormous success.
After years of criticizing trends in higher education and the shenanigans of the HEC’s former leadership, I feel that the HEC is now doing the right thing. Now it needs to stand by its guns. Of course, there is much more to be done than to merely raise the bar from time to time. A different direction is badly needed.
Broadly speaking, higher education reform must prioritize improvement of teaching quality, particularly in colleges. Numbering about one thousand, they are in a desperate condition. Instead of pampering universities, the government must help colleges improve their infrastructure and teaching quality. The previous model of rewarding so-called “research” in universities must be drastically revised. This policy has resulted in a flood of papers, the bulk of which are worthy of the trashcan even if published in some “international” journal.
The fact is that students need sound basic knowledge of their subject if they are to benefit from higher education, as well as to do meaningful research. Genuine research must not be confused with data gathering; it requires strong skills and solid comprehension. For this, the next generation of university students must have good teachers at the college and school level. This, in turn, needs improved teacher recruitment and training.
Hence there is an urgent need to create large, high-quality, degree-awarding teacher-training academies in every province. Established with international help, these academies should bring in the best teachers as master trainers from across the country and from neighboring countries. Rather than waste precious resources on frivolities, this is the direction to go.
Monday, February 22, 2010
Sunday, February 21, 2010
Separation of powers
By Sania Nishtar
The potential standoff between government and judiciary has finally been averted. Process-related concerns notwithstanding, the saga’s culmination appears to be a product of sound technical advice, heed to provisions of the constitution and a process of consultation. These attributes of governance will surely pay dividends whenever they are mainstreamed in decision-making in matters of state.
There is a lesson to be learnt here. But as always, reflections are becoming centered on conspiracy theories, power struggles, personal rivalries and institutional divides–in other words, power politics. By contrast some systemic considerations related to the implications of the averted standoff for state governance and its determinants have not featured prominently in discussions. This comment aims to underscore the importance of these factors.
The matter was centered on prerogatives of institutions, which brings to the fore the question of ’separation of powers’. The purpose of separation of powers is to foster institutional checks and balances, as it is only through these that safeguards can be built against potential abuse of power. Failure to institutionalise these simply creates opportunities for tyranny–whether it is in the shape of traditional dictatorship–military rule–or absolutism in the guise of democratic rule.
There are many examples over the course of the last 63 years where the authority of decision-making has been in the hands of one person in Pakistan, both during military and civilian reigns. In these situations, power has been deliberately and/or inadvertently abused and the legitimacy and sustainability of power grabbed by the executive could not be hindered, as a result of lack of separation of powers. This trend continued to prevail because powers have traditionally been ‘fused’ and the checks and balances, which could act as safeguards against abuse of power could not be asserted and in many cases, stood blurred.
We need to understand why this has been the case in the past, why this pattern appears to be changing now and where the impediments to change stand. Understanding the concept of separation of powers in Pakistan’s context is important in this regard.
In Pakistan as in any other constitutional democracy, the powers of the government are meant to be divided so that the legislature makes laws, the executive authority carries them out and the judiciary operates independently. In any constitutional democracy, a system of checks and balances is inherently implicit, and that is why powers are meant to be separated.
The judiciary is meant to exercise checks on the parliament. The power of judges to review public laws and declare them in violation of the nation’s constitution serves as a fundamental check on any potential abuse of power by the government. The constitution has a supreme status, which means that any law that violates the constitution or conducts that conflict with it can be challenged and struck down by courts. This prerogative of the judiciary has not been widely exercised in the past. However, with increasing trend towards judicial activism, the judiciary has increasingly made use of this privilege. So in its ruling on the legal validity of the National Reconciliation Ordinance (NRO) and terming it void ab initio for being ultra vires of the constitution, the judiciary exercised a fundamental check. Striking down the recent notifications as being in violation of the constitution is also a check on the executive’s authority and must be perceived in the same spirit.
The judiciary can also exercise similar checks on the executive. However, some of the recent ‘checks’–e.g. the suo moto actions with regard to setting sugar prices–are controversial, as there are many economic considerations determining price increase. Shortcomings in governance, though a proximate cause, are not a violation of the constitution, per se.
This aspect notwithstanding, the recent trend towards independence of the judiciary is a positive trend and one that holds promise of impact with regard to institutionalising checks and balances, provided ‘impendence’ does not transcend into ‘judicial imperialism’, as an expert has recently emphasized. Additionally, in order to fully realise its impact in a sustainable manner, two things must be ensured. One, de-politicising the superior judiciary and two, elimination of graft at all levels through reform of the judicial system.
The other system of checks and balances relates to the check of the legislature on the executive. There are two complicating factors in this regard–one generic to Pakistan and the other inherent to parliamentary forms of government, in general. Each of these creates a separate imperative for systemically ingraining checks and balances in Pakistan’s context.
Firstly, the power of the executive has been vested either in the president or the prime minister at different times in Pakistan. The 1973 Constitution and the 13th and 14th Amendments greatly empowered the prime minister whereas the 8th and 17th Amendments shifted power to the president’s office. Striking the right balance has therefore been a major bone of contention. Having a presidential chief executive in a parliamentary system creates a level of complexity and undermines the ability of the legislators to exercise checks on the executive. The solution to this lies in fashioning structural provisions of the constitution to separate powers.
Secondly, the other complicating factor with regard to separation of powers is inherent to the differences between presidential and parliamentary forms of government, which are the two ways in which executive authority is organised in constitutional democracies. Separation of powers, also known as trias politica, a model for governance in democratic states, is a feature inherent to the presidential system whereas ‘fusion of powers’ is characteristic of parliamentary systems. In the latter, the executive which consists of the prime minister and the cabinet are drawn from the legislature. Given this fusion, the role of an independent judiciary becomes all the more important in a parliamentary system.
The solutions to the lack of parliamentary oversight on the functioning of the government are not confined to amending the constitution. Overall systems of accountability need to be revamped to ensure that institutional instruments and arrangements are in place to enable direct and indirect political, administrative and financial accountability–both ways, involving the legislators and the executive. In doing so decision makers must scope beyond the current narrow ambit of accountability, as is being envisioned in the Accountability Bill. In order to ingrain appropriate checks and balances, many relevant institutions and instruments need to be restructured to address administrative dysfunction, mismanagement and political manipulation–all of which are pervasive in the system.
In sum therefore, two key instruments need to be reshaped in order to institutionalise a system of checks and balances between the three pillars of the state; one, the Constitution and two, a holistic accountability framework. The potential within these norms–if appropriately cascaded into implementation–to shape the destiny of this country must not be underestimated.
The potential standoff between government and judiciary has finally been averted. Process-related concerns notwithstanding, the saga’s culmination appears to be a product of sound technical advice, heed to provisions of the constitution and a process of consultation. These attributes of governance will surely pay dividends whenever they are mainstreamed in decision-making in matters of state.
There is a lesson to be learnt here. But as always, reflections are becoming centered on conspiracy theories, power struggles, personal rivalries and institutional divides–in other words, power politics. By contrast some systemic considerations related to the implications of the averted standoff for state governance and its determinants have not featured prominently in discussions. This comment aims to underscore the importance of these factors.
The matter was centered on prerogatives of institutions, which brings to the fore the question of ’separation of powers’. The purpose of separation of powers is to foster institutional checks and balances, as it is only through these that safeguards can be built against potential abuse of power. Failure to institutionalise these simply creates opportunities for tyranny–whether it is in the shape of traditional dictatorship–military rule–or absolutism in the guise of democratic rule.
There are many examples over the course of the last 63 years where the authority of decision-making has been in the hands of one person in Pakistan, both during military and civilian reigns. In these situations, power has been deliberately and/or inadvertently abused and the legitimacy and sustainability of power grabbed by the executive could not be hindered, as a result of lack of separation of powers. This trend continued to prevail because powers have traditionally been ‘fused’ and the checks and balances, which could act as safeguards against abuse of power could not be asserted and in many cases, stood blurred.
We need to understand why this has been the case in the past, why this pattern appears to be changing now and where the impediments to change stand. Understanding the concept of separation of powers in Pakistan’s context is important in this regard.
In Pakistan as in any other constitutional democracy, the powers of the government are meant to be divided so that the legislature makes laws, the executive authority carries them out and the judiciary operates independently. In any constitutional democracy, a system of checks and balances is inherently implicit, and that is why powers are meant to be separated.
The judiciary is meant to exercise checks on the parliament. The power of judges to review public laws and declare them in violation of the nation’s constitution serves as a fundamental check on any potential abuse of power by the government. The constitution has a supreme status, which means that any law that violates the constitution or conducts that conflict with it can be challenged and struck down by courts. This prerogative of the judiciary has not been widely exercised in the past. However, with increasing trend towards judicial activism, the judiciary has increasingly made use of this privilege. So in its ruling on the legal validity of the National Reconciliation Ordinance (NRO) and terming it void ab initio for being ultra vires of the constitution, the judiciary exercised a fundamental check. Striking down the recent notifications as being in violation of the constitution is also a check on the executive’s authority and must be perceived in the same spirit.
The judiciary can also exercise similar checks on the executive. However, some of the recent ‘checks’–e.g. the suo moto actions with regard to setting sugar prices–are controversial, as there are many economic considerations determining price increase. Shortcomings in governance, though a proximate cause, are not a violation of the constitution, per se.
This aspect notwithstanding, the recent trend towards independence of the judiciary is a positive trend and one that holds promise of impact with regard to institutionalising checks and balances, provided ‘impendence’ does not transcend into ‘judicial imperialism’, as an expert has recently emphasized. Additionally, in order to fully realise its impact in a sustainable manner, two things must be ensured. One, de-politicising the superior judiciary and two, elimination of graft at all levels through reform of the judicial system.
The other system of checks and balances relates to the check of the legislature on the executive. There are two complicating factors in this regard–one generic to Pakistan and the other inherent to parliamentary forms of government, in general. Each of these creates a separate imperative for systemically ingraining checks and balances in Pakistan’s context.
Firstly, the power of the executive has been vested either in the president or the prime minister at different times in Pakistan. The 1973 Constitution and the 13th and 14th Amendments greatly empowered the prime minister whereas the 8th and 17th Amendments shifted power to the president’s office. Striking the right balance has therefore been a major bone of contention. Having a presidential chief executive in a parliamentary system creates a level of complexity and undermines the ability of the legislators to exercise checks on the executive. The solution to this lies in fashioning structural provisions of the constitution to separate powers.
Secondly, the other complicating factor with regard to separation of powers is inherent to the differences between presidential and parliamentary forms of government, which are the two ways in which executive authority is organised in constitutional democracies. Separation of powers, also known as trias politica, a model for governance in democratic states, is a feature inherent to the presidential system whereas ‘fusion of powers’ is characteristic of parliamentary systems. In the latter, the executive which consists of the prime minister and the cabinet are drawn from the legislature. Given this fusion, the role of an independent judiciary becomes all the more important in a parliamentary system.
The solutions to the lack of parliamentary oversight on the functioning of the government are not confined to amending the constitution. Overall systems of accountability need to be revamped to ensure that institutional instruments and arrangements are in place to enable direct and indirect political, administrative and financial accountability–both ways, involving the legislators and the executive. In doing so decision makers must scope beyond the current narrow ambit of accountability, as is being envisioned in the Accountability Bill. In order to ingrain appropriate checks and balances, many relevant institutions and instruments need to be restructured to address administrative dysfunction, mismanagement and political manipulation–all of which are pervasive in the system.
In sum therefore, two key instruments need to be reshaped in order to institutionalise a system of checks and balances between the three pillars of the state; one, the Constitution and two, a holistic accountability framework. The potential within these norms–if appropriately cascaded into implementation–to shape the destiny of this country must not be underestimated.
Failure yet again
By Saleem Safi
The much-talked-about London Conference has brought another failure for the Obama administration and its allies as the Taliban instantly rejected the talks offer, which lacked incentives for the combatants who are already achieving successes in Afghanistan.
Unfortunately, the allied forces are yet to learn lessons from the mistakes committed by the Bush administration in its war on terror. Throughout the London moot, Prime Minister Gordon Brown kept elaborating on the speech delivered by Obama only two days back, the US president’s State of the Union Address. Since there was no incentive for the Taliban, they rejected the conference outright.
Why did one of the most prudent politicians of Afghanistan – Hamid Karzai – not spell out the contradictions in the new US policy on Afghanistan? Also surprising is the failure of the proficient Shah Mahmood Qureshi in convincing his US and UK counterparts on mending the confusions in the new Afghan strategy. Even the so-called shrewd and futuristic Western think tanks have failed in preventing their governments from a policy which would bring nothing to Afghanistan but bloodshed.
The new US policy is supposed to encourage initiation of talks with those Taliban elements which denounce terrorism. Prior to any talks, you have to create a conducive environment, and confidence-building measures are a must for bridging the gulf between the warring factions. The Taliban and Hekmatyar are clubbing talks with the exit of allied forces from Afghanistan while on the contrary the Western states are dispatching more troops to Afghanistan to take the battle temperature to new highs.
The icing on the cake is the covert efforts launched by the allied forces to divide the Taliban. Under the plan, $500 million have been allocated to win the loyalties of Taliban elements in order to isolate the Taliban leadership. This means that the US is not willing to hold talks with Mullah Omar, only with those who would be willing to ditch the influential Taliban leader.
Irrespective of the fact that neither were such efforts successful in the past nor would these bear fruit now, it is hard to believe that the Taliban would agree to sit at the dialogue table. Only an insane person would expect talks in such high temperature with increasing doubts between the warring factions.
The new US policy on Afghanistan is based on an assumption that the Karzai government would acquire stability. To the contrary, the US policy is further destabilising the Karzai regime. Due to the same policy, even the election of Karzai became much controversial. Now the allied forces have made the provision of aid to the Karzai government conditional on eradication of corruption. The question to be asked is: if the elimination of corruption by the Afghan government was so easy, could it not have achieved this target to restore its credibility in the comity of nations in the past? Keeping in view the fact that the Karzai government was made so frail that the president had to seek support from Gen Abdul Rashid Dostum and Qasim Faheem in the recent elections, how would a feeble and meek government consisting of people like Qasim Faheem and Dostum be able to achieve the ambition of corruption-free governance? So neither will this government be able to abolish corruption within its ranks nor the Western nations provide the Karzai administration the required financial assistance. Thus the dream of the stability of the Karzai government will never materialise.
Moreover, the sincerity of the US administration to Afghanistan and Pakistan could be gauged from the fact that the Afghan election commission had to delay the Afghan polls for six months due to the non-provision of a few hundred million dollars. In such a situation, it is hard to believe that the Karzai government would be stabilised by 2011.
The premature announcement of the Afghan exit plan has also given a new life and hope to the combating militant forces and the morale of the Taliban and Hekmatyar groups is now sky high. Since they are foreseeing success, it has become more difficult to get them to the dialogue table while they are winning on the battlefield.
The stability and peace in Afghanistan is linked with direct talks with Mullah Omar and Golbadin Hekmatyar. It would be prudent to form a government in Afghanistan based on national consensus, in consultation with the neighbouring states. Not only could that bring peace to the country but it could also protect and ensure the interests of the international and regional players.
It seems that Hamid Karzai has realised this reality and his efforts to strengthen his ties with Pakistan and Iran are an indication of that. However, ever since the new US policy has been made public, the gulf between the US and Pakistan is widening by each passing day. This is a bitter truth that both the friendly states today are at daggers drawn vis-à-vis the Afghanistan issue.
Neither is Pakistan willing to accept any role for India in Afghanistan nor does it agree to the notion that India is a stakeholder in this regard. On the other hand, for the first time Iran has boycotted any international moot on Afghanistan, and the absence of an Iranian delegate from the London Conference reflects the disagreement of the Iranian establishment with the new Afghan policy.
The issue of a missile defence system for Georgia has also warmed the temperature between Russia and the USA. The US media is also issuing reports on increasing Chinese investments in the Afghan province of Logar – clearly reflecting US concerns over the increasing influence of China in Afghanistan.
Since the allied forces are once again failing to focus on efforts to address the concerns of the neighbouring countries of Afghanistan, it could be safely said that no formula can hold its ground until the concerns of the regional players and neighbours are not fully redressed.
The much-talked-about London Conference has brought another failure for the Obama administration and its allies as the Taliban instantly rejected the talks offer, which lacked incentives for the combatants who are already achieving successes in Afghanistan.
Unfortunately, the allied forces are yet to learn lessons from the mistakes committed by the Bush administration in its war on terror. Throughout the London moot, Prime Minister Gordon Brown kept elaborating on the speech delivered by Obama only two days back, the US president’s State of the Union Address. Since there was no incentive for the Taliban, they rejected the conference outright.
Why did one of the most prudent politicians of Afghanistan – Hamid Karzai – not spell out the contradictions in the new US policy on Afghanistan? Also surprising is the failure of the proficient Shah Mahmood Qureshi in convincing his US and UK counterparts on mending the confusions in the new Afghan strategy. Even the so-called shrewd and futuristic Western think tanks have failed in preventing their governments from a policy which would bring nothing to Afghanistan but bloodshed.
The new US policy is supposed to encourage initiation of talks with those Taliban elements which denounce terrorism. Prior to any talks, you have to create a conducive environment, and confidence-building measures are a must for bridging the gulf between the warring factions. The Taliban and Hekmatyar are clubbing talks with the exit of allied forces from Afghanistan while on the contrary the Western states are dispatching more troops to Afghanistan to take the battle temperature to new highs.
The icing on the cake is the covert efforts launched by the allied forces to divide the Taliban. Under the plan, $500 million have been allocated to win the loyalties of Taliban elements in order to isolate the Taliban leadership. This means that the US is not willing to hold talks with Mullah Omar, only with those who would be willing to ditch the influential Taliban leader.
Irrespective of the fact that neither were such efforts successful in the past nor would these bear fruit now, it is hard to believe that the Taliban would agree to sit at the dialogue table. Only an insane person would expect talks in such high temperature with increasing doubts between the warring factions.
The new US policy on Afghanistan is based on an assumption that the Karzai government would acquire stability. To the contrary, the US policy is further destabilising the Karzai regime. Due to the same policy, even the election of Karzai became much controversial. Now the allied forces have made the provision of aid to the Karzai government conditional on eradication of corruption. The question to be asked is: if the elimination of corruption by the Afghan government was so easy, could it not have achieved this target to restore its credibility in the comity of nations in the past? Keeping in view the fact that the Karzai government was made so frail that the president had to seek support from Gen Abdul Rashid Dostum and Qasim Faheem in the recent elections, how would a feeble and meek government consisting of people like Qasim Faheem and Dostum be able to achieve the ambition of corruption-free governance? So neither will this government be able to abolish corruption within its ranks nor the Western nations provide the Karzai administration the required financial assistance. Thus the dream of the stability of the Karzai government will never materialise.
Moreover, the sincerity of the US administration to Afghanistan and Pakistan could be gauged from the fact that the Afghan election commission had to delay the Afghan polls for six months due to the non-provision of a few hundred million dollars. In such a situation, it is hard to believe that the Karzai government would be stabilised by 2011.
The premature announcement of the Afghan exit plan has also given a new life and hope to the combating militant forces and the morale of the Taliban and Hekmatyar groups is now sky high. Since they are foreseeing success, it has become more difficult to get them to the dialogue table while they are winning on the battlefield.
The stability and peace in Afghanistan is linked with direct talks with Mullah Omar and Golbadin Hekmatyar. It would be prudent to form a government in Afghanistan based on national consensus, in consultation with the neighbouring states. Not only could that bring peace to the country but it could also protect and ensure the interests of the international and regional players.
It seems that Hamid Karzai has realised this reality and his efforts to strengthen his ties with Pakistan and Iran are an indication of that. However, ever since the new US policy has been made public, the gulf between the US and Pakistan is widening by each passing day. This is a bitter truth that both the friendly states today are at daggers drawn vis-à-vis the Afghanistan issue.
Neither is Pakistan willing to accept any role for India in Afghanistan nor does it agree to the notion that India is a stakeholder in this regard. On the other hand, for the first time Iran has boycotted any international moot on Afghanistan, and the absence of an Iranian delegate from the London Conference reflects the disagreement of the Iranian establishment with the new Afghan policy.
The issue of a missile defence system for Georgia has also warmed the temperature between Russia and the USA. The US media is also issuing reports on increasing Chinese investments in the Afghan province of Logar – clearly reflecting US concerns over the increasing influence of China in Afghanistan.
Since the allied forces are once again failing to focus on efforts to address the concerns of the neighbouring countries of Afghanistan, it could be safely said that no formula can hold its ground until the concerns of the regional players and neighbours are not fully redressed.
For the good of the people
By Arif Nizami
The judicial crisis that had engulfed the entire nation in the past few weeks has finally come to an amicable end. Thanks to the statesman-like approach of Chief Justice Iftikhar Mohammad Chaudhry, Prime Minister Yusuf Raza Gilani’s consensus-building skills and President Asif Ali Zardari rising above his ego, an unmitigated disaster has been averted. The chief justice’s recommendations have been accepted in toto, including the elevation of Justice Saqib Nisar and Justice Nasir Khosa to the Supreme Court and appointment of Justice Khalil Ramday as an ad hoc judge of the apex court.
Prime Minister Gilani’s dramatic appearance at the dinner hosted by Justice Iftikhar Mohammad Chaudhry to bid farewell to Justice (r) Khalil Ramday was the first indication that the government was seeking ways to end the impasse created by its gross misreading of the situation. Although it is being claimed that the prime minister came unannounced and without an invitation, it is most likely that the drama had been scripted beforehand with the tacit approval of the stakeholders.
It is no coincidence that at the dinner the chief justice was flanked by Yusuf Raza Gilani on his right and Barrister Aitzaz Ahsan on his left. Barrister Aitzaz was the lawyer-strategist, driver and scriptwriter of Justice Iftikhar after Gen Musharraf had unceremoniously sacked the chief justice. Hence, apart from being an old guard PPP man and member of the CEC, Aitzaz also enjoys the confidence of the chief justice.
Backdoor efforts to diffuse the crisis could have still come to naught if all parties concerned had persisted with their respective egos. The judicial crisis started when, contrary to the advice of the chief justice of the Supreme Court, the president elevated the chief justice of the Lahore High Court, Khwaja Mohammad Sharif, to the Supreme Court and appointed Justice Saqib Nisar as the LHC’s acting chief justice. A bench of the apex court hastily suspended the notification the same evening.
The very next day PML-N supremo Mian Nawaz Sharif suddenly woke up from his slumber and not only declared President Zardari as the biggest threat to democracy but also demanded that he bring back his money stashed away in foreign bank accounts. Both the PPP and the PML-N taking to the streets and making vitriolic statements literally provided fuel to burn effigies of each other’s leadership. It seemed that the fragile democratic institutions still transiting from long period of military dictatorship would be the first casualty.
Notwithstanding different legal interpretations being given to the process of appointing and elevating judges of the higher judiciary under the Constitution, there is wide consensus among the legal fraternity that the chief justice of Pakistan is the final authority in appointing and elevating judges and his advice is binding on the executive.
On the one hand, in the famous Judges’ Case of 1996, Justice Sajjad Ali Shah ruled that the senior-most judge had the legitimate expectancy to be elevated and that consultation between the executive and the chief justice should be meaningful. However, much later, in 2002, a five-member bench of the apex court, contrary to its earlier judgment, ruled that the principles of legitimate expectancy and seniority did not apply to appointment of Supreme Court judges. Hence, as the law stands today, the chief justice of Pakistan, being the sole arbiter, enjoys a virtual veto in the matter.
This naturally puts the executive at a disadvantage on the issue of appointing judges according to its whims and wishes. The constitutional crisis had its genesis in the mistaken perception shared by the presidency and the governor of Punjab that Justice Sharif, being “more Sharif than the Sharifs,” was trying to pack fresh judicial appointments with his cohorts. Hence, come what may, he must be kicked upstairs.
It was also naively assumed that Justice Saqib Nisar, known to be a man of integrity, would somehow be more flexible and amenable to the blandishments of the PPP. Under the Constitution, the governor of Punjab had the option of giving cogent reasons for not accepting the names of some of the judges. But perhaps being aware that even that process is justiciable, he decided to simply sit on the files.
It has been proved beyond doubt that the government was either deliberately misled by its legal eagles or once again they simply rose to their level of incompetence. Reportedly, Law Minister Babar Awan informally proposed that the chief justice should agree on a common list of appointees to high courts in a spirit of give-and-take, little realising that under the Constitution the judiciary is under no compulsion to agree to a cherry-picking process.
If recent history is any guide, confrontation with the judiciary has never paid off, especially in the case of civilian governments. Ms Benazir Bhutto, when she was prime minister, made a scathing speech in the immediate aftermath of the 1996 Judges’ Case, bitterly criticising the higher judiciary under Chief Justice Sajjad Ali Shah. The chief justice subsequently did not spare her and sanctified her dismissal by Farooq Leghari in a manner that clearly favoured her opponent Nawaz Sharif.
Prime Minister Nawaz Sharif, heady with his “heavy mandate,” took on Sajjad Ali Shah within a year after coming into power. He almost lost his government after his goons stormed the Supreme Court Building. The situation was only saved by tacit intervention by then-COAS Gen Jehangir Karamat. Much later, Musharraf was victim of his short-sighted decision of unceremoniously sacking Chief Justice Iftikhar. This proved disastrous not only for him but also for his quisling Muslim League, which lost badly at the hustings.
There are lessons to be leant for Mr Zardari as well. Notwithstanding the acts of commission and omission of the judiciary in our chequered political history, confrontationist mode with the higher judiciary is neither in his interest nor in the long-term interest of the country. Apparently, the PPP’s coalition partners, including the MQM, were not in favour of continuing with the state of confrontation with the judiciary. This is the message that was conveyed to Prime Minister Gilani when he left the meeting of the coalition partners at the Presidency to “gatecrash” Chief Justice Iftikhar’s dinner.
The recent impasse has amply demonstrated that the present system of appointment and elevation of judges of the superior courts is indeed flawed. To say the least, the process leaves grey areas, which tempts the executive to block appointments or elevation of certain judges in order to pack the courts with its favourites. On the flip side, the higher judiciary can skew the process in a manner that can create hurdles for the executive.
The obvious casualty in such a tug of war is the hapless common man who had hoped that an independent judiciary would deliver justice at his doorstep. The lawyers’ movement was as much about the restoration of Chief Justice Iftikhar and his colleagues as about establishment of rule of law and access to justice for all. These lofty goals, however, remain elusive.
The judges, who are only supposed to speak through their judgments, with the exception of a few, now act like politicians making public utterances and hobnobbing with the executive as a rule rather than the exception. And the lawyers’ bodies that were the vanguard of the movement are too divided and embroiled in their turf wars even to give a cursory thought to much needed legal reforms.
The Charter of Democracy signed with much fanfare by Mian Nawaz Sharif and the late Ms Bhutto while they were in exile in London, clearly lays down a bipartisan approach for appointments to the superior courts. Mr Athar Minallah, a close associate of the chief justice and his former spokesman, in a recent television interview termed the CoD as the most important document in the country’s history, second only to the Quaid-e-Azam’s historic speech to the Constituent Assembly on Sept 11, 1947, and the 1973 consensus Constitution.
According to media reports the PML-N has recently disassociated itself from the Raza Rabbani Committee drafting the 18th Amendment. It will be in the fitness of things for the PML-N to go back in the deliberations and insist upon. including the process of appointment of judges in accordance with the CoD in the agenda of the committee. It’s time our politicians put their heads together for the good of the people rather than merely fighting their turf wars.
The judicial crisis that had engulfed the entire nation in the past few weeks has finally come to an amicable end. Thanks to the statesman-like approach of Chief Justice Iftikhar Mohammad Chaudhry, Prime Minister Yusuf Raza Gilani’s consensus-building skills and President Asif Ali Zardari rising above his ego, an unmitigated disaster has been averted. The chief justice’s recommendations have been accepted in toto, including the elevation of Justice Saqib Nisar and Justice Nasir Khosa to the Supreme Court and appointment of Justice Khalil Ramday as an ad hoc judge of the apex court.
Prime Minister Gilani’s dramatic appearance at the dinner hosted by Justice Iftikhar Mohammad Chaudhry to bid farewell to Justice (r) Khalil Ramday was the first indication that the government was seeking ways to end the impasse created by its gross misreading of the situation. Although it is being claimed that the prime minister came unannounced and without an invitation, it is most likely that the drama had been scripted beforehand with the tacit approval of the stakeholders.
It is no coincidence that at the dinner the chief justice was flanked by Yusuf Raza Gilani on his right and Barrister Aitzaz Ahsan on his left. Barrister Aitzaz was the lawyer-strategist, driver and scriptwriter of Justice Iftikhar after Gen Musharraf had unceremoniously sacked the chief justice. Hence, apart from being an old guard PPP man and member of the CEC, Aitzaz also enjoys the confidence of the chief justice.
Backdoor efforts to diffuse the crisis could have still come to naught if all parties concerned had persisted with their respective egos. The judicial crisis started when, contrary to the advice of the chief justice of the Supreme Court, the president elevated the chief justice of the Lahore High Court, Khwaja Mohammad Sharif, to the Supreme Court and appointed Justice Saqib Nisar as the LHC’s acting chief justice. A bench of the apex court hastily suspended the notification the same evening.
The very next day PML-N supremo Mian Nawaz Sharif suddenly woke up from his slumber and not only declared President Zardari as the biggest threat to democracy but also demanded that he bring back his money stashed away in foreign bank accounts. Both the PPP and the PML-N taking to the streets and making vitriolic statements literally provided fuel to burn effigies of each other’s leadership. It seemed that the fragile democratic institutions still transiting from long period of military dictatorship would be the first casualty.
Notwithstanding different legal interpretations being given to the process of appointing and elevating judges of the higher judiciary under the Constitution, there is wide consensus among the legal fraternity that the chief justice of Pakistan is the final authority in appointing and elevating judges and his advice is binding on the executive.
On the one hand, in the famous Judges’ Case of 1996, Justice Sajjad Ali Shah ruled that the senior-most judge had the legitimate expectancy to be elevated and that consultation between the executive and the chief justice should be meaningful. However, much later, in 2002, a five-member bench of the apex court, contrary to its earlier judgment, ruled that the principles of legitimate expectancy and seniority did not apply to appointment of Supreme Court judges. Hence, as the law stands today, the chief justice of Pakistan, being the sole arbiter, enjoys a virtual veto in the matter.
This naturally puts the executive at a disadvantage on the issue of appointing judges according to its whims and wishes. The constitutional crisis had its genesis in the mistaken perception shared by the presidency and the governor of Punjab that Justice Sharif, being “more Sharif than the Sharifs,” was trying to pack fresh judicial appointments with his cohorts. Hence, come what may, he must be kicked upstairs.
It was also naively assumed that Justice Saqib Nisar, known to be a man of integrity, would somehow be more flexible and amenable to the blandishments of the PPP. Under the Constitution, the governor of Punjab had the option of giving cogent reasons for not accepting the names of some of the judges. But perhaps being aware that even that process is justiciable, he decided to simply sit on the files.
It has been proved beyond doubt that the government was either deliberately misled by its legal eagles or once again they simply rose to their level of incompetence. Reportedly, Law Minister Babar Awan informally proposed that the chief justice should agree on a common list of appointees to high courts in a spirit of give-and-take, little realising that under the Constitution the judiciary is under no compulsion to agree to a cherry-picking process.
If recent history is any guide, confrontation with the judiciary has never paid off, especially in the case of civilian governments. Ms Benazir Bhutto, when she was prime minister, made a scathing speech in the immediate aftermath of the 1996 Judges’ Case, bitterly criticising the higher judiciary under Chief Justice Sajjad Ali Shah. The chief justice subsequently did not spare her and sanctified her dismissal by Farooq Leghari in a manner that clearly favoured her opponent Nawaz Sharif.
Prime Minister Nawaz Sharif, heady with his “heavy mandate,” took on Sajjad Ali Shah within a year after coming into power. He almost lost his government after his goons stormed the Supreme Court Building. The situation was only saved by tacit intervention by then-COAS Gen Jehangir Karamat. Much later, Musharraf was victim of his short-sighted decision of unceremoniously sacking Chief Justice Iftikhar. This proved disastrous not only for him but also for his quisling Muslim League, which lost badly at the hustings.
There are lessons to be leant for Mr Zardari as well. Notwithstanding the acts of commission and omission of the judiciary in our chequered political history, confrontationist mode with the higher judiciary is neither in his interest nor in the long-term interest of the country. Apparently, the PPP’s coalition partners, including the MQM, were not in favour of continuing with the state of confrontation with the judiciary. This is the message that was conveyed to Prime Minister Gilani when he left the meeting of the coalition partners at the Presidency to “gatecrash” Chief Justice Iftikhar’s dinner.
The recent impasse has amply demonstrated that the present system of appointment and elevation of judges of the superior courts is indeed flawed. To say the least, the process leaves grey areas, which tempts the executive to block appointments or elevation of certain judges in order to pack the courts with its favourites. On the flip side, the higher judiciary can skew the process in a manner that can create hurdles for the executive.
The obvious casualty in such a tug of war is the hapless common man who had hoped that an independent judiciary would deliver justice at his doorstep. The lawyers’ movement was as much about the restoration of Chief Justice Iftikhar and his colleagues as about establishment of rule of law and access to justice for all. These lofty goals, however, remain elusive.
The judges, who are only supposed to speak through their judgments, with the exception of a few, now act like politicians making public utterances and hobnobbing with the executive as a rule rather than the exception. And the lawyers’ bodies that were the vanguard of the movement are too divided and embroiled in their turf wars even to give a cursory thought to much needed legal reforms.
The Charter of Democracy signed with much fanfare by Mian Nawaz Sharif and the late Ms Bhutto while they were in exile in London, clearly lays down a bipartisan approach for appointments to the superior courts. Mr Athar Minallah, a close associate of the chief justice and his former spokesman, in a recent television interview termed the CoD as the most important document in the country’s history, second only to the Quaid-e-Azam’s historic speech to the Constituent Assembly on Sept 11, 1947, and the 1973 consensus Constitution.
According to media reports the PML-N has recently disassociated itself from the Raza Rabbani Committee drafting the 18th Amendment. It will be in the fitness of things for the PML-N to go back in the deliberations and insist upon. including the process of appointment of judges in accordance with the CoD in the agenda of the committee. It’s time our politicians put their heads together for the good of the people rather than merely fighting their turf wars.
Secrets, spies and lies
By Irfan Husain
OBTAINING the truth from governments is not unlike yanking out healthy teeth firmly attached to the jaw: both cause acute pain and resistance.
Take the recent judgment in Britain that forced the government to reveal details of the torture that Binyam Mohamed, an Ethiopian-born British resident, went through following his arrest in Pakistan after 9/11. Held in American custody in a number of countries for seven years, he ended up in Guantanamo from where he was finally released last year without being charged.
The British government argued that revealing such sensitive information might endanger the intelligence-sharing arrangement it has with the United States. However, for once their lordships were not having any of this routine foot-dragging, and ordered the release of the information.
In Pakistan, the state routinely classifies the most mundane documents as ‘secret’, and insists on keeping the public in the dark. Loftily, government functionaries inform us that while we must foot the bill, we are not grown up enough to know the truth. More often than not, these clandestine policies blow up in our face, and ordinary Pakistanis are left paying the cost in money and in lives.
For years, the Pakistani establishment has played a double game in Afghanistan, and when the Taliban genie escaped from the bottle and began slaughtering innocent Pakistanis, we blamed everybody but our own army and intelligence services. Every country has secrets, but we have raised the art of denial to new levels of dissimulation.
Take the American policy of taking out their Taliban and Al Qaeda foes in Pakistan by using highly advanced drone technology. This has been going on for the last several years with the clandestine knowledge and approval of both the Musharraf and Zardari governments. And yet, every time a drone launches a missile that kills militants (and civilians, unfortunately), there is a hue and cry in Pakistan. The government lodges a complaint with the US, and the media goes into a frenzy of American-bashing.
Nobody is willing to face the fact that more often than not, these drones are launched from a base located within Pakistan. This was publicly declared by an American senator who is a member of the Senate intelligence committee. No Pakistani official contradicted her, and yet everybody from Zardari downwards keeps protesting every time a drone attack takes place.
Similarly, we have American Special Forces training units of the Frontier Corps in counter-insurgency tactics, but the public remains largely unaware of this programme. It was only when three American soldiers were killed in Fata that the media reported their presence.
Recently, when Mullah Abdul Ghani Baradar, the second-in-command of the Afghan Taliban, was captured in Karachi, the interior minister referred to the report as ‘propaganda’. The question of how long our government was aware of Baradar’s presence has gone unanswered as we denied that the Quetta shura even existed on our soil.
These lies and contradictions have served to confuse the Pakistani public, and to whip up anti-American sentiment. After 9/11, Musharraf did a public U-turn and denounced the Taliban, offering the Americans help in toppling them. Much of the framework for covert joint operations was laid down in those early days, but fearing a backlash from his clerical allies in the coalition that supported him, Musharraf chose to keep most of this military and intelligence cooperation secret.
Under the army’s pressure, Zardari has chosen to continue with Musharraf’s policy of secrecy and prevarication. By insisting that Pakistan plays no part in the drone campaign, for instance, the government seeks to deflect criticism for any civilian casualties to the Americans. This is both shameless and irresponsible. The reality is that the death-by-drones of so many militants in the tribal areas is something that is to our advantage.
By not owning up to a policy in which we are both partners and beneficiaries, we have made it clear that we are unable or unwilling to exercise control over our soil. Indeed, by playing victim instead of a state defending its own people against terrorists, we send out a signal of weakness.
How would we be any worse off by adopting a more open posture? The received wisdom in both Washington and Islamabad is that somehow, public knowledge of Pakistan’s complicity in the drone campaign would destabilise the civilian government. While this may be true today, it surely was not so under Musharraf when the army was very much onside, as it is today.
The reality is that both Musharraf and Zardari have been heavily criticised by the Islamic parties and politicians for their pro-American policies. How would anything change if Zardari were to take the public into confidence? Such a policy of openness would enable the government to proceed without having to go into contortions each time a drone attack is launched.
Currently, the public perception is that the Americans are acting unilaterally, and ignoring Pakistan’s sovereignty. Understandably, this whips up anger each time a Predator or Reaper missile kills militants, as well as the women and children they were hiding behind.
We have seen this anti-Americanism flourish in our media over the years. At the time of the debate (or what passed for one) over the Kerry-Lugar bill, many TV anchors and guests on Urdu channels joined the army-led chorus against this legislation. In a barely literate society where the electronic media plays a key role in forming perceptions, our Urdu TV channels have much to answer for.
By refusing to acknowledge the degree of cooperation between the US and Pakistani army and intelligence agencies, we end up only confusing our people as well as looking incompetent and hypocritical in the eyes of the world. The drone campaign is a solid success by any yardstick. In fact, apart from our army operations in Swat and South Waziristan, it is the only military riposte to have kept the militants on the run. Surely, we should take part of the credit for locating many of the targets.
We need to know who our friends and foes are. And anybody condoning the actions of the terrorists who have killed thousands of innocent Pakistanis is not our friend.
OBTAINING the truth from governments is not unlike yanking out healthy teeth firmly attached to the jaw: both cause acute pain and resistance.
Take the recent judgment in Britain that forced the government to reveal details of the torture that Binyam Mohamed, an Ethiopian-born British resident, went through following his arrest in Pakistan after 9/11. Held in American custody in a number of countries for seven years, he ended up in Guantanamo from where he was finally released last year without being charged.
The British government argued that revealing such sensitive information might endanger the intelligence-sharing arrangement it has with the United States. However, for once their lordships were not having any of this routine foot-dragging, and ordered the release of the information.
In Pakistan, the state routinely classifies the most mundane documents as ‘secret’, and insists on keeping the public in the dark. Loftily, government functionaries inform us that while we must foot the bill, we are not grown up enough to know the truth. More often than not, these clandestine policies blow up in our face, and ordinary Pakistanis are left paying the cost in money and in lives.
For years, the Pakistani establishment has played a double game in Afghanistan, and when the Taliban genie escaped from the bottle and began slaughtering innocent Pakistanis, we blamed everybody but our own army and intelligence services. Every country has secrets, but we have raised the art of denial to new levels of dissimulation.
Take the American policy of taking out their Taliban and Al Qaeda foes in Pakistan by using highly advanced drone technology. This has been going on for the last several years with the clandestine knowledge and approval of both the Musharraf and Zardari governments. And yet, every time a drone launches a missile that kills militants (and civilians, unfortunately), there is a hue and cry in Pakistan. The government lodges a complaint with the US, and the media goes into a frenzy of American-bashing.
Nobody is willing to face the fact that more often than not, these drones are launched from a base located within Pakistan. This was publicly declared by an American senator who is a member of the Senate intelligence committee. No Pakistani official contradicted her, and yet everybody from Zardari downwards keeps protesting every time a drone attack takes place.
Similarly, we have American Special Forces training units of the Frontier Corps in counter-insurgency tactics, but the public remains largely unaware of this programme. It was only when three American soldiers were killed in Fata that the media reported their presence.
Recently, when Mullah Abdul Ghani Baradar, the second-in-command of the Afghan Taliban, was captured in Karachi, the interior minister referred to the report as ‘propaganda’. The question of how long our government was aware of Baradar’s presence has gone unanswered as we denied that the Quetta shura even existed on our soil.
These lies and contradictions have served to confuse the Pakistani public, and to whip up anti-American sentiment. After 9/11, Musharraf did a public U-turn and denounced the Taliban, offering the Americans help in toppling them. Much of the framework for covert joint operations was laid down in those early days, but fearing a backlash from his clerical allies in the coalition that supported him, Musharraf chose to keep most of this military and intelligence cooperation secret.
Under the army’s pressure, Zardari has chosen to continue with Musharraf’s policy of secrecy and prevarication. By insisting that Pakistan plays no part in the drone campaign, for instance, the government seeks to deflect criticism for any civilian casualties to the Americans. This is both shameless and irresponsible. The reality is that the death-by-drones of so many militants in the tribal areas is something that is to our advantage.
By not owning up to a policy in which we are both partners and beneficiaries, we have made it clear that we are unable or unwilling to exercise control over our soil. Indeed, by playing victim instead of a state defending its own people against terrorists, we send out a signal of weakness.
How would we be any worse off by adopting a more open posture? The received wisdom in both Washington and Islamabad is that somehow, public knowledge of Pakistan’s complicity in the drone campaign would destabilise the civilian government. While this may be true today, it surely was not so under Musharraf when the army was very much onside, as it is today.
The reality is that both Musharraf and Zardari have been heavily criticised by the Islamic parties and politicians for their pro-American policies. How would anything change if Zardari were to take the public into confidence? Such a policy of openness would enable the government to proceed without having to go into contortions each time a drone attack is launched.
Currently, the public perception is that the Americans are acting unilaterally, and ignoring Pakistan’s sovereignty. Understandably, this whips up anger each time a Predator or Reaper missile kills militants, as well as the women and children they were hiding behind.
We have seen this anti-Americanism flourish in our media over the years. At the time of the debate (or what passed for one) over the Kerry-Lugar bill, many TV anchors and guests on Urdu channels joined the army-led chorus against this legislation. In a barely literate society where the electronic media plays a key role in forming perceptions, our Urdu TV channels have much to answer for.
By refusing to acknowledge the degree of cooperation between the US and Pakistani army and intelligence agencies, we end up only confusing our people as well as looking incompetent and hypocritical in the eyes of the world. The drone campaign is a solid success by any yardstick. In fact, apart from our army operations in Swat and South Waziristan, it is the only military riposte to have kept the militants on the run. Surely, we should take part of the credit for locating many of the targets.
We need to know who our friends and foes are. And anybody condoning the actions of the terrorists who have killed thousands of innocent Pakistanis is not our friend.
Friday, February 19, 2010
Side-effect
by Harris Khalique
There is something good in what is happening in Pakistan. While elite-dominated state institutions are playing a chess game with each other, and where pawns don’t work they try bishops and rocks to reach out to the ranks of their adversaries, they keep telling the spectators that the game is being played according to the rules of the game. In this case, the rules being the Constitution of Pakistan, the supreme law of the land. And supreme law of the land it should remain, however weak or confusing some of its parts may be. It is and should always be only the prerogative of the legitimately elected parliament to revise, amend and improve it. Or at some stage in future a new constitution is written and endorsed by a constituent assembly as some of us feel who believe in the redefinition of the state of Pakistan, a people-centred economy, full provincial autonomy and realisation of rights of nationalities, inclusion of women and non-Muslims in the mainstream and creation of a modern, rational and educated society.
But the good thing is that the Constitution is being referred to, and nobody has the gall to say anymore like Gen Ziaul Haq that the Constitution is nothing but a disposable piece of paper. In the past couple of years, Articles 2, 6, 19, 58, 62, 63, 177, 243, 246, 247, 248, etc. have been either invoked, referred to or discussed in parliament, courts of law, legal fraternity, intelligentsia, print and electronic media and political party meetings. Those from the left continue to object to the Objectives Resolution being made the substantive part of the Constitution by Gen Ziaul Haq in 1985.
When he restored the disposable piece of paper in his own words, he got the word ‘freely’ removed from the clause in the original draft of the Objectives Resolution where religious minorities were given the right to practise and profess their faiths. There are other articles as well introduced by the dictator which are considered discriminatory and draconian for women and non-Muslim Pakistanis particularly relating to evidence, hudood and blasphemy. All said and done, it is parliament which should look into getting rid of such articles and clauses that create an inherent bias in the Constitution.
But there is an article seldom mentioned by those in positions of influence and authority, neither those who claim to be people’s representatives nor those who consider it sacrosanct to observe the Constitution in letter and spirit. That is Article 38. I have mentioned it before also but when a third of the country is malnourished, half of the children of school-going age are seen and treated as street urchins, young girls kept as maids by the affluent are either starved or burnt alive by their employers, there is a need to remind the state of Pakistan and its sovereign parliament of this article. It is a commitment of those who govern to the citizens of this country.
The space I use is insufficient to quote the full text but part (a) of the article says, “The state shall secure the wellbeing of the people, irrespective of sex, caste, creed or race, by raising their standard of living, by preventing concentration of wealth and means of production in the hands of a few to the detriment of general interest…” Part (d) ensures the provision of basic necessities of life including food, clothing, housing, education and medical relief. Let’s see who discusses Article 38, the courts or parliament.
The writer is a poet and advises national and international institutions on governance and public policy issues.
There is something good in what is happening in Pakistan. While elite-dominated state institutions are playing a chess game with each other, and where pawns don’t work they try bishops and rocks to reach out to the ranks of their adversaries, they keep telling the spectators that the game is being played according to the rules of the game. In this case, the rules being the Constitution of Pakistan, the supreme law of the land. And supreme law of the land it should remain, however weak or confusing some of its parts may be. It is and should always be only the prerogative of the legitimately elected parliament to revise, amend and improve it. Or at some stage in future a new constitution is written and endorsed by a constituent assembly as some of us feel who believe in the redefinition of the state of Pakistan, a people-centred economy, full provincial autonomy and realisation of rights of nationalities, inclusion of women and non-Muslims in the mainstream and creation of a modern, rational and educated society.
But the good thing is that the Constitution is being referred to, and nobody has the gall to say anymore like Gen Ziaul Haq that the Constitution is nothing but a disposable piece of paper. In the past couple of years, Articles 2, 6, 19, 58, 62, 63, 177, 243, 246, 247, 248, etc. have been either invoked, referred to or discussed in parliament, courts of law, legal fraternity, intelligentsia, print and electronic media and political party meetings. Those from the left continue to object to the Objectives Resolution being made the substantive part of the Constitution by Gen Ziaul Haq in 1985.
When he restored the disposable piece of paper in his own words, he got the word ‘freely’ removed from the clause in the original draft of the Objectives Resolution where religious minorities were given the right to practise and profess their faiths. There are other articles as well introduced by the dictator which are considered discriminatory and draconian for women and non-Muslim Pakistanis particularly relating to evidence, hudood and blasphemy. All said and done, it is parliament which should look into getting rid of such articles and clauses that create an inherent bias in the Constitution.
But there is an article seldom mentioned by those in positions of influence and authority, neither those who claim to be people’s representatives nor those who consider it sacrosanct to observe the Constitution in letter and spirit. That is Article 38. I have mentioned it before also but when a third of the country is malnourished, half of the children of school-going age are seen and treated as street urchins, young girls kept as maids by the affluent are either starved or burnt alive by their employers, there is a need to remind the state of Pakistan and its sovereign parliament of this article. It is a commitment of those who govern to the citizens of this country.
The space I use is insufficient to quote the full text but part (a) of the article says, “The state shall secure the wellbeing of the people, irrespective of sex, caste, creed or race, by raising their standard of living, by preventing concentration of wealth and means of production in the hands of a few to the detriment of general interest…” Part (d) ensures the provision of basic necessities of life including food, clothing, housing, education and medical relief. Let’s see who discusses Article 38, the courts or parliament.
The writer is a poet and advises national and international institutions on governance and public policy issues.
Good result, bad process
by Shafqat Mahmood
All card players know that it is easy to play a strong hand well. The real test is making the best of a weak hand. By getting the chief justice to come over to his house, Prime Minister Gilani has demonstrated that he is a very astute political player indeed.
The basics are obvious. The government had absolutely no case. One can quibble over who should have the right to appoint judges, but as the Constitution stands today, the advice of the chief justice is binding. By going against it, the president and the government had put themselves in a very awkward position.
It was also obvious to Gilani, if not to the president and his incompetent legal advisers, that if these notifications are not reversed, a clash with the Supreme Court was inevitable. And if that happened, the government, and perhaps even the democratic system, would be in jeopardy.
This is as weak a position as it can get, but this is where Gilani’s sharp political mind came into play. On Monday, he deliberately made an unusually hard-hitting speech in the National Assembly. Those who know him well were surprised at its tone and the threats that he hurled at the judiciary.
But this was all calibrated. He wanted to raise the ante, harden his position, so that when he gives in, it floors the other party. It is not clear whether any preliminary softening up was done by Aitzaz Ahsan or not, but when the prime minister decided to publicly eat the humble pie and gatecrash the judicial dinner, it had an enormous impact on the chief justice.
This was obvious from the visuals of this meeting. The chief justice was the most gracious of hosts. His beaming smile and ritual words of welcome made the prime minister feel completely at home. It was then that Gilani played the masterstroke. He invited the chief justice to the Prime Minister’s House for tea the next day. The chief justice was presumably so overwhelmed by the prime minister’s unexpected, uninvited and non-egotistical entry that he could not say no.
This invitation was a sharp, crafty, almost wily, move, because the ruling party had already decided to withdraw the notifications of Justice Khwaja Sharif and Justice Saqib Nisar. It had also decided to give in to the chief justice’s recommendations regarding judicial appointments. A face-saver was all that was needed. This was provided by the chief justice going over to the Prime Minister’s House.
This was not the only success. There was another, much deeper and hidden, agenda. It was to reduce the stature of the Honourable Chief Justice among the legal community and the public.
Let us not forget that the main strength of this judiciary has been the wide support it has among the people. This came about not because of the personal charisma of any one individual. In fact, on a personal level, not everything was perfect. The admiration was only due to the courage shown by the chief justice and his colleagues for not bowing before a military dictator.
This raised the stature of the entire institution and reinforced its image of independence. It also made it stand apart from political wheeling-dealing and reversed the judiciary’s historical trend of mixing up with the executive. More importantly, it put the chief justice and the judges on a pedestal far above conniving politicians.
This anointed the entire institution with a sanctity that was a throwback to earlier times, when the judges would not be seen or heard and only spoke through their judgments. The oft-repeated story of a chief justice in the 50s refusing the prime minister’s invitation because the government was a party in cases before the Supreme Court, illustrated this.
Unfortunately, the chief justice’s three-hour tea party with the prime minister has dealt a blow to this image. It looked like unseemly bargaining, a negotiated give-and-take. Par for the course as far as politicians are concerned, not particularly appropriate for the chief justice.
And Gilani is too shrewd a person not to have known this. That is why the way he has played his cards is a masterstroke. He got an honourable face-saver to reverse a bad decision and save his government from further troubles. He was also able to bring the chief justice to the level of a mere mortal, who got what he wanted, but at a cost.
Let there be no mistake. It is good that the government has finally given in to the Constitution and rule of law. It is also a relief that a full-blown crisis has been averted. The only way forward for Pakistan and its democracy is that all institutions work within their assigned spheres.
It is also true that this storm was of the government’s creation. It has repeatedly shown an ability to wade into trouble and then run back helter-skelter. But the process through which this particular crisis has been resolved leaves a bad taste in the mouth.
I so wish that the person for whom I have the highest regard, Mr Justice Khalil-ur-Rehman Ramday, had refused an additional year as an ad hoc judge of the Supreme Court. I know that he was very reluctant and has been persuaded against his will, but this was one time where he should have transcended his innate politeness.
There is much speculation about what was discussed during this long meeting between the prime minister and the chief justice. It is not difficult to guess that Mr Gilani would have talked about his concerns, and he has many. Over two months have gone by and the NRO judgement of the Supreme Court has not been implemented. A possible contempt of the court hangs over his head. Did he give his point of view?
The very fact that this is being mentioned suggests what was wrong with this meeting. The government is a party in a number of cases before the court. In some of them, the prime minister himself is being challenged, such as the promotion of civil servants and implementation of the NRO decision. There may be others. It would thus be fair to presume that judicial appointments was not the only thing discussed over three long hours.
Democracy is a process, not an end that is suddenly reached. There is thus a need to show flexibility and give latitude to the principals involved. But now all eyes would be on the Supreme Court. After having its primacy affirmed on judicial appointments, will it go easy on other matters before it?
In particular, the implementation of the Dec 16 NRO judgment becomes a test case. This is said not because there is a desire for another clash between the government and the court. Only that the credibility of the apex court is at stake. It should either review its earlier decision or insist on its implementation.
All card players know that it is easy to play a strong hand well. The real test is making the best of a weak hand. By getting the chief justice to come over to his house, Prime Minister Gilani has demonstrated that he is a very astute political player indeed.
The basics are obvious. The government had absolutely no case. One can quibble over who should have the right to appoint judges, but as the Constitution stands today, the advice of the chief justice is binding. By going against it, the president and the government had put themselves in a very awkward position.
It was also obvious to Gilani, if not to the president and his incompetent legal advisers, that if these notifications are not reversed, a clash with the Supreme Court was inevitable. And if that happened, the government, and perhaps even the democratic system, would be in jeopardy.
This is as weak a position as it can get, but this is where Gilani’s sharp political mind came into play. On Monday, he deliberately made an unusually hard-hitting speech in the National Assembly. Those who know him well were surprised at its tone and the threats that he hurled at the judiciary.
But this was all calibrated. He wanted to raise the ante, harden his position, so that when he gives in, it floors the other party. It is not clear whether any preliminary softening up was done by Aitzaz Ahsan or not, but when the prime minister decided to publicly eat the humble pie and gatecrash the judicial dinner, it had an enormous impact on the chief justice.
This was obvious from the visuals of this meeting. The chief justice was the most gracious of hosts. His beaming smile and ritual words of welcome made the prime minister feel completely at home. It was then that Gilani played the masterstroke. He invited the chief justice to the Prime Minister’s House for tea the next day. The chief justice was presumably so overwhelmed by the prime minister’s unexpected, uninvited and non-egotistical entry that he could not say no.
This invitation was a sharp, crafty, almost wily, move, because the ruling party had already decided to withdraw the notifications of Justice Khwaja Sharif and Justice Saqib Nisar. It had also decided to give in to the chief justice’s recommendations regarding judicial appointments. A face-saver was all that was needed. This was provided by the chief justice going over to the Prime Minister’s House.
This was not the only success. There was another, much deeper and hidden, agenda. It was to reduce the stature of the Honourable Chief Justice among the legal community and the public.
Let us not forget that the main strength of this judiciary has been the wide support it has among the people. This came about not because of the personal charisma of any one individual. In fact, on a personal level, not everything was perfect. The admiration was only due to the courage shown by the chief justice and his colleagues for not bowing before a military dictator.
This raised the stature of the entire institution and reinforced its image of independence. It also made it stand apart from political wheeling-dealing and reversed the judiciary’s historical trend of mixing up with the executive. More importantly, it put the chief justice and the judges on a pedestal far above conniving politicians.
This anointed the entire institution with a sanctity that was a throwback to earlier times, when the judges would not be seen or heard and only spoke through their judgments. The oft-repeated story of a chief justice in the 50s refusing the prime minister’s invitation because the government was a party in cases before the Supreme Court, illustrated this.
Unfortunately, the chief justice’s three-hour tea party with the prime minister has dealt a blow to this image. It looked like unseemly bargaining, a negotiated give-and-take. Par for the course as far as politicians are concerned, not particularly appropriate for the chief justice.
And Gilani is too shrewd a person not to have known this. That is why the way he has played his cards is a masterstroke. He got an honourable face-saver to reverse a bad decision and save his government from further troubles. He was also able to bring the chief justice to the level of a mere mortal, who got what he wanted, but at a cost.
Let there be no mistake. It is good that the government has finally given in to the Constitution and rule of law. It is also a relief that a full-blown crisis has been averted. The only way forward for Pakistan and its democracy is that all institutions work within their assigned spheres.
It is also true that this storm was of the government’s creation. It has repeatedly shown an ability to wade into trouble and then run back helter-skelter. But the process through which this particular crisis has been resolved leaves a bad taste in the mouth.
I so wish that the person for whom I have the highest regard, Mr Justice Khalil-ur-Rehman Ramday, had refused an additional year as an ad hoc judge of the Supreme Court. I know that he was very reluctant and has been persuaded against his will, but this was one time where he should have transcended his innate politeness.
There is much speculation about what was discussed during this long meeting between the prime minister and the chief justice. It is not difficult to guess that Mr Gilani would have talked about his concerns, and he has many. Over two months have gone by and the NRO judgement of the Supreme Court has not been implemented. A possible contempt of the court hangs over his head. Did he give his point of view?
The very fact that this is being mentioned suggests what was wrong with this meeting. The government is a party in a number of cases before the court. In some of them, the prime minister himself is being challenged, such as the promotion of civil servants and implementation of the NRO decision. There may be others. It would thus be fair to presume that judicial appointments was not the only thing discussed over three long hours.
Democracy is a process, not an end that is suddenly reached. There is thus a need to show flexibility and give latitude to the principals involved. But now all eyes would be on the Supreme Court. After having its primacy affirmed on judicial appointments, will it go easy on other matters before it?
In particular, the implementation of the Dec 16 NRO judgment becomes a test case. This is said not because there is a desire for another clash between the government and the court. Only that the credibility of the apex court is at stake. It should either review its earlier decision or insist on its implementation.
Subscribe to:
Posts (Atom)