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October 20, 2002 Sunday Sha'aban 13, 1423

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Opinion


Duties of a representative
Ten days to disillusion
Copyrights and wrongs
Some apples short of a picnic



Duties of a representative


By Anwar Syed

THREE hundred and forty-two men and women will soon take their seats in the National Assembly, and many more will enter the four provincial assemblies. Will they know what their new station expects from them? Politics may be one of the few professions that do not require pre-entry and post-entry training of its members.

Stable democracies have the advantage of continuity with the result that new entrants, relatively small in number, get quickly initiated into the modes and mores of the larger body of more experienced legislators. We are in a peculiar situation inasmuch as we have an unusually large number of new entrants and, second, that the model which the veterans present is entirely unworthy of emulation.

System builders in the BNR may want to consider instituting a training programme that will not only acquaint our legislators with parliamentary rules and procedures but also with relevant philosophical values and notions of duty. Until such a venture materializes (if it ever does), it may be useful to discuss the matter here and hope that those concerned will listen.

The persons we have just elected are going to be law-makers. Laws are made not only to meet existing and felt needs but also to implement one’s concept of a good society. Civilizing the people is a part of the national interest of which the legislators are the guardians and promoters. Elected from their respective constituencies, whom should they be deemed to represent? The nation. or their constituents, or both, and if both, then which of the two has primacy?

In the old British tradition members of parliament think, first and foremost, in terms of the national interest, which overrides interfering parochial or sectional interests. A classic statement of this view will be found in the works of Edmund Burke, the grandfather of modern conservatives. On November 3, 1774, a Mr. Cruger and Burke rose to thank the voters of Bristol for electing them to parliament. Cruger professed to be their servant, subservient to their will, and bound to carry out their instructions.

Following him on the hustings, Burke observed that while their wishes should carry weight with their representative, “his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you ... These he does not derive from your pleasure ... These are a trust from Providence, for the abuse of which he is deeply answerable. ... Government and legislation are matters of reason and judgment, and not of inclination; and what kind of reason is that in which the determination precedes the discussion; in which one set of men deliberate, and another decide”?

The people of Bristol did not take Burke’s admonition seriously, treating it as something that he had said just to sound good. During the next few years they were disillusioned because Burke, as a member of parliament, acted as he had said he would.

Running for re-election in 1780, and facing an alienated electorate in the local guild hall, he defended himself in these words: “I did not obey your instructions: No, I conformed to the instructions of truth and nature, and maintained your interest against your opinions, with a constancy that became me. ... I know that you chose me in my place, along with others, to be a pillar of the state, and not a weathercock ... to indicate the shiftings of every fashionable gale.”

It may be interesting to note that, ironically enough, Burke’s noble disquisition did not mollify the disenchanted voters of Bristol. They did not re-elect him.

Algernon Sidney, William Blackstone, William Paley, John Stuart Mill, and Jeremy Bentham are some of the other English thinkers who emphasized the representative’s duty to follow his conscience and independent judgment. They maintained also that the nation, rather than an electoral district, must be the subject of a representative’s care, the locus of his concerns.

Whatever one’s philosophical persuasion, elections have to be organized on the basis of territorially limited and specific districts for reasons of practicality. Given the limitations of energy and financial resources. it is simply unfeasible for each one of the several hundred candidates to treat the whole nation as his constituency and take his campaign all over the country.

Emphasis on the national and the general, rather than sectional or local, still dominates the British notion of a representative’s role. But it does not exclude concern with the problems of individual constituents or groups, especially those resulting from the government’s neglect. Members of parliament will not intercede with civil servants on a constituent’s behalf, but they do try to obtain redress by asking questions of the minister concerned during the question hour.

The more influential American theorists (Thomas Jefferson, Tom Paine, John Taylor) reject Burke’s idea that a representative is to protect his constituents from the perils of their own foolishness. In their view the representative is no more than his constituents’ agent. He is to mirror their opinions in the legislature. Their right to instruct him, and his duty to obey, are beyond dispute.

In actual practice, American representatives are often able to act both parts. They act on the basis of their independent judgment on issues on which their constituents have no settled views. But when they do, the representatives must heed them as much as possible. Moreover, they are expected to do errands for constituents and bring benefits to their electoral district: federal funds, contracts, construction projects, offices and establishments, jobs.

In Pakistan, as in some other democracies, much depends on whether the voters have elected a person primarily because he is the nominee of a certain political party, whom they favour, or mainly because of his personal credentials and standing in the area. In the former case, if the preferred party is the party in power, and if the constituents’ needs or opinions are ignored, the blame will be placed more on the party than on their representative.

On proposed legislation and public policy representatives are likely to vote according to the position adopted by their party leaders in each case. In the past, consideration of bills was often perfunctory. Students of our legislative behaviour know of members who served for more than one term but never rose to speak. Those who did supported the party line.

Putting the past aside, and looking to the future, the newly elected representatives will perform better if, to begin with, they take the assembly and its work seriously. They will do so if their leaders — prime minister, members of his cabinet, and leaders of opposition parties — do the same, which means, if they remain on the floor of the house for a fair amount of time every day that the assembly is in session, and come prepared for debate..

We cannot assume that each member has adequate knowledge of matters that come before the house. One way to improve his grasp of issues may be to insist that bills receive adequate consideration in relevant committees before they are presented to the full house. The committees should adopt the custom of inviting outside specialists and representatives of interested parties to discuss the pros and cons of a bill while committee members listen and ask questions. This may greatly improve consideration of bills and debate on the floor.

A word now about the representative’s self-aggrandizement and constituency-specific work. During our first parliamentary regime (1947-1958), it was not common for members of the National Assembly to demand permits, licences, building lots, bank loans, and jobs for themselves and their relatives in return for their support of the government. During the second parliamentary regime (1972-1977), members belonging to the PPP felt free to pressure civil servants and police officers to act outside the law to the advantage of their friends, and to the detriment of their rivals. Unobliging officials were threatened with punitive action such as transfer to less desirable positions or locations.

This practice reached a new high during the third parliamentary regime (1985-1999). Now it became common practice among MNAs and MPAs to charge constituents a fee for interceding with the administration on their behalf. This was blatant corruption. If General Musharraf is going to be the grand overseer of the next government’s performance, he must not allow this contemptible practice to reappear.

Let us now ask if it is appropriate for a representative to try to bring roads, schools, clinics, and increased development funds to his electoral district. I think so; the representative should owe his constituents more than his wisdom and judgment (such as these may be) in resolving issues of national or general import. He should owe them some degree of solicitude for their local needs and concerns. A blend of the British and American traditions, referred to above, may suit us better.

It is hard to say how exactly the representative should proceed in bringing aid to his constituency. We have to develop an appropriate modus operandi. One may suggest, however, that the function of serving local interests belongs more to provincial legislators and members of district assemblies than it does to members of the National Assembly.

If we do recognize, in principle, that a representative owes service to his constituency, two changes in our thinking on the subject may be in order. First, emphasis on the “whole” should yield a bit to consideration for the parts. A candidate must then be a resident of the constituency from which he proposes to contest an election. It does not make sense for a Punjabi to contest from Sindh or Balochistan. Similarly, the practice of allowing a person to contest from more than one constituency concurrently should be discarded.

The writer is professor emeritus of political science at the University of Massachusetts, USA.

E-mail: syed.anwar@attbi.com

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Ten days to disillusion


By Kunwar Idris

IT IS a continuing paradox of Pakistan’s public life that the foundation of its growing fanaticism was laid and reinforced in stages by men who were enlightened and averse to it. They did so not out of conviction or in national interest but to ward off attacks on their personal lifestyle or damage to their political careers.

Only Jinnah was clear in his view and unwavering in his stand on the relationship between the state and religion. He spelled it out in his many speeches before and after independence, more particularly, in his address to the Constituent Assembly when elected its president. In essence his thinking was that religion is no business of the state, but the new state will be governed according to the principles of equity and justice enunciated by Islam and enacted into laws by a sovereign legislature.

As the leaders that followed Jinnah were increasingly of a weaker mould, they started deviating from his philosophy of the statecraft under the pressure of religious elements, who, having either opposed the creation of Pakistan or dismissed it as a chimera, were looking for an opportunity to enter the national mainstream.

The Objectives Resolution of 1949 and the creation of the Islamic Ideology Council at a later stage, Bhutto’s second amendment to the 1973 Constitution (defining the religious status of a section of the population), Ziaul Haq’s penal laws (Hudood, blasphemy, Qisas and Diyat, etc.) and the jihad doctrine, Nawaz Sharif’s 15th Amendment (Shariat) Bill are all to be seen and judged in this context. Ironically, it has fallen to the lot of a liberal Musharraf to catapult the clerics from the fringes to the centre stage of public life.

The centuries’ old religious schism, confined by and large to scholars and seminaries, thus has come to stay as a divisive force in the politics of Pakistan. The October 10 election has given this phenomenon an international dimension in an age in which the violent insurgencies in Kashmir, Afghanistan, Palestine and elsewhere have exposed conservative Muslim societies to the charge of roguery or terror.

However, the apprehensions that the emergence of the religious alliance (MMA) as an electoral force would threaten the American interests in Afghanistan or further harden Indian stand on Kashmir are mostly home-grown and exaggerated. Neither the Americans nor the Indians have shown much concern about this development.

The foreign governments and institutions know that the Afghan and Kashmir policies are determined entirely by the federal government, more particularly by the army high command. They also know that if the MMA plays truant, its governments in the North- West Frontier and Balochistan would risk dismissal.

With their eyes set on governments, the MMA leaders are increasingly talking of cooperation with the army and not of aid to the Taliban to drive the Americans out. They have come down to more practical but less consequential power play like weekly holiday on Friday and renaming the Frontier province.

The religious leaders would also realize that as the emotions and euphoria subside, the economic issues will come to the fore. The sentiment of jihad or Friday holiday would create neither jobs nor business opportunities for the people one-third of whom — more in the NWFP and Balochistan — do not have enough to eat. If by their actions and rhetoric the leaders further isolate the country from the global enterprise, poverty will spread and their governments would not last long.

In the heat of electioneering the MMA promised to provide half a million jobs to the unemployed youth within three months. That sounds more like a five-year plan for employment through investment in productive assets. A recent international survey of thirty capital cities has rated Karachi as the second worst place in the world for the foreigners to live in. Measured by the standards of safety, environment and infrastructure, only Port Morsbey of Papua New Guinea is worse than Karachi.

This finding by a highly specialized organization should suggest to the MMA and all the other political parties aspiring for power the priorities they must follow to make the country fit for investment and not for war. For that they have to collaborate with the army to end the strife on the northern borders, on the one hand, and persuade the army to end confrontation with India, on the other. Without that neither the conditions will be conducive nor money available for investment. The economic conditions may indeed worsen if the donor countries and international financial institutions, perceiving the jingoism and fundamentalism of the religious parties influencing Pakistan’s internal policies, withdraw their support.

The controversy surrounding the elections and the unprincipled, undignified quest for combinations to grab power since then has disillusioned the people with the political governments even before they have been formed. And it has been just ten days. Every party is accusing the other of cheating or collusion with the government and yet most parties are bargaining with each other at the power counter. Even the Q League, or the king’s party, has joined in this jockeying. The MMA has resorted to expensive advertisements to accuse the government of having snatched some of its seats to offer them to the MQM just as a poor vendor pays to a bully on the block to leave him alone.

The conduct of the elections, their outcome and the post- election behaviour of the politicians, besides causing instant disillusionment at home, has lowered the image of the country abroad. The cheer and hope on the threshold of a new, even though constrained, democratic era are fast waning.

The elections in Pakistan and Indian-occupied Kashmir held almost at the same time got entwined in the mind of the world media because the legitimacy of both was called into question by their own people. The Economist of London chose to comment on them together in one essay. Its title “One election that wasn’t rigged,” to the lasting shame of all of us in Pakistan, referred to the election in Kashmir. It also viewed the turn-out figure of 44 per cent amidst assassinations and disorder as respectable. Our Election Commission has chosen not to publish the turn-out figure nor to disclose it even on special request. It is believed to be lower than Kashmir’s though there was no fear of murder and mayhem here.

If the view of this independent and respected journal is largely shared by America and the rest of the world, our military government with its claims to neutrality, the Election Commission with a former chief justice as its head, and our feuding politicians all have combined to drive the last nail in the coffin of plebiscite in Kashmir. Once the bargaining at home is over, we should start the process with India to end the misery of the people of Kashmir and of our own people. It would also make life safer for the 140 million Indian Muslims.

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Copyrights and wrongs


The Supreme Court heard arguments last week in the case of Eldred v. Ashcroft, a constitutional challenge to the unhealthy state of modern copyright law. The Copyright Term Extension Act of 1998 is the most recent in a long series of laws that has serially expanded the protection for copyrighted works.

The Constitution gives Congress the power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

Spurred on by the campaign contributions of copyright holders, however, Congress has taken great liberties with this grant of power. Over the nation’s history, in fact, the phrase “limited times” has proven elastic. Copyrights initially protected works for no more than 28 years; they now extend 70 years beyond the life of the author and, in the case of corporate copyright holders, for 95 years.

The result is that works from 1923 are still owned privately. This does nothing to promote creativity, which is the explicit purpose of the constitutional language. But it does serve to keep material that has become part of the national culture out of the public domain — and it inhibits speech and the free exchange of ideas in the process.

There is no question that the plaintiffs in the current litigation — a group of publishers and individuals who deal in public domain materials — have a righteous gripe against Congress’ move in 1998 to offer an additional 20 years of protection. At some point, serial and retroactive extensions of “limited times” render copyright protection unlimited. And it seems wrong for Congress to be able to circumvent what would clearly be unconstitutional — granting indefinite copyright protection — by simply extending protection incrementally every few years.

But not all manhandling of the Constitution is redressable by the court. And the hard thing about this case is that at any given moment — including the present time — copyright law specifies a limit.

While that limited duration is currently far too long, it formally complies with the Constitution’s requirements. The question the court confronts, therefore, is whether to look behind this fiction and address what Congress is really doing or to defer and leave the matter in the political arena.— The Washington Post

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Some apples short of a picnic


THE declared result of an election is not always the real result. You have to peel off a layer from fact in order to reach the meaning. Two elections have produced two outcomes in the second week of October — one in Jammu and Kashmir and the other in Pakistan. They had one thing in common. There was little immediate clarity about who won these elections. But there was great clarity about who had lost them.

There were two principal losers in Jammu and Kashmir. One was Dr Farooq Abdullah. The other was President-General Pervez Musharraf.

In Pakistan also there were two clear losers. The first was America. The second was the doubly unfortunate Pervez Musharraf. Farooq Abdullah‘s defeat is as understandable as is his unwillingness to accept it. No one in power ever believes that he is going to lose.

No one who has lost ever thinks it is anything but a conspiracy that has defeated him. Farooq Abdullah‘s defeat came fifteen years too late, in fact. He should have lost in 1987, when the popular mood in the valley had turned completely against the National Conference-Congress alliance. He was saved that year by rigging, just as he had been helped before by electoral manipulation.

Arun Nehru, who was a critical player in Kashmir affairs from the years of Mrs Indira Gandhi, through most of the Rajiv Gandhi prime ministership and then into V.P. Singh’s tenure, confirms this.

It was Arun Nehru’s influence that played a substantial part in the first of the series of political mistakes that created this tragedy: the arbitrary dismissal of Farooq Abdullah’s government in that catastrophic year of 1984 when Mrs Gandhi accelerated both the crises that bedevilled India for more than a decade, in Punjab and in Kashmir. Rajiv Gandhi tried to repair the damage of 1984 by an alliance with Farooq Abdullah for the 1987 elections.

It failed even before it had started. When Rajiv Gandhi and Farooq Abdullah discovered that they were losing the elections, out came the familiar solution. Ballot boxes from selected constituencies were stuffed with votes that had never been cast, and Farooq Abdullah was declared a winner.

He can hardly be blamed if he is a little rusty now about fair elections. His son Omar may have a few questions hidden inside his legacy, but that is only one of the problems that he will have to deal with. President Musharraf need not have ended up with so much raw egg on his face. He has the reputation of being a risk-taker. This is one occasion on which he may have felt he was not taking a risk, when he chose his speech on Pakistan’s independence day to dismiss the autumn elections in Jammu and Kashmir as a farce. This was probably the assessment he was given by the ISI and the Pakistan embassy in Delhi.

Dictatorship has this problem: you are told what you want to hear. Moreover, obsequiousness can be a courtier’s revenge. But advice is not a decision. It was President Musharraf’s call to make this a centrepiece of his message to Pakistan and then, rather unnecessarily, overdo the theme in his United Nations speech in New York in September.

I suppose it is obligatory on the part of a Pakistan leader to raise Kashmir at the United Nations, but it is not obligatory to be nasty. President Musharraf placed his government’s credibility on his assessment of the Jammu and Kashmir election.

That credibility lies in tatters before an international community that has endorsed the legitimacy of these polls. President Musharraf may have driven Pakistan into a corner at a sensitive juncture.

Life in a corner has its dangers, mostly to others. There will be some temptation to blast apart the obvious satisfaction of Delhi in having lived up to its commitment and conducted free and fair elections, with credible participation by the people. The voter turnout matters less than the fact that the government was turned out.

There was a visible rise in violence after the first round of polls disproved fears of virtual boycott. The democratic process held its nerve, with the candidates showing particular fortitude as conviction grew that this election would mean regime change.

Now that the ‘farce’ has proved to be a serious exercise in democracy, what might be the response from some elements across the Line of Control? A dramatic terrorist attack that will shatter the optimism in Srinagar, tauten nerves in Delhi and drive India and Pakistan back to the brink of war?

The only hope against adventurism in Srinagar is confusion in Islamabad. The Pakistan election began on a strange note and kept getting weirder. This was not an election about change of power.

The army was in power, and ensured, by amending the Constitution 23 times, that it would remain in power. It was a royal election, for the post of general manager rather than chief executive. The turnout was low, and the counting slow. There is little need to explain what that adds up to under a military regime.

It would have been what it was meant to be, a cosmetic exercise, but for a startling message from the provinces bordering Afghanistan. A coalition of six religious parties, the Muttahida Majlis-I-Amal, campaigning with Osama bin Laden’s face on their posters, won 51 seats from the Frontier and Balochistan. The first implication is obvious. There is strong resentment against the American presence in Afghanistan. The second is oblique. If this is an indication of the mood in the Pashtun areas of Afghanistan then America has already created a pool of anger within the country it hoped to liberate from the supporters of Osama bin Laden. The consequences of this anger will become apparent in the coming year. It is a fact that Washington will have to deal with as it continues its war on terrorism and seeks to expand this rationale to take on Iraq.

In a royal election there has to be a King’s Party. The Pakistan Muslim League (Q) duly emerged as the largest single party in the house, with 76 of the 269 seats declared at the time of writing. But this was more than one apple short of a picnic.

The fact is that nearly two-thirds of those elected to the Pakistan National Assembly even in a controlled election where there was no hope of any change, are opposed to President Musharraf either because of his domestic policy or his foreign policy. In fact, he could find the clergy from the Frontier and Balochistan more of a worry than either or both of the exiles, Benazir Bhutto or Nawaz Sharif. Fundamentalists have always tried to hit above their weight in Pakistan’s politics, but they have never quite travelled beyond the fringe. Musharraf’s support for America’s war against Osama (to be fair, he had no real option) has brought the clergy onto centrestage. This will impact not only Pakistan but the whole region, because they are the keepers of a cause that believes in jihad against America, India and, piquantly, the apostate in the middle, Pervez Musharraf.

(This is the real reason for the second defeat of Musharraf.) Common sense suggests the need for a common response. Experience suggests that it will not be forthcoming.

For reasons that may or may not have anything to do with one another, these have been hinge elections. What happens after them will be more crucial than the elections themselves. A great deal will depend on how Islamabad deals with the rise of the clergy, whether it chooses to buy them, appease them or confront them. Policy, and events, will emerge out of this decision.

Delhi is more focused. Prime Minister Atal Behari Vajpayee pursued his commitment to free and fair elections even at the cost of his own party. The BJP would certainly have done better in a rigged poll. Vajpayee knew the outcome, which might explain why he did not go to the state to campaign for his party. Deputy Prime Minister Lal Krishna Advani took a significant step forward when, on the eve of the results, he announced that Delhi was prepared for talks with the elected representatives of the Kashmiri people as well as those who had not participated in the elections.

One hopes that similar sensitivity to ground reality, rather than an arid commitment to arithmetic will determine who will be the chief minister of the state after the formation of the alliance between the Congress and the party of the ex-Congressman, Mufti Mohammad Sayeed, the PDP. The Congress may have won 20 seats against the PDP’s 16.

The more important fact is that the Congress defeated the BJP in Jammu, while it was the PDP that stopped the National Conference in Kashmir. The state has to be led by the person who represents the valley rather than the plains. The problem is in Kashmir, not in Jammu.

It is rare when an election becomes a basis for hope. Such an election has taken place in Jammu and Kashmir. If that hope were to be belied, we would lose another generation to the gun.

The writer is editor-in-chief, ‘Asian Age’, New Delhi.

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