Ideals and expediency

IN my first article about the current lawyers’ movement, I had countered sceptics convinced of its ultimate futility by reminding them that the longest journey starts with a single step.

Now, as the movement grows from strength to strength; as hundreds of thousands of people turn up to show their support from Abbottabad to Lahore, Peshawar to Chakwal; as an increasingly desperate regime seeks refuge behind the corps commanders, I have still not been approached by any intermediary seeking to broker a compromise.

To save everyone’s time, let me make the bar’s position absolutely clear. The demands of the bar are non-negotiable and brook no compromise. This is because of the inherent nature of this movement.

To begin with, what are the objectives of our movement? Firstly, it is about changing the mindsets of our people. Throughout our history, the masses have viewed the bureaucracy, the military and the judiciary as part of the same ruling elite, cooperating with each other to subjugate the people. The minds of the masses have been inoculated against the concept of true justice. We were taught obedience at the cost of our liberty and independence.

This mindset is a hangover from our colonial past. These institutions were created by the British as a means of controlling the civilian populace. They were manned by Englishmen from the same background taught to venerate the same ideal — the preservation of the Raj.

Judges and ICS officers were not meant to empower the masses and improve their lot, they were there to keep the peace so the British could continue, unhindered, with their commercial exploitation and empire building. Likewise, the army’s primary role was internal not external. Their job was to quell local rebellions that could threaten British dominance. Alas! This role remains the same.

Decentralisation and separation of powers were never on the agenda. When a few thousand Englishmen set out to establish total control over a land of three hundred million people, any localised pockets of power could have proved fatal. A division of powers between the different institutions of state would be suicidal.

Our fight is for a separation of powers, for constitutionalism, for the principle that all men are equal before the law and for the ideal that the pen is mightier than the sword.

Thus the DC ruled his district (with the willing cooperation of the local elite, the feudal lords) with a free hand and without any constraints. His basic job was to keep the people quiet and subservient to imperial dictates.

If populist leaders, like Muhammad Ali Jinnah, B.G. Tilak or M.K. Gandhi, became too noisy, he knew he could always call upon his willing brothers in the judiciary to convict them for sedition or banish them from the practice of law. If matters went further, the likes of General Dyer would bail him out by shooting a few hundred natives for the restoration of ‘peace’.

The supposed impartiality and independence of judges in the colonial era is a complete myth. Of course, they were neutral when deciding land disputes between two natives. But when the interests of the Raj were at stake, when the interests of the people collided with those of their colonial masters, they never let their government down.Unfortunately, our nation’s independence and the departure of the British did not bring their system of governance to an end. Rather, a ‘coloured’ ruling establishment quietly stepped into the shoes of their departing masters and adopted their practices and beliefs. After all, it was more civilised to be an Englishman, notwithstanding that you were not admitted to their clubs unless you served as a waiter.

As a result, concepts such as the rule of law or the independence of the judiciary never took root in the minds of our people. We were never convinced that the judiciary’s true function was to guard the rights of the people and to protect the masses from oppression.

The first aim of our struggle is to change those beliefs. We seek to convince the masses that the courts are not there only to adjudicate property disputes between rich landowners or the competing commercial interests of multinational corporations, but that a truly independent judiciary will allow the common man to realise his fundamental rights. That judges with security of tenure will be fearless enough to administer true justice. That such judges will protect them from the abusive exercise of power by the wadera, the ‘seth’ or the SHO.

We seek to inculcate the belief that laws are not meant to be jealously preserved in jurisprudential tomes but to be applied, by activist judges, for the protection of the common man, and that the rule of law is an idea worth fighting for.

To do so, we have to change the mindset of our judges about their true duties and functions. This is our second aim. For too long they have functioned as if they were part of our military-bureaucracy, and now the plundering capitalist (the attempted sale of the Steel Mills being a case in point), establishment. They need to realise that they are no longer part of a foreign force seeking to forcibly impose its will upon the people. They need to end their alienation from the masses and align themselves with the wishes of the people.

Why is it that Justice M.R. Kayani considered it acceptable to contest elections and become president of the Civil Servants of Pakistan Association while he was sitting on the bench of the high court, particularly when the major portion of his duties involved the judicial review of the wrongful acts of civil servants?

It was not because of any particular lack of integrity on his part. Rather, he was known as an outspoken and honest judge. It is simply the pernicious elitism that pervades our entire judiciary that leads them to ally themselves with the ruling classes rather than with the masses. Our judges can easily identify with the causes of senior government officials but not those of a ‘kissan’. That is exactly why I call for a Supreme Court of the People of Pakistan.

Why is it that high court and Supreme Court judges consider it perfectly acceptable to lunch in elitist clubs and exchange views with industrialists, government ministers and advisers, bureaucrats et al, but shy away from sharing a cup of tea with the labourer or political worker at a trade union function? Does this not distort their perception about the needs and aspirations of the people of Pakistan?

The visit of the governor of Sindh — fresh from his debriefing in London — to the Sindh High Court is illuminating. Eyebrows were raised when seven honourable judges examining the May 12 tragedy refused to meet him and he was told that there could be no discussion on that issue. Why should there have been even an iota of surprise?

The government of Sindh, and the party to which the governor belongs, had been directly implicated in the tragedy of May 12. I say that at the risk of my life and that of my children.

Would there have been any astonishment if any judge refused to entertain a common litigant who wanted to have a cup of tea in the judge’s chamber and discuss the facts of his case? The commendable behaviour of the Sindh High Court judges was newsworthy because too often in the past our judges have fallen short of this standard of rectitude when it comes to the power elite.

The idea that judges interpret the law in splendid isolation strictly in accordance with recognised and time-tested legal doctrines is entirely fallacious. Our Supreme Court has repeatedly pointed out that the Constitution is an organic document and needs continuous reinterpretation in light of changing times and needs. So who will inform them about the changing needs of the hour? Must it be the generals, the industrialists and the bureaucrats?

Take the example of the reviled doctrine of necessity. Blatantly illegal and unconstitutional acts were repeatedly justified by our Supreme Court on the basis that they were necessary for survival of the nation. And who was the spokesman for the nation? The generals.

Why can’t the needs of the nation be determined by directly listening to the voice of the nation? Why must the doctrine of necessity always be employed in favour of the military-bureaucracy establishment? Can it never be used in the other direction — to force a general (even if he has invented a specious legal cover for his actions) to respect the legitimate desires and aspirations of the people?

I recall discussing this issue with the late Justice Dorab Patel. A splendidly honest man, he felt compelled, nevertheless, to defend his brethren. He justified previous judicial decisions based on expediency on the grounds that they were made by a few old men left alone in face of the entire army’s might. This movement seeks to reassure our judges that they are not alone. If they choose to do the right thing, the whole legal community and the entire nation will turn out in their support.

The learned Chief Justice is no charismatic politician. His speeches, on purely legal issues, do not enthral the nation. But when hundreds of thousands of people stand all day in Lahore’s scorching heat and brave all night Faisalabad’s thunderstorms waiting to catch a glimpse of him, they do so to salute the courage of the man. They do so to show their support for a judge who dares to say ‘no’.

Our aim is to instil that courage in every judge throughout the land. Our aim is to illuminate a path that leads beyond the Maulvi Tamizuddin, Dosso, Nusrat Bhutto and Zafar Ali Shah cases.

Our third objective is to restore civilian supremacy in Pakistan. We are no longer prepared to live under the barrel of the gun. Those guns and their wielders must return to their rightful positions; facing outwards at the frontiers of our land. The people will rule themselves.

Of course, our elected politicians will make mistakes, both honest and dishonest, and there will be misrule. But the court of accountability must be 170 million Pakistanis and not nine corps commanders. Elected governments must complete their tenure and face up to their failures at the time of polling instead of being handed a convenient excuse by their forced ouster at the hands of the military.

Fourthly, our aim is to strengthen all the institutions of our state; the executive, the legislature, the judiciary as well as the media. Only by strengthening these pillars and strictly enforcing the limits on their separate powers in accordance with the Constitution can we protect ourselves from tyranny and secure the rule of law. Only then can we rid ourselves of the inequities of the past.

To achieve these goals, we welcome the support of every segment of civil society; the media as well as labour unions, NGOs as well as political parties. But our demands are non-negotiable. We will not sacrifice our principles at the altar of expediency. Any dialogue with the establishment can only begin after they take steps that concretely display their commitment to these principles.

Our history is replete with tragic compromises. We don’t need to go too far. The Zafar Ali Shah case was a compromise by the judiciary. Musharraf’s military takeover was legitimised in exchange for a promise that elections would be held and a civilian government installed within three years.

Five years have passed since those elections, but all power still rests with Musharraf and his corps commanders rather than with the prime minister and his cabinet. On March 9, 2007, while cabinet ministers hunkered under their beds, the ISI, MI and IB chiefs wreaked havoc.

The Seventeenth Amendment was a compromise by the politicians. Musharraf was allowed to continue as president despite his uniform in exchange for, essentially, a verbal promise that he would shed it in a year. Characteristically, he reneged and four years later he was donning the same uniform when he attempted to fire the Chief Justice. No amount of apology, no matter how sincere, will bring back lost times and opportunities.

For once in our history, people from every segment of civil society, judges and politicians alike, need to stand up for ideals and eschew the culture of deal-making. The struggle is not for tawdry offices and superficial power; it is about principles. If we can maintain our united commitment to these principles, we shall triumph and overwhelm all opposition. But if we fail to learn from history, we will be condemned to relive it.

The writer is president of the Supreme Court Bar Association.

Identifying needs of education

AFTER politics and the economy, the subject that is being frequently discussed today in the media is education. One should welcome this positive development since public debates will enhance awareness about the needs and problems of this sector and thus generate pressure for reform.

The federal education minister, Lieutenant General (retd) Javed Ashraf Qazi, has been quite vocal on this score in a bid to establish the credibility of his policies. A few days ago he appeared in a PTV talk show. Earlier he gave a comprehensive interview to CRI’s newsletter.

As could have been expected, Mr Qazi had many good things to say about his achievements as the education minister. One would not dispute the merit of some of them though it is too early to say whether they will be sustained. One also wonders if these policy measures will not be misused.

For instance, he claims that it was his idea – though some dispute it – to institute the inter-provincial education ministers conference meeting every quarter as a forum for ministers to exchange views on various issues to learn from one another’s experience.

Again the school census that was held last year under General Qazi is also to be commended as an excellent move to ascertain the realities on the ground – which are incidentally bleaker than what the Pakistan Economic Survey has been claiming all along. How frequently will this census be held – that is if it is held again – will establish its permanent utility.

Another significant measure General Qazi announced was that the scheme of studies had been revised. Irrelevant subjects had been discarded, important subjects such as history and geography had been introduced, and there was to be no repetition and duplication of material in the textbooks. These are welcome measures. But conclusive comments will have to wait until the textbooks incorporating the proposed revisions are actually published.

But what is saddening is that the federal education minister’s observations betray a gross lack of understanding of the needs and problems of the common man.

For example, in the TV programme General Qazi remarked that government schools are losing enrolment because people want their children to learn English and so they send them to private schools. The public sector schools teach in Urdu so they are falling out of favour.

He also promised to end the class system (‘tabqati nizam’, is the term he used) that operates in education by making all schools dual medium. He also went on to say that English will be taught from class I and it needed no special skills for a teacher to teach “ABC” (the English alphabet) to a child who had just entered school.

Unfortunately, this is not a correct assessment of what ails our education sector. We know very well that the enrolment in government schools is falling not so much because of their medium of instruction policy but because they are malfunctioning, their standards are dismal, the teachers are perennially absent and there is no accountability

or monitoring of their performance.

The parents who send their children to school want them to learn something that is relevant to their lives and become more productive citizens and better human beings.It is the failure of the public sector schools in this context that has disappointed parents.

More importantly, a common lament is that parents have no way of holding the school management accountable and registering their dissatisfaction at the teachers’ performance. The private schools – even the modest ones in the katchi abadis – are more responsive to the parents’ complaints and give them a hearing.

One can hardly attribute the parental dissatisfaction to the government schools’ failure to teach their children English. The private schools hardly do any better in terms of teaching English irrespective of their claims.

As for the social stratification the federal minister wants to abolish, he will have to look deeper into the matter than the superficial observation he made. The factors responsible for this divide are to a large extent economic, social and the fact that the entire administrative, judicial and economic system is biased in favour of those who read, write and speak good English that gives a select elite a degree of empowerment and excludes the others from the corridors of power.

As long as wealth is unequally distributed and profound economic disparities persist it is unlikely that class barriers will be eliminated by simply teaching the poor man’s children some half baked English. Moreover, adopting an ill-considered medium policy will ensure that the government school children will lose out in many ways.

They will never be able to understand what they are being taught ensuring that their intellectual skills remain stunted. Thus they will not succeed in acquiring any upward economic or social mobility. The class divide may even worsen.

The misconception is that some crash courses in English to teachers will qualify them to teach the English language as a subject from class I and science and mathematics in English from class III.

One cannot be certain what the outcome of this experiment will be. Given the poor knowledge of science and English language skills of the teachers, will they ever be able to give a child comprehension of various scientific concepts in an unfamiliar language and enough proficiency in this foreign tongue to be able to communicate in it? Will this make him fit to compete in the globalised world of today – the supposed aim of our language policy?

Another example of our policymakers’ lack of understanding of the problems is the education minister’s insistence that in due course he plans to standardise the academic calendar, the textbooks and the examinations all over the country. Nothing could be more damaging.

This unnatural uniformity born of the military’s regimentation mindset will not be good for a society whose diversity is its wealth.

Moreover, natural elements such as geography, climate and physical needs of the various regions of the country demand a localised approach.

The Indus Resource Centre’s schools in Khairpur and Sehwan have tailored their school terms to the harvesting seasons when entire families move away from home and children cannot attend classes. And this approach has actually worked very well.

Mind your head!

WHEN people start handing down the death sentence at the drop of a hat (as the British are fond of saying) columnists should be doubly careful about what they write. One never knows when a word, heedlessly penned in a light mood, may qualify one for the executioner’s axe.

No other people invoke the penalty of death so much as the Muslims of Pakistan, and that too on grounds of religious law, and sometimes on grounds of religious lawlessness. Everyone of us is an expert in the shariah and the fiqh. I suppose that is why we have not been able to adopt the Islamic system of justice, because we all have our own interpretation of it, and no two persons agree on what should be the punishment for what.

For instance, we have been taught as Muslims that the penalty for killing an innocent person is death, but many Pakistani Muslims believe that if you take the life of a member of a particular sect – even if it is a woman or a young boy – you will go straight to heaven without even having to show your ID card.

While no one is bothered about finding out who is responsible for the deaths of thousands of little children due to malnutrition; while the perpetration of heinous crimes against women stalks the country like a plague; while law and justice are throttled at birth after some criminal acts and no one is found guilty; some poor chaps who deviated from a religious ritual in good faith are condemned to death by some maulvis .

You will enjoy this example. Some years ago there was a demand that those in the NWFP who had opted to celebrate Eid-ul-Azha one day before the rest of the country should be sentenced to death. And who was the learned scholar or judge who pronounced this sentence? Not a member of the Federal Shariat Court or the Islamic Advisory Council, and not even a senator or MNA with the word “maulana” prefixed before his name. It was simply a gentleman by the name of Khalid Ejaz Mufti of Lahore.

Now don’t tell me you haven’t heard the name before. To tell you the truth I too hadn’t and I’m ashamed of my ignorance. So much for our knowledge about “the prominent writer on ruet-e-hilal and secretary-general of the Idara Falah-i-Insaniyat,” as an Urdu daily described him.

I got to learn about Mr Mufti and his remarkable fatwa from a clipping of a daily sent to me by a friend in Lahore. Just as ignorance of the law is no excuse, similarly ignorance about such a famous person is unforgivable. I hope it doesn’t make me and you liable to be hanged or garrotted. As they say, “mind your head.”

Had this mufti gentleman castigated the maulvis of the Frontier for their indecent hurry to celebrate Eid, many of us would have been one with him. But the point is, can an ordinary Muslim prescribe the death sentence for another Muslim just because he is a “prominent writer on ruet-e-hilal and secretary-general of the Idara Falah-i-Insaniyat?”

Apparently the road to falah-i-insaniyat, the welfare of humanity, passes close to the executioner’s block. Maybe Mr Mufti is not an ordinary Muslim, and maybe all muftis are qualified to issue fatwas. As I have just said, we should all mind our heads while going that way.

Who is to blame for all the fuss about two Eids in the country? If as Muslims we honestly believe that it is the new moon which is to signal the Eid, then there are no options for us. We should not depend on any other phenomenon to decide the matter. So why complain against anyone?

If Maulana Khudpasand Khan of Bannu swears that he saw the crescent with his own two eyes, then who are you or I to allege that it was a hallucination? And least of all, who are those astronomer chaps who want us to believe that scientifically it was not possible for the new moon to appear on that evening?

The best joke is that these astronomers ask why they are never associated with ruet-i-hilal. My dear scientists, what are you talking about? Where do you think you are living, in New York or Tokyo that you prattle about scientific know-how? If you ask Mr. Khalid Ijaz Mufti you may well be talking blasphemy. Remember what happened to Galileo, and mind your head.

In a country in which half the religious leaders still believe that the conquest of the moon was a cooked-up story, and where more than half the educated people think that earthquakes are caused because of the sins of Muslims, what credibility do you expect for yourself and your exact scientific calculations? Only schoolchildren will believe you. The moon is our sacred possession and we’ll do with it what we like.

If we have no respect for the science of astronomy which can predict almost to a minute when the Eid moon will appear a hundred years from now, then what is the use of arguing for a common Eid in the whole of Pakistan? The first of Ramzan and Eid-ul-Fitr are not far off, and the prime minister made an impassioned appeal the other day to give science its due place in our scheme of things. Let us see how scientific we can be this time.

Apart from their religious aspect and the congregational prayers, the Eids are occasions for enjoyment and family get-togethers.

Republicans’ prospects

AN unpopular incumbent, pursuing a disastrous war and domestic policies that have enraged his own base – in most European democracies that would be a recipe for crushing defeat at the ballot box. But the diffuse nature of politics on the other side of the Atlantic means that is not necessarily the case. Anyone expecting the Democrats to sweep into the White House next year should think again.

The next US presidential election is still 17 months away and neither Republicans nor Democrats are even close to settling on their nominees. While opinion polls show a generic Democratic candidate defeating his or her Republican opponent, once real names are put to the public the result is neck-and-neck. One reputable pollster found recently that Rudy Giuliani would beat three of the leading Democratic candidates – Hillary Clinton, Barack Obama and John Edwards.

If George Bush was in the running things would be very different. His popularity sits at Nixon-like levels and his signature domestic policy, immigration reform, is dividing Republicans. But Mr Bush will not be on the ballot in 2008 and his likely successors are doing everything they can to flee from him. It is no coincidence that the two leading Republicans – Mr Giuliani and Fred Thompson – carry no baggage from the failures in Iraq.

The sudden rise of Mr Thompson illustrates the resilience of the Republican machine. Once an undistinguished senator from Tennessee, he is now better known for his subsequent acting career as a district attorney in the television series Law and Order. Mr Thompson has yet to officially declare that he is running, although it is no secret that he will do so next month.

Since he left office in 2000, Mr Thompson bears no bruises from the Bush years. His combination of conservative politics and acting makes him the natural heir to Ronald Reagan. He has already raced past John McCain, the long-time front-runner, and is gaining fast on Mr Giuliani. A formidable general election candidate, he is struggling to convince the Republican base that he is one of them; Mr Thompson has no such problem.

Things are no clearer on the Democrat side of the aisle. The party also has a leading undeclared candidate in Al Gore, although Gore is unlikely to run unless Ms Clinton somehow falls out of contention. But the established candidates each have peculiar weaknesses. For Ms Clinton it is the significant levels of hostility she provokes. For Mr Obama, his thin resume makes him something of a blank slate. John Edwards, meanwhile, is a trial lawyer who promises tax rises – an unappealing combination to middle America. The polls, though, speak with one voice: Ms Clinton's formidable operation and polished performances on the campaign trail mean she is ahead of the pack.

––The Guardian, London