Judiciary on trial?

THE ‘reappointment’ of eight Sindh High Court judges on Wednesday adds a new dimension to the ongoing trial of the judiciary. The government and the jurists by its side insist that any restoration of the pre-Nov 3 judges requires fresh oath-taking for it to be constitutional, as concurred by the eight judges in question. Their equally qualified opponents, however, refuse to condone this view because in principle it amounts to stamping approval on Gen (retd) Musharraf’s extra-constitutional action of Nov 3. A majority of judges who stood retired after they declined to take a fresh oath back then remain in limbo, even as they draw their salaries today as before Nov 3, 2007. So what’s going on? Are the best minds in the legal community, on either side of the fence, so very inept at getting the issue resolved? Is it the lack of will on the part of the government and the opposition to budge from their stated positions that is hampering a resolution? Or, is it just bad politics at work from all sides? Accusing the lawyers’ movement of politicking and thus delaying reinstatement of all the judges, the government by its latest, selective restoration of a handful of them stands charged with the same allegation.

The state of the judiciary, what with the judges being on the payroll but not occupying their seats and those who were appointed in their lieu holding office begrudgingly, is unenviable. With the lawyers showing little fatigue in pushing for their demands and planning sit-ins across the country until they get what they want and not a speck less, the crisis is far from over. Need it have dragged the way it has and got nowhere near resolution since after the February election? It’s amazing that even after the PML-N’s breaking away from the ruling coalition and thus out of the equation, the PPP is not talking about its own, drafted constitutional package which it said would resolve the crisis, so everyone could move on from the sordid episode. The nation and the world need not behold the drama that has gone on way past the curtain call. The irony is that the lawyers’ movement for the rule of law, which is bringing home laurels from international quarters, is seen with suspicion and misgivings by a democratically elected government. The least the two sides can do is to get talking to each other rather than talking at each other, and be led by constitutionality and law.

The NFC challenges

WE have had a number of National Finance Commission (NFC) awards in the past. But the vertical distribution part (between the centre and the provinces) of these awards was never regarded as fair by the four provinces. And the horizontal part (among the four provinces) was vehemently disapproved by the three smaller provinces. The current NFC award is an ad hoc arrangement. So, the NFC reconstituted on Tuesday faces a formidable challenge. If it succeeds in formulating a ‘fair’ award acceptable to all the four provinces and the federal government without a hint of reservation, it would have accomplished a miracle. But for this miracle to happen, the political leadership voted into power on Feb 18 would need first to translate into reality some of the promises it had made in its election manifesto — the most relevant of these to the issue of resource distribution being the promise to accord autonomy to the provinces. This would automatically lead to a politically and financially leaner federal government. Such a federal government responsible for only four subjects — finance, foreign affairs, communication and defence — would become a more well-organised and efficient machine genuinely capable of good governance. And it would need much less from the divisible pool for its upkeep. In fact it could meet all its financial obligations for the four ministries with no more than 30 per cent from the total pool. This would leave enough for Punjab to get a share commensurate with its population, Balochistan a share to match its size, Sindh a share corresponding to its income and the NWFP a share adequate to tackle its backwardness.

While full financial and political provincial autonomy would, to a great extent, take care of the current imbalance in the vertical distribution, the imbalances in

the horizontal distribution would need to be resolved with a formula, which while attempting to narrow the developmental gaps among the provinces would at the same time ensure that progress in the relatively better off provinces does not get retarded. This is easier said than done as the past experience has shown. Since 1973 there have been seven National Finance Commission awards. Only three of these (1974, 1991 and 1997) could be implemented. The rest (1979, 1984, 2000 and 2005) failed to reach consensus and ended in a deadlock. The one promulgated in July 2006 has no input either from the provinces or the federal government. It was a presidential fiat. What is clear from all this is there is no perfect formula completely satisfactory for all the four provinces. So efforts should be made to reach a compromise formula in a spirit of give and take with no one going home feeling that he has been short-changed.

The bane of plastic bags

IN early 2006 the Sindh government imposed a ban on the manufacturing, sale and use of polythene bags of less than 30 microns’ thickness. This move however has not quelled the concerns of environmentalists and citizens as an ensuing crackdown was not sufficient in ensuring that the ban was enforced. Plastic bags litter the environment in large quantities and provide breeding grounds for bacteria, mosquitoes and flies. They are notorious for choking sewerage and drainage systems and being hazardous to sanitation and hygiene. A phenomenon related to this has come to the fore recently — the recycling of plastic bags. A large number of factories associated with the informal recycling industry in the city burn plastic in residential areas and release lethal fumes into the air. This not only adversely affects the health of the workers but also pollutes the neighbourhood.

Is the elimination of plastic bags such an insurmountable task? When the Director-General of the Sindh Environment Protection Agency (Sepa) was contacted to comment on the recycling of plastic by burning, he said he had no knowledge on the subject. This is representative of the inertia of the environmental agency. The issue of lack of experts and financial constraints came to the fore once again in Sepa as a deputy director admitted that due to these constraints the agency had been unable to conduct any research on this matter. According to an expert at the Institute of Environment Studies, Karachi University, dioxin, which is highly carcinogenic, is released into the air when plastic is burnt. Hence it is logical that if such factories are to exist, they should be located 20 to 25 kilometres away from the city and the fumes released by plastic burning should not be allowed to escape into the air. In countries where environmental concerns are addressed seriously there is a complete ban on burning plastic openly. The answer may lie in directly stopping the use of plastic bags. This requires a concentrated effort not only by the government but citizens themselves. Alternatives such as paper bags must be considered, while these prove to be expensive for most a favourable option is reusable carriers. Returning to this practice of yore will encourage a cycle of conservation and eliminate the need for plastic bags altogether.

OTHER VOICES - Pushto Press

Need for Pushto centre

Tolafghan, Kabul

A COLUMN titled ‘The Pushto Holocaust’ on a website from Kabul says, “The international killers have got a readymade weapon in their hands, and that is the ignorance of the Pakhtuns. The Pakhtuns are probably the most ignorant and least conscious … nation on the face of the planet.” We agree with the writer’s assertion that the Pakhtuns are the most illiterate nation on the face of the earth but we beg to differ … that they are the least conscious or sensible. We have evidence for the first part of the assertion in the shape of our observation that the Pakhtuns have been killing their own brethren for the last three decades at the behest of the enemies of Pakhtuns. The fact that the Pakhtuns are the most illiterate people has solid reasons behind it. We mention some of these….

Not one government in Kabul … has ever worked for the education of the Pakhtuns and the development of the Pushto language. Besides the apathy of governments in Kabul … the mullahs have all along been busy exhorting the Pakhtuns to reject modern skills and modern education so much so that Pushto has been represented by these mullahs to be the language of those who will go to hell. On the other hand, those few who were able to think, read and write among the Pakhtuns would usually write in Persian and Urdu. If Pakhtun writers continue to ignore their first language in books, poetry, drama and films, who else will write in their language? While researching the late Abdurrashad, a prominent Pushto writer, we found a book in which the writer had enumerated Pakhtun poets who wrote in Urdu. They were some 383 in number. Pakhtun writers … who wrote in Persian, were some 200 in number.

In the present era, when all nations are engaged in writing on diverse subjects and creating different genres in their first language, the Pakhtuns are still busy writing in the language of others. It seems the Pakhtuns are writing for other people instead of for the Pakhtuns. The Pakhtuns don’t have a single cultural and linguistic centre of their own. The Pakhtuns in Kabul have to teach Persian to their children. If they don’t they will not be able to earn a living for their families. The Pakhtuns in Peshawar have remained under the shackles of slavery first of the British and later of Punjabi imperialism and so one does not expect much from the Pakhtuns living there. The Pakhtuns will remain illiterate until the Pakhtun intelligentsia and politicians acknowledge this problem and do something to develop a centre devoted to the service of the Pushto language and culture. — (Aug 26)

— Selected and translated by Khadim Hussain.

Supremacy of law in Islam

THE laws of Islam comprise rules of conduct revealed by God to His Prophet, whereby people are directed to lead their lives. Thus, revelation is the source of Islamic law which is available to us in the form of the Quran and the Sunnah of the Prophet.

A unique aspect of Islamic law is that it attributes the authority of making laws to God only. According to Islam, no man or body of men can ever be capable of or allowed to make laws for other men; “.... We have bestowed from on high upon thee, step by step, this divine writ, to make everything clear, and to provide guidance ....” (16: 89)

However, where there is no room for the making of new laws, there is also no prohibition on the innovation, extension, and re-interpretation of the existing laws. This very process is denoted by Ijtehad. It is the method of Ijtehad by which God has enabled Muslim jurists to: (1) make provisions for the developing circumstances; and (2) prove Islam as a system of life practical for all times.

In Islam, unlike the western legal systems, there is no room for the authorities to be immune from the law. Even the head of an Islamic state may be challenged, in both official and private capacity, in the court. Obedience to a ruler for that matter is contingent on his enforcement of Islamic laws. In other words, if the government fulfils the requirements prescribed by the Quran and the Sunnah, its claim to the allegiance of the people becomes absolute. The Prophet said: “A Muslim has to listen to and obey (the order of his ruler), whether he likes it or not, as long as his orders do not involve disobedience (to Allah). But if an act of disobedience (to Allah) is imposed, one should not listen to it or obey it.”

It also becomes evident that the accountability of the ruler of an Islamic state is twofold: (1) he is answerable to God, as power bestowed on him by God is a sacred trust; and (2) to the people who are his subjects.

The office of judge is independent of all executive control and he can exercise his authority without any form of interference from influential quarters. He decides all disputes in the light of the Quran and the Sunnah. Further, a judge is required to be impartial and decide on the merits of the case.

The following statement of the Prophet, which he made while deciding the case of a noble woman who had committed theft illustrates the same: “Verily those who were before you were destroyed because when a noble man from among them committed theft, they passed no sentence on him. By Allah, had Fatima, the daughter of Muhammad, committed theft, I would have cut off her hand.”

The Quran and the Sunnah define the main responsibilities of a judge. The Pious Caliphs issued detailed instructions about the qualification, appointment, and conduct of judges. Letters written by Caliph Ali to his governors regarding the administration of justice in their territories thoroughly explain who should be a judge and what should be the conduct of a judge. Caliph Umar’s case is an example of how unsuitable judicial behaviour must be dealt with. He once had a lawsuit against a Jew. When both parties went before the judge, the latter rose in his seat out of deference to Umar who looked upon the act as an unpardonable judicial weakness and dismissed the judge at once.

Political personality disorder

CITING court documents, London’s Financial Times has reported that as recently as last year presidential contender Asif Ali Zardari was “diagnosed with a range of serious illnesses including dementia, major depressive disorder and post-traumatic stress disorder.” This has been attributed in part to the alleged torture he suffered while in prison in Pakistan.

In fact, people possess a number of traits that are components of their personality. Collectively these characteristics present themselves in the form of certain behaviour patterns that are either desirable or undesirable. Some of these traits are paranoia, jealousy, obsession, attention-seeking, dependence, sensitiveness or an exaggerated sense of self-importance.

These traits can create problems for the person possessing them during social interaction. However, these traits become threatening when they assume the form of a fully fledged personality disorder. This has been defined by the Diagnostic and Statistical Manual IV as “enduring pattern(s) of inner experience and behaviour” that are sufficiently rigid and deep-seated to bring a person into repeated conflict with his or her social and occupational environment.

Pakistan has been unfortunate in that many of its leaders have played havoc with the country and caused it immense harm. This can be attributed to the fact that a number of them have suffered from personality disorders. Yet this has not been widely recognised because little emphasis is placed on the mental health aspect of people in a position of responsibility in public life.

One wonders why this is so when professional institutions subject candidates desirous of entering them to rigorous psychological tests before appointing them. Why are political leaders not subjected to similar screening before getting unrestricted licence to enter politics? A suitable personality test would be worthwhile for highlighting undesirable traits or personality disorders falling under the psychiatric diagnostic category.

Is such screening and suitable counselling that focuses on ethics and morality too impractical a proposal? Those elected and aspiring to take oath of public office must be subjected to similar physical and psychological tests as many institutions, such as the armed forces, prescribe. Revalidation and annual appraisal would be ideal but may prove to be too ambitious a suggestion at this stage.

In some of our leaders, we have observed strong traits of narcissism that is reflected in feelings of self-importance, a craving for admiration and exploitative attitudes towards others. They have unrealistic and inflated views of their talents and accomplishments and may become extremely angry if criticised.The anti-social traits of some leaders have been widely discussed in the print media. They have been described as having a propensity to lie, being manipulative and selfishly disregarding the rights of others. A majority of political leaders have no doubt displayed histrionic behaviour at times that have caused great embarrassment internationally.

A number of reasons are given for these personality disorders. Besides being inherited through genes, they may be triggered by faulty or dysfunctional upbringing and malfunctioning environmental influences. An example of this can be seen in the president who has just stepped down. He identified some of his own problems in his autobiography. He writes about his bullying tendencies; an extension of this behaviour was manifested in his authoritarian attitude, love of power, low frustration tolerance, anger and sensitivity to criticism. Such personalities generally tend to be rigid. They may take some very good decisions but later commit mistakes as a result of over-vigilance and anxiety.

Some leaders have displayed behaviour reflecting a high sense of insecurity and personal inadequacies. Our political leaders are also in the habit of constantly blaming others and holding each other responsible for faulty outcomes of policymaking or decisions. Bullying is also a trait which prompts politicians to level allegations against their opponents and subjects them to torture, defamation etc.

It seems that there is a problem with the country’s politics which has attracted a large number of politicians with faulty personality traits. By forming a mafia they strengthen their hold on power. Those few who tried to do something better for the nation were assassinated or wiped out.

A number of leaders remained in exile, had luxurious lives and plenty of money but were always craving to return with the intention of acquiring power. This can be explained in terms of power addiction, a condition which drives personalities with moderate to severe degrees of craving to gain power. It is sometimes argued that those addicted to power may have specific brain receptors for such addiction or there may be a specific gene that is coupled with a particular type of personality. However, there is no conclusive evidence.

It is interesting to note that if gratification is not acquired such individuals may develop complications like anxiety, depression and paranoid disorders. The existing faulty personality trait if combined with power addiction may result in faulty administration if such individuals are given the reins of power. One wonders whether diagnostic manuals will consider a new category by the name of ‘political personality disorder’. Besides, the idea of personality testing is not too ambitious if we wish to improve the socio-political scenario of the country.

amin.muhammad@med.mun.ca