THERE were times when Pakistan took pride in the independence of its judges as much as in that of its tribesmen. Now a question mark hangs over both.

In addition, the tribal elders were loyal and the judges learned. The question mark hanging over these virtues, if at all, is bigger. Though their place in society and role in governance are poles apart, the judiciary and the tribes now stand at the centre of the storm of national discontent. While the courts are faltering in administering the law the tribes are conniving in militant terror, if not actually fomenting it.

There was a time when the chief justice of Pakistan wouldn’t agree to dine with the prime minister lest the people think he was in any way beholden to him. Sir Abdur Rashid may have been unduly circumspect in declining Liaquat Ali Khan’s invitation to dinner but later all kinds of doctrines came into existence to justify deviations from the constitutional course.

His successor, Justice Munir, was a regular diner with Governor-General Ghulam Mohammad. The precedent that he set has since held sway despite Cornelius’s powerfully reasoned dissent. More benches and judges have followed the example of Munir rather than that of Rashid.

The tribes straddling Durand Line once kept vigil over the country’s un-demarcated northwest frontier to keep undesirable intruders out. Now some among them allegedly shelter, train and arm foreign terrorists. The answers to judicial and tribal problems are similar. Both should be left to work under the law or following their respective traditions without interference by the government or the military.

Terrorism now can be compared to a cyclone with Pakistan as its eye. The worldwide indignation the Mumbai carnage has aroused no longer leaves the government here free to deal with terrorism as it has been doing in the past or would now like to do. Almost certainly it would feel compelled to follow the strategy the world and regional powers evolve. This subject could rest at that till the investigators finally get a clue.

Pakistan, however, is free to put its judicial house in order, and that it should be doing straightaway if the people’s vanishing confidence in the impartiality and competence of the courts is to be restored. The essential steps towards this goal would be to determine how to select the judges of the superior courts and enable them to act freely under the law.

The appointment of judges in most countries is in the hands of the chief executive of the country. In Pakistan’s constitution, as amended by Gen Musharraf, they are appointed by the president at his discretion, though the chief executive is the prime minister. So it seems it will remain as President Zardari has shown little inclination to undo Musharraf’s amendment.

There is thus no getting away from this position although, in a cynical vein, such judges cannot but be the creatures of the party in power. The remedy, however, lies in laying down some elaborate and binding eligibility criteria rather than involving more people who would surely bring to bear their own preferences and prejudices on the selection process.

Equally critical is the selection of the chief justice which is also the privilege of the president. The judicial advice has been to go by the seniority of the judges which surely precludes discretion but, more dangerously, also merit. It has given the country chief justices who would never have made it on merit. Yet it is a safe rule. Ignoring seniority carries the hazard of a judge becoming a chief justice who is neither senior nor competent. Such a move is said to be in the making at this very moment.

This risk, however, must be viewed against an eventuality like the one reported by a journalist from America on the appearance of deposed Chief Justice Iftikhar Chaudhry at the Harvard Law School and Georgetown University. “The listeners,” the journalist wrote, “sat squirming and heaved a sigh of relief” as Chaudhry read his incoherent, interminable speech and “hardly a sentence from his off-the-cuff remarks was mistake-free.” Mr Chaudhry, as we all observed, had brought about almost a revolution by defying enormous pressure to resign. But then the chief justice of a country must also be able to communicate with the audience of an institution which had heard Nelson Mandela on receiving the same medal of honour as was awarded to Iftikhar Chaudhry.

Another, and more painful, hazard of the seniority rule is currently being reported in the press in great detail concerning the conduct of the successor to Mr Chaudhry. It has been noted by some commentators that the incumbent chief justice should have stepped down before the matter of his daughter’s marks’ enhancement assumed the proportions of a scandal.

Incidentally, the charges that advocate Naeem Bokhari had made against Justice Chaudhry (he still lays claims to the office) should also be investigated for they were equally degrading. If found baseless, at least Mr Bokhari should be punished for the perjury even if the chief justice, who raised a storm which swept away Gen Musharraf, is not to be indicted.

Lawyers and lawmakers need to sit together and suggest a method for choosing a chief justice who is not just the most senior but also able, articulate and unapproachable and whose integrity is beyond reproach. Surely we have judges combining all these virtues in their persons.

While it is for the president and parliament to lay down a procedure for the appointment of judges which is transparent and fair, it is equally incumbent on the judges not to trespass on the jurisdiction of other organs of the state. They must enforce the law but not create one. If a law is defective, as Justice Katju of India recently observed, “it is for the people to correct the defects by exercising their franchise properly or by other lawful methods e.g. peaceful demonstrations”.

Judges must not act like legislators or administrators. Too late though it might be, it must be said expressly for the benefit of Mr Chaudhry that a chief justice is not the ultimate saviour of the people nor should his court be the institution of first remedy. If he could be one, or both, it is when a citizen is persecuted or even murdered for his religious belief. And that no chief justice has ever been — not even Chaudhry. n

kunwaridris@hotmail.com

IT has become a routine in diplomatic practice that even when representatives of two nations, meeting to resolve their differences, fail to agree on substantive issues, they will conclude their meeting with a declaration of their resolve to cooperate in combating terrorism.

I imagine that cooperation in this regard means that the parties to such a declaration will exchange information bearing upon each other’s peace and stability, and if they locate the likely perpetrators of mischief, they will arrest them or turn them over to the other party.

Some of these agreements to cooperate may be largely ceremonial or ritualistic. Let us say that the governments of Pakistan and Yemen (or, for that matter, Cuba or Tunisia) have made such an agreement. It is most unlikely that either of them will have information concerning individuals or organisations that intend to harm the other. Their agreement will then never become operational.

Pakistan and India have had a long history of mutual tension and conflict. Some three years ago they were persuaded to begin a peace process to normalise their relations. Since then their representatives have been meeting to conduct a composite dialogue. Five rounds of this dialogue have taken place but none of the substantive issues between the two countries has so far been settled. But at the end of each of these meetings their delegates have resolved to cooperate with each other in the war on terror. Yet each side has periodically accused the other of sponsoring terrorist attacks in its territory. It would seem to follow that their professions to the contrary notwithstanding, neither of the two countries has as yet concluded that it can trust the other or even that it wants the other as a friend.

This is the context in which one is to view India’s allegation that Pakistan was (or elements based in Pakistan were) involved in the recent terrorist attacks on several luxury hotels in Mumbai, in which some 200 persons, including numerous American and British citizens and other foreigners, were killed. The Pakistan government has offered the Indian government unconditional cooperation in investigating this heinous crime. What would cooperation mean?

India wants action to be taken against certain militant organisations in Pakistan such as the Jaish-i-Mohammad and Lashkar-i-Taiba. It may be noted that these organisations were banned in Pakistan some years ago and India should be aware of this fact. One may then presume that it wants their former activists to be located and some kind of punitive action taken against them. It has also given Pakistan a list of some 20 individuals whom it suspects of involvement in earlier acts of terrorism in that country and whom it wants extradited. Some of these persons are Indian nationals said to be hiding in Pakistan. The list includes a few persons who are not known to be in Pakistan.

Then there are individuals outside the Indian list and the militant organisations mentioned above: the elements based in Pakistan who have allegedly been mounting acts of terrorism in India. Their identities and whereabouts are not known to either government. India expects the Pakistani authorities to look for them, find them and apprehend them.

This is a very tall order, virtually impossible to comply with, partly because it is in the nature of a wild goose chase and partly because it requires the Pakistan government to take action that the courts will not sustain. One may be certain that Pakistani citizens detained on suspicion of involvement in acts of terrorism in India will apply for writs of habeas corpus, which will most likely be granted in the absence of credible supporting evidence that the Pakistani authorities can present. They will not be able to present it because they do not have it.

These are the reasons why the Government of Pakistan has been asking India to name the persons it suspects and hand over solid evidence against them before it can find and hold them. It is more than likely that on its part the Indian government too cannot come up with evidence against these suspects that will bear judicial scrutiny. These procedural difficulties will probably not arise in the case of suspected terrorists who are Indian citizens residing or hiding in Pakistan. The government of Pakistan may want to extradite them to India if it can find them.

As mentioned earlier, President Asif Ali Zardari has offered India his government’s unconditional cooperation for investigating the Mumbai bombings. This offer, like similar offers in the past, included the idea of a joint investigation. I think it means that Pakistani experts would join their Indian counterparts at the location where the terrorists have struck. The two sides working as a team would inspect the site and interrogate the suspects.

American and British agents went to Mumbai to take stock of their dead and injured citizens and to aid the investigation. They may have had techniques and equipment which the Indians did not have and which they could bring to bear on the investigation. This is not likely to have been the case with any Pakistani investigators who might have gone out to help. It is therefore not clear what kind of contribution they could have made. That may be the reason, among others, why Indian authorities have not encouraged their visit. One may then ask what other form Pakistan’s cooperation in the present case may take.

India insists that elements based in Pakistan have engineered the Mumbai attack. It might help clear the air if Pakistan were to invite Indian investigators to join its own agents in conducting the investigation at the Pakistani end. The two groups, acting as a team, might question the suspects India has named in addition to the known activists of anti-Indian militant organisations, that is, such of them as can be located.

There will be objections in certain quarters to Indian agents coming into Pakistan and interrogating its citizens but, considering the gravity of the situation that has developed in Pakistan’s relations with India, these objections can probably be overcome.

The likelihood is that a joint investigation will not produce the results that India considers satisfactory. India may not even accept the proposal. But having invited Indian participation in the investigation, Pakistan will have gone quite some distance in countering Indian propaganda, and the suspicion in some other countries, that Pakistan has had something to do with terrorist attacks in India.

The writer is a visiting professor at the Lahore School of Economics.

anwars@lahoreschool.edu.pk

THE Indian channels were dead sure that the terrorist who had spoken to them from the Taj Hotel had done so in a Punjabi accent. In time they learned that presenting it as a specimen of Pakistani speech would be much more to the point than tagging it as simply Punjabi.

A positive Punjabi identification would have been so much more difficult, what with so many and such different Punjabi voices contributing to the din that rose after the horrific night in Mumbai — beginning with the style of articulation perfected by Foreign Minister Makhdoom Shah Mahmood Qureshi. The latter is from the southern part of Pakistani Punjab that has long been held in suspicion by the Indians. Mr Qureshi happened to be in New Delhi and was not shy to speak, offering the Indians an on-the-spot opportunity of linguistic analysis.

Back home the responsibility of defusing mounting tension was entrusted to a fellow Multani, Prime Minister Syed Yusuf Raza Gilani. He practises a speech so very different from Mr Qureshi’s and on the basis of their talk alone it is difficult to ascertain that the two gentlemen come from the same district, their homes separated by a few kilometres.

If these two accents were not at variance with each other, we had another member of the linguistically suspect group this time telling his neighbours to not allow terrorists to use their territory. Prime Minister Manmohan Singh may have had an altogether different perspective on things but his was a tone as Punjabi as you would ever find.

So which Punjabi accent, which part of Punjab and indeed which Punjab were the media referring to? The channels soon appeared to realise how general they had been in their verdict and that’s maybe why the emphasis shifted to Pakistani instead of Punjabi. And that is where the emphasis has remained unless, behind the scenes, the Indians have furnished Islamabad with solid and specific proof of Pakistanis’ involvement in the Nov 26 terror attack on Mumbai.

The incident is reflective of how difficult identifications within the subcontinent can be. In a land full of commonalities and that throws up three Faridkots while you are looking for one, you cannot condemn people on the basis of their tongue and barring a few Bollywood disasters that jar, the art of faking linguistic nuances is not completely lost on the people here. The alleged terrorist who was heard on the Indian channels used the word pyaray which is generically associated in Pakistan with Indians. Was it fake or real? It will take time to establish, and a little more investigation.

Mumbai itself has been generously contributing newer varieties of the Punjabi language to our lives, given its deep admiration of the Punjabi culture. This sentiment, which often borders on obsession, has permeated a large number of pictures and sounds that have come out of Mumbai studios in recent times: the sound belonging to Nusrat Fateh Ali Khan and of late to his nephew Rahat Fateh Ali Khan and Shafqat Ali Khan and to Sukhwinder Singh as well.

On screen, we have had Shahrukh Khan winning a Punjabi family over with his childish antics in Dil Walay Dulhanya Lay Jain Gay and Shahid Kapoor repeating the feat during his turn wearing a look of mock seriousness in Jab We Met. Never to be left behind, in between Aamir Khan guided a bunch of Punjabi revolutionaries to salvation in Rang De Basanti. All these characters speak in made-up accents that are easy to disown in Lahore, a city that continues to be remembered, mostly fondly, in the Indian narrative.

So the spotlight continues on things from Punjab and Lahore, sometimes bad, but mostly good. And there is not always a lack of effort to ensure specificity. A team put together with cricketers from various towns of (Pakistani) Punjab including Faisalabad, Lahore, Multan, Muridke, Sheikhupura, etc. could have been titled the Punjab Badshahs. It was called the Lahore Badshahs probably to remove all doubts of it having any links with the Indian Punjab as also to play on the popularity Lahore seems to enjoy in India. So far, so good. The case of mistaken identity, a minor one in comparison to the complications we have had since, came, as it had to, during the telecast of a Lahore Badshah game. It was in Ahmedabad if one remembers correctly that the television commentators got a chance to speak favourably about the power in fast bowler Muhammad Sami’s words: wow, how does he express himself in typical Punjabi accent! The audibly impressed commentator had ruled, his judgment probably rooted in Sami’s presence in the ranks of the Lahore Badshahs.

Muhammad Sami was born of non-Punjabi parents in Karachi and that is where he has lived all his life. No one in Pakistan will ever blame him for having a Punjabi accent.