NOW that the guns that had been blazing at the previous government have fallen silent and are unlikely to open fire again, unless the present government offers serious provocation, or a powerful vested interest raises a storm, it is possible to attend to the state’s serious problems.
The Lahore High Court Bar did well to discuss the impact of the contempt of court law on the right to freedom of expression. This is one of the issues regarding the frequent use of the law of contempt that needs to be sorted out.
Although the courts have progressively become tolerant of favourable comments on their verdicts and praise for the conduct of judges, and discussion in the media on undesirable briefs before they are addressed to the bench, that once used to be disallowed, there is considerable lack of clarity about media persons’ and citizens’ right to comment on court judgments and procedures.
While the independence and dignity of the judiciary cannot ever be compromised the contempt law can be effective and beneficial only if used sparingly. Quite absolute is the dictum that courts have to win respect by their even-handed dispensation of justice and the measure of wisdom ingrained in their rulings and their smallest possible resort to contempt proceedings.
In underdeveloped countries the courts are often required to protect the citizens against state excesses but the nature and extent of such interventions are still being debated.
For instance, there is need for clearer understanding on the question whether the courts’ power to strike down a government’s policy includes the privilege to lay down a new policy, beyond pointing out the obligation to respect the Constitution and the law. Likewise the courts have a right to censure the executive if it acts wrongly but it is doubtful if they can assume the latter’s functions to decide administrative matters.
One hopes the contempt of court law will be debated not only by lawyers but also by scholars and public-spirited citizens with due regard to the rights of the parties concerned, and the temptation to tailor arguments to suit one’s favourite faction will be resisted.
A debate of a more fundamental import, concerning the design of the state structure, has been revived by Babar Ayaz’s thought-provoking study, What’s Wrong with Pakistan?
Written with a commitment to the truth and a candour that should characterise our historical treatises more and more, this study traces the Pakistani people’s political wanderings since the Lahore resolution of 1940 to the latest general election and invites the people to ponder the causes of their tribulations instead of lumping everything that is thrown at them under the label of ideology or security.
The trouble began when religion was used as a tool to promote the political and economic interests of the Muslim elite and the means became more precious than the end. This distortion in the concept of the state led to the denial of the multi-ethnic and multinational character of Pakistan and the adoption of a highly centralised state model. The aberration carried the seed of disintegration that did come about in only the 24th year of the state’s life.
Babar Ayaz develops his argument for a secular state by exposing the use of religion to exploit all federating units except Punjab, the inevitable rise of military despotism and Gen Zia’s exertions to turn Pakistan into a theocratic state.
With national security and Islamic ideology being accepted as the two sides of the same coin, Pakistan’s defence alignments and external policy priorities became increasingly contrary to people’s interest. Religious extremism and notions of private jihad have created a situation where one has to labour to repel suggestions of a failed state and keep the hope of deliverance alive.
The author is frequently outspoken because he wants the people to stop blaming the mirror for their pitiable reflection. His initiative will fail to achieve results if those opposed to his thesis decline to accept the challenge, because an open discourse is the only way out of the crisis our people have nursed for six decades or more.
A discourse on the secular route to survival cannot be complete without a parallel discourse on the unavoidable hazards of a theocratic polity. The biggest disservice to the people of Pakistan done by the advocates of a religious state is to freeze Islamic thought to an even greater extent than Iqbal had found it and had held as the cause of Muslim decline.
How an intra-religion discourse can open up new vistas may be seen in the work of Abdullahi Al-Naimi, one of the world’s outstanding authorities on the politics of Muslim peoples. He began by rejecting attempts to exclude religion from a Muslim country’s politics but warned that by following classical Islam a modern Muslim state could do justice neither to women nor to its non-Muslim citizens and thus become a pariah in the world.
A way out was possible by interpreting human rights in the light of the Makkah revelations of the Quran instead of the Madinite ones but for that the ulema had to review the theory of naskh ie subsequent revelations cancel out the earlier ones. After studying several Muslim states, including Pakistan, al-Naimi says in his latest book, Islamic State and Sharia, that Islam does not enjoin mixing belief with the affairs of the state that are always secular.
If the Pakistani religious authorities allow their pupils just the right to follow the Quranic command to think, they may not fail to find a religious path to agree with Babar Ayaz and the secular elements of the country.