A worry and an explanation

I HAVE written about this subject before. In an article published in this space on November 29, 2005, under the title of “An institutional graveyard,” I suggested that a succession of regimes in Pakistan had set the country back by decades by destroying its institutional base.

At the time of independence in 1947, the country inherited a fairly robust institutional foundation on which it could have built durable economic and political structures.The British left the subcontinent with a working judicial and legal system. They had prepared the basic ingredients of a representative system of government with political parties and legislative councils. The province of British India operated with a fair degree of administrative autonomy.

The British had created a system of local government that, resting upon a well developed system of civil administrations, was able to provide many basic services to the people. They had a system of tax collection that gathered revenues for the government from all sectors of the economy.

Instead of building on these foundations, government after government in Pakistan demolished what had been laid. This they did for their short-term gain rather than for the long-term benefit of the country. Now, as the country prepares to celebrate its 60th birthday, it has little left of the institutions that were in place six decades ago. It is in this context that we should review the current political upheaval in the country.

Those looking for an explanation for the extraordinary political developments in Pakistan in recent days should perhaps look into ‘New Economics’. On March 9, General Pervez Musharraf, Pakistan’s fourth military president, sent Chief Justice Iftikhar Mohammed Chaudhry into a legal shadowland. This is where he remains pending the resolution of the constitutional and political crisis that followed that action.

After having failed to persuade the judge to resign and leave the bench, President Musharraf made him “non-functional”, a new designation without precedence in Pakistan’s political and legal history. Later, the government seemed to have changed its mind and sent the chief justice on forced leave.

Those who have even a passing knowledge of Pakistan’s history know that strong men in power have have often clashed with the judiciary. In these confrontations, the judiciary found arcane legal principles to justify the heavy-handedness of those who walked the corridors of power. This began in 1954 when Chief Justice Muhammad Munir used the doctrine of necessity — a concept put forward by Hans Kelsen, an American legal historian — to suggest why judges at times need to go beyond the law to endorse extra-legal moves. The tradition continued as the military — and sometimes even civilian politicians acting out of hubris — used powers not entrusted to them by the law of the land.

But my purpose today is not to recall episodes from Pakistan’s sordid political history. It is to invoke what I would call New Economics to understand what is going on in Pakistan and how this matter needs to be resolved. The country will pay a heavy economic price if the solution to the crisis further damages the little that remains of the institutional foundation.

In the evolving discipline of New Economics, economists have begun to look beyond the marketplace to find reasons for human and state behaviour. They have discovered behavioural economics which uses explanations Adam Smith, David Ricardo and John Mills — the founding fathers of economics — would find hard to understand. “It is not from this benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest,” wrote Smith in The Wealth of Nations.

That said, it was Adam Smith who endorsed some constraint on individual behaviour to tame the animal spirits that animated most human actions. While advocating that human beings should be left to follow their instincts for looking after their own welfare, he recognised the need for prescriptions of limits beyond which they must not go. Who was to lay down these limits?

“Our senses, never did, never can, carry us beyond our own person,” Smith wrote in The Theory of Moral Sentiments, the book that preceded his better known work, The Wealth of Nations. These limits were not to come from institutions that constrained behaviour but from within one’s own self. “When our passive feelings are almost always so sordid and so selfish, how come is it that our active principles should often be so generous and so noble?” Smith asked. The answer is “the inhabitants of the breast… the great judge and arbiter of our conduct,” that guide human action.

In other words, human conscience was to regulate the expression of human selfishness. This applied not only to those who lent their labour to the working of the economy but also to those who ruled the citizenry.

Without perhaps meaning to, authoritarian rulers in the modern era have justified their actions in terms that Adam Smith and his peers would have understood. Their claim to power rests on two founding principles of classical economics. One, that men (and women, of course) will be guided by a voice that comes from inner conscience — what Smith called the beast that inhabits the breast. Two, even when individual actions may seem selfish in intent, when pooled they produce social good. The wise ruler, therefore, could be trusted to act not only wisely but in the larger interest of the citizenry.

While this is where classical economists left the inherent conflict between human behaviour and social responsibility, political scientists went further. They began to articulate the importance of two needs that must constrain the actions of those who ruled. One was that people — those who are governed — must be allowed a voice.

This was one of the many characteristics of the American society that impressed the French political philosopher Alexis de Tocqueville in his 19th century masterpiece the most. He saw “democracy in America,” and its emphasis on “clamour” that arose out of “people arguing about politics” as a civic virtue.

The most impressive and obviously unexpected consequence for the regime’s action against the chief justice was the public clamour it produced and “people arguing about politics” on TV talk shows and the op-ed pages of the newspaper. I will return to this point a little later. For the moment I will stay with the relevance New Economics and other social sciences have for understanding Pakistan’s current political situation and for suggesting future action.

The second insight provided by political science was to emphasise that while “public clamour” was the basis for the working of democracy, it alone did not produce democratic institutions. That had to happen by people not only giving voice to their frustrations and their aspirations but also by agreeing to have their actions constrained by a system of laws.

As Pakistan’s difficult political history demonstrates vividly, elections don’t produce democracy. It is the rule of law and respect for the legal system that must be at its foundation.

We have seen civilian regimes produced by elections that showed scant respect for the legal system; we have seen elected people’s representatives more interested in pursuing their own interests than those of their constituents; we have witnessed elected prime ministers assaulting the judiciary to get their way; and we have seen many judges themselves accepting the constraints placed on them by those who happened to be the rulers of the day.

All this weakened the country’s institutional base of which a functioning legal system is the most important part.

About a decade ago, economists began to catch up with political scientists and sociologists in recognising the importance of institutions for promoting economic development. They discovered many reasons for creating a strong institutional base for a well functioning economy. Among these reasons, two were particularly important.

One was that institutions and the system of rules on which they are based reduce transition costs. A reduction in costs lowers, by definition, the cost-benefit ratio and hence the efficiency of the economy. Two, a strong institutional base improves predictability about the environment in which economic actors operate. The converse of predictability is uncertainty and investors dislike nothing more than being surprised. Of the many institutions to which New Economics attaches a great deal of importance, the most vital is the legal and judicial system.

For a variety of reasons, a succession of administrations in Pakistan has played around with the structure of the legal system. The result is confusion about the nature of the system that is in operation and uncertainty faced by those who must depend upon it. Empirical evidence from the work done by development economists suggests that there is a strong relationship between the strength of the legal systems and robustness of economic performance.

There is also a positive correlation between systems based on common law and economic performance. It has been observed that highly codified systems such as those based on Napoleonic law inhibit the functioning of the markets and constrain entrepreneurial behaviour. The reason why that is the case is obvious. Entrepreneurs like flexibility rather than rigidity even when they like to work within predictable legal systems.

Common law such as the legal systems in the Anglo Saxon world as well as in South Asia and the countries once colonised by Britain makes it possible for a legal system to keep abreast of changes that are taking place in the economic environment. The legal system, therefore, can grow as the economy matures. This flexibility is not available to the legal structure based on codification as in Napoleonic law.

As already indicated, Pakistan’s inheritance was a system based on common law. That is the way it should have been developed. Instead, what the country is now operating is a hybrid system that follows both common law as well as the Islamic law. The latter, like the Napoleonic system, is inflexible since it is highly codified.

In other words, Pakistan has moved away from a legal system that would have enabled the smooth functioning of the economy to the one which is rigid and yet full of uncertainties.

Not only is the current structure a confusing hybrid — a mixture of systems that cannot come together — the lack of respect shown to the structure by the rulers of the day has further compromised it. This is the situation in which Pakistan finds itself today as a result of the move by the government against the chief justice of the Supreme Court. If there is a silver lining that is visible at this time, it is that upon reflection and under pressure the regime seems to be moving towards the acceptance of the need to proceed according to established law and practices.If the current crisis is resolved by letting the system produce results by the pursuit of the laws and rules that are in place, we may still see a positive outcome to a crisis that could otherwise be highly debilitating for both economic and political development. I hope that the regime will allow rationality to prevail as it moves forward to resolve this crisis.

It must pursue the rule of law and thus save another important component of the country’s much depleted institutions from being seriously compromised. That course will be good for the country and will also serve the regime well.

Judicial crisis and media’s role

THE attack on Geo TV is a significant event in the history of the media in Pakistan. Not only was it shown in full detail repeatedly by the channel itself, it was also covered by every other respectable private channel in the country.The print media also came out with editorials, columns and letters to the editor in support of the freedom of the media.

In Dickens’s memorable phrase “it was the best of times; it was the worst of times”. “Best” because the media of this country made it clear that it would not be browbeaten; “worst” because the state, or at least some of its functionaries, could descend to such levels of hooliganism against such a big TV channel in full public view.

Perhaps it was the media protest that led the state to make amends but the larger question is whether the media is coming of age, or whether only a section of the media will enjoy relative protection in exchange for not rocking the boat too much. This remains to be seen, but the past can show what trends have prevailed.

That the press has always been gagged by functionaries of the state is nothing new. A brave man, the late Zamir Niazi recorded this phenomenon in three major publications: Press in Chains, Press Under Siege and the Web of Censorship. Some of his essays on the same theme were published posthumously under the title of Fettered Freedom. These books narrate the sorry saga of harassment of journalists in Pakistan, the locking up of independent media personalities, the closing down of dissenting publications and the denial of print paper and advertisements to independent publications.Considering that the press functioned under very draconian laws during Ayub Khan’s dictatorship, the much touted freedom of the press at present is to be celebrated. However, it is not wholly true that this freedom has come since General Musharraf’s rule. It has been on the rise since Muhammad Khan Junejo became the prime minister in 1985 while Ziaul Haq was still ruling behind the scenes. It was necessary for the new face of the Zia regime to give some space to journalism. As it happened, there were many courageous and competent journalists who took advantage of the new space to create a new kind of journalism that was brave and critical of the authorities.

Such brave people had always been there but had been denied space. Still, if one looks at the editorials of I.H. Burney, Mazhar Ali Khan and Razia Bhatti, one cannot help but be impressed by their candour and courage. I have mentioned only those giant trailblazers who are no more but there are many who are alive and still going strong.

The only reason for not mentioning them is that the list is long and leaving out some of these living heroes, which is inevitable, in a column, is invidious. The freedom was taken; it was not given free of cost.

There were also some other factors which made the press strong. One was the globalisation of the means of communication and the near impossibility of maintaining the kind of secrecy and state control which the Soviet Union could do in the fifties.

Secondly, the business potential of the media was so huge as to have made owners pour in millions of rupees into new ventures. As media outlets competed with each other and hired intelligent young people they also broke free of state control.

Both Benazir Bhutto and Nawaz Sharif tried to muzzle the media — Nawaz Sharif making the greater blunder in the Najam Sethi case — but the media rose to the occasion and the government of the day had to retreat. Meanwhile, as many media reports made clear, individual journalists were intimidated, beaten up in public and privately and the old tactics of denying advertisements and paper were never stopped.

In short, when General Musharraf arrived on the scene in October 1999 the media had been enjoying relative freedom for 10 years at least if not more. It had reached a certain level of independence and it had created a culture of defiance where the government was concerned, while also subjecting itself to self-censorship in matters of religion and the military.

General Musharraf continued this state of affairs. This was very wise of him because if he had chosen to coerce the press he would have alienated even that part of it which either supported him genuinely or was happy to be co-opted by him. As more TV channels came up, the internal dynamics of the media made it stronger. However, all sections of the media have not enjoyed the same degree of freedom.

Let us take two of the most recent reports concerning this lack of freedom. The first is called Watching the Watchdog. It has been researched and edited by Matiullah Jan and Zafarullah Khan. It points out that the way news is presented is such as to privilege the official structure of power. Certain protocol personalities (president, prime minister etc) are given much coverage and the time taken for this by itself favours the official version of the news.

These, however, are subtle methods of introducing bias which is well established even in real democracies. What is less subtle is the bribing of journalists. Zamir Niazi has brought this up again and again. If the state indulges in bribing journalists it is killing the freedom of the press just as it is doing that when it intimidates them. Both cases create sycophants and opportunists or cowards who cannot protect democratic freedoms or those who are oppressed by the executive.

The more disturbing report, however, is called the South Asia Media Monitor (2006) covering excesses against journalists in South Asia. Among many reports there is one which says that in May 2005 Pemra proposed a bill in parliament to curtail the freedom of the electronic media. The report has also touched upon brutality of the kind which creates great doubts about the freedom of the press. It names journalists who have been arrested, held incommunicado, abducted, intimidated, roughed up, tortured, implicated in false cases, even murdered.

For instance, Hayatullah, a journalist, was abducted in December 2005 and found dead in June 2006. Muneer Ahmad Sangi, a photographer of the Sindhi daily Kawish, was shot dead in May 2006. Maqbool Hussain Siyal, a correspondent of a news agency, was gunned down in D.I.Khan. Malik Muhammad Ismail, editor of PPI, was killed in Islamabad. Some have been abducted and traumatised. Still others have been subjected to harsh and cruel treatment not authorised by any court of law. Some are reported to have been implicated in false cases. In short, the profession of journalism remains as dangerous in General Musharrraf’s time as it had been previously.

While the better-known English and Urdu publications and major TV channels enjoy relative freedom, working journalists, especially from the Sindhi, Pashto or Balochi press, fight for their lives and freedom in obscure corners of the country. They too want to publish what they see as the truth but they are more vulnerable to rough treatment because a part of the media is not free and they belong to the poor and marginalised sections of it.

The media’s role as the protector of the rule of law, supporter of the independence of the judiciary, major strength of the right to dissent and as the voice of civil society has been strengthened in the present judicial crisis.

By giving the protesting lawyers their right to be heard the media has built up much respect for itself. It is now up to the media not to give in to either the stick or the carrot. If any section of the media now stops reporting the whole truth without fear or favour it will always be mistrusted by the public. But, despite all this, the media has not come of age yet though it is on its way there. It still does not protect its own members nor is it run by syndicates of journalists.

The media will come of age when marginalised journalists and small publications are protected, and also when unions of journalists rather than owners, control the press. If the media gains real freedom, a free democratic culture is a strong possibility. The present crisis has strengthened the media which is the only silver lining in a sky of black, ominous clouds.

Legalising domestic slavery

WE may not have got a full apology from the British government to mark the 200th anniversary of the abolition of the slave trade but we've had pretty much everything else — "expressions of regret", apologies from Ken Livingstone, a service of remembrance in Westminster Abbey, and, most importantly, action on one of the most painful modern echoes of slavery — human trafficking.

Last Friday, the government announced it would sign the Council of Europe's convention against trafficking and the Home Office produced an impressive action plan on how to tackle the problem in the UK. The Home Office is, unusually, basking in the warm afterglow of appreciation from campaigners.

But the absurdity is that while one part of the Home Office has patiently collaborated across Whitehall on preventative strategies to stop human trafficking, and how to protect the intensely vulnerable individuals caught up in the trade, its another part has put forward a package of measures on migration which include a proposal to do the exact reverse. It's the kind of one step forward, one step backward form of policy making which leaves campaigners in despair.

The place to understand the issue properly is at the support organisation for domestic migrant workers, Kalayaan. Its offices are in a little alley tucked behind the beautiful stucco houses of Holland Park that gleam with wealth. As London's plutocracy booms, fuelled by the influx of an international elite, the stories of the women I met there represent the seamy underside of London's new position as global metropolis.

Take Maggie. A young West African woman, she came to the UK three years ago with her employers. She looked after their children every day until late in the evening but was never paid — her employers claimed she had to pay back her air fare. In addition, her employers made her go out to work as a cleaner every day — and took her wages. Maggie opens her diary where she has kept an account of the thousands of pounds she has had to give them. What trapped her in this forced labour was that her employers refused to hand over her passport unless she paid £4,000. A few months ago she ran away.

Or take Rina. An Indian woman with a broad smile and a tragic story of abuse in two families. Long hours, little food to eat and even, she admits, rape in her last job. But with her extended family in India dependent on her remittances, she can't return home. She now cares for an elderly woman with dementia seven nights a week. She has nowhere to live and spends the days on the street or in the local church.

These are the kinds of women that the government's proposal will affect. It's a few thousand perhaps — but the proposal is likely to lead to gut-wrenching suffering because it affects one of the most vulnerable forms of employment — domestic migrant work. Hidden in the privacy of the home, cut off from any kind of wider social contact, these women have working lives that are impossible to regulate. They often work punishingly long hours for low pay and little food: 60- or 70-hour weeks are common. With little knowledge of the UK, they are dependent on their employers to ensure that their visa and tax status is legal and it's a dependence some employers ruthlessly use to exploit them.

All of this the government seemed to have recognised back in 1998 when, after years of campaigning and with a lot of backbench support, the new Labour government pushed through a small but crucially important measure for these domestic migrant workers: they were given that most basic of employment rights — the right to change their employer. They no longer had the bleak choice of remaining with abusive and exploitative employers, or facing illegality and deportation. Providing they were still in full-time domestic work, they could renew their 12-month visas and stay in the UK. As Maggie's and Rina's cases illustrate, this protection still doesn't prevent abusive employment, but at least it provides a legal option to leave it. Wind the tape on nine years and even this minimum protection is to be withdrawn this autumn. The thinking is that such unskilled labour is no longer required from outside the EU and that the new accession countries can provide cheap domestic labour. But the government is not going to stop all non-EU domestic migrant work - that might compromise the attractiveness of the UK to those rich, often highly skilled employers who bring them in (the same consideration weighed on Tory policy in the 90s).

So the nonsensical compromise proposal in the government's Making Migration Work for Britain policy is that domestic migrant workers can come to the UK with their employers but they can't change jobs — and they can only stay for six months. The thinking is that that's enough time to train up an eastern European before sending the Indonesian or Sri Lankan nanny home.

The policy may make sense in the corridors of the Home Office, but it ignores the fact that there is a growing demand for carers in the UK, for both children and older people, and young eastern Europeans don't fill all the vacancies, particularly for the difficult work of caring for those with dementia.

Meanwhile the supply of migrant workers in the developing world desperate for such work is enormous. With both a strong demand and an equally buoyant supply, the fear is that the policy will simply force employment underground into all the problems of exploitation that dogged it through the 80s and 90s. Such is the difficulty of recruiting flexible decent childcare or elder care, employers will be prepared to dodge the immigration rules and migrant domestic workers will find themselves trapped in illegal employment.

The desperate stories of Maggie and Rina are evident in millions of households across the world; one of the most valuable exports of many developing countries is the caring labour of women. Remittances from nationals working abroad are worth more to some countries than aid. But this trade of care is almost always accompanied by virtually zero employment protection — old stereotypes about this being women's work and not real labour still linger.

In 1998, Britain was regarded as a pioneer for the modest measure it introduced. Canada is one of several countries which has attempted to provide some protection since. Nine years on, Barbara Roche, who implemented the measure as a Home Office minister after campaigning for such women as an MP in opposition, wonders how the history could be forgotten and the progress reversed.

At a point when we are trying to reckon with the history of 200 years ago, it would make a nonsense of our professed good intentions if we can't stretch our memory back less than a decade. Perhaps it's so easy to forget the plight of these women because the Maggies and Rinas are invisible — indistinguishable on the street or supermarket, and most of the time, discreetly working behind front doors. Just remember that the polish on London's mansions' brass knobs and the scrupulously scrubbed front steps were done by someone.—Dawn/Guardian Service