The 21st point: Overhaul the state

Note: This article was completed on December 31st, 2014, and was originally posted on this Blog in January 2015.

Presently there is happening quite a serious debate on the 20 points envisaged in the National Action Plan. Its thrust is on two points:

i) All these measures should have been in their place since long as a matter of routine, probably from the day first when Pakistan came to exist; and,

ii) Due to the past negligence of the governments, doubts and questions are being raised about the efficacy of these measures.

The argument the present writer aims to make is a bit different; he wants to propose a 21^st point to be added to the NAP, which focuses on overhauling the state. Let’s be precise in judging: It’s the state that played havoc with the society of Pakistan, and now it needs to be back to the basics!

First and foremost: The politicians of Pakistan should stop behaving like Haakim and Ashraaf; they are empowered by the vote of people and are bound to act in accordance with the provisions of the constitution; they are the same citizens albeit with certain responsibilities and duties with which strings of accountability are attached.

The citizens of Pakistan while they participated in the Lawyers’ Movement learnt about: Constitutionalism; Rule of Law; Fundamental Rights; Independence of Judiciary: these must materialize into reality. That amounts to minimizing the role of the politicians which they exert on the society and market through various instruments of the state and government; and that will strengthen and enhance the civil society and its role in the life of the citizens.

There are two domains wherein an urgent overhaul is required: Political and Economic. In the political domain, following practical measures are needed:

i) The role of the state be redefined as a protector of the citizens life, property and their freedoms and not as an institution of welfare, and not as a proprietor of Business; 

ii) Constitutionalism should be the only way to run the affairs of the state; 

iii) Top priority be given to the protection of all the citizens’ life, property and their fundamental rights; especially the right to religious freedom be ensured to every citizens whatever his/her faith is; 

iv) Institutions and agencies responsible to dispense justice and extend protection to the citizens, such as Police, Courts, be made autonomous and accountable to the parliament or the provincial assemblies as the case may be; 

v) Civilian authority be retrieved and restored both in letter and spirit; formulation of defense and foreign policies constitutionally rests with the elected government and parliament, these should go back to them; as in accord with the constitution the Army has nothing to do with any other matters save related to its professional duties, it must confine itself to the role assigned by the constitution; also not only the Army but all the intelligence agencies be made accountable to the parliament; 

vi) Any interference in the matters of the state and its institutions whether it comes from the political or military quarters be not heeded to in the least and violators be brought to the book; 

vii) Judiciary be completely made independent financially and in matters of its appointments especially; 

viii) All the institutions of the state, such as Election Commission, National Accountability Bureau, be made autonomous absolutely impervious to any external influence; 

ix) In the matters of Army’s and Bureaucracy’s appointments, posting, transfers, promotions, Prime Minister’s, or any minister’s prerogatives be done away with, and the principle of merit and seniority strictly be followed; 

x) All the legislation regarding the citizens’ right to information be it at the federal or provincial level is a farce; in fact all the information regarding the affairs of the state and government belongs to the citizens; why should they pay and be asking for it; so it be posted on the respective websites for their examination; 

xi) The role of all the elected representatives be confined to the matters of legislation and they should enjoy no other status or powers; no funds, be it for development or for any other purpose, be given to them; 

xii) Foreign visits of state and government officials be drastically curtailed; no visit be allowed without prior budget sanction; 

xiii) It be legislated that only professional politicians could contest and become elected representatives, and no one doing or having any business interests could join politics and government.

In the domain of Pakistan’s economy, following radical reforms need to be introduced: First and foremost: The state must come back to its original protective function and focus on its regulatory and facilitatory role and be doing no business at all. 

i) All the lands gifted/allotted by the British to anyone be taken back and distributed to landless peasants and homeless citizens under a uniform policy; 

ii) All the monetary privileges and tax exemptions be abolished;

iii) All the discretionary powers, discretionary or secret funds be stopped; 

iv) All the state enterprises be privatized be they incur profit or loss; 

v) As growth is a function of citizens’ entrepreneurial efforts, and state or government creates not a single penny of wealth, this be adopted as a guiding principle while formulating any economic policies; 

vi) As in its role of a taxman, the state by heavily taxing can hamper the economic growth, so it must commit itself to the principle of lower and flat rate taxes; 

vii) As a regulator, the state should commit itself to the principle of regulation for facilitation, not for control; 

viii) All the restrictions on domestic or international trade be lifted; it’s for the producers/traders to see and decide where to export to and where to import from; 

ix) In the spirit of a slim, smart and strong state, unnecessary ministries, departments, etc. be downsized or done away with altogether; 

x) As the state machinery, i.e. departments of the state which collect tax or render various services, such as permissions, licenses, has become an enemy of the people, a complete overhaul of it is long due; with an iron hand it be made citizen-friendly; 

xi) All the accounts of the state be posted on the respective websites and even a single penny be accounted for, i.e. political and economic parasitism must come to an end.

Military courts: a moral perspective

A person who is murdered, has he any rights? That question may seem strange. Let me add another dimension to it: What’s the spirit of law? Does it exist for the rights of the murderers to be protected? Or, it exists for the alive so that they enjoy their life safe and sound? Last year, in a seminar on the citizens’ fundamental rights when I made a comment that most of the NGOs are always ahead in safeguarding the rights of those who are accused of capital crimes but why they never turn up to defend the rights of those who are murdered, one activist really turned up to throw an angry question upon me: “What do you mean? The accused has no rights? And we defend murderers?” I said: “What I mean is that the one who was murdered he too had a right to his life, why was he deprived of that inalienable right? Who was supposed to protect that right of him?”

Here too, my contention is the same: What about the rights of those who are murdered, and that whether law has anything to do in the first place with the protection of their life? I presume who were murdered for a reason or for no reason at all the state was bound to protect all of them. My question those who have chosen the duty of defending the rights of the accused especially of capital crimes, why don’t they give a thought to the rights of those unfortunate ones who lose their lives? Partially in this sense, idea of the military courts makes sense.

Let’s try to delineate the issue as a solution for which the establishment of military courts is under discussion and which is one of the 20 points of the National Action Plan to tackle the menace of terrorism and extremism. In fact, the normal law is not able to take and complete its due course as is required: Delays, inefficiency on the part of the prosecution as well as the courts, fears and threats, complicity, etc. mar its performance. Both types of arguments for and against the military (speedy or special) courts are influencing the debate and public opinion in both directions. The military courts established by martial law regimes in the past are being used as a model to judge the proposed courts. That’s misplaced.

Leaving aside the both camps, I want to argue from the point of view of Law, and from the point of view of Morality. As for the first, so many others are also emphasizing that the measures which the 20 points envisage should have been taken quite earlier, since the day Pakistan came into being. That delay of about 68 years is more than criminal mainly on the part of the politicians who utilized the state for their Ashraafi interests and led it astray to what we witness happening today.

In principle, the first and foremost function of law is to protect all without any discrimination and make sure that no unlawful activity takes place, i.e. no such conflict brews which culminates in anyone’s murder. In Pakistan, however, the law has completely been negligent of this function of it; mostly because here the civil society and media took inspiration from the advanced world which has already achieved a peaceful lawful society and that’s why their point of focus is on ensuring the rights of the accused. Our society, on the contrary, is miserably a violent and unlawful society; that’s why in the first instance it requires its focus to stay on ensuring everyone’s right to life, property and liberty.

As for Morality, no debate in Pakistan, including the current one on military courts, has ever been mindful of it. It’s a non grata issue in the Paki intellectual, political, religious milieu. Let me remind that Law grows and flourishes in the soil of morality; in the absence of morality, no law can make any difference. Nonetheless, it’s Law which helps morality gain its lost dominion as it did in Europe. So in a lawless and devoid of morality Pakistan, we can start with establishing the rule of law, which with time will restore morality to its due status.

It needs not arguing that Law in an important sense is morals codified; in that it presents a moral view also. However when codified, Law takes its own course, be it moral or not. It is in this context that I want to introduce a moral problem, which the Peshawar massacre of children has brought to the fore in bold relief. No qualms about that: Let the Law take its course, which for innumerable reasons it has not taken; and it’s no time to inquire about its whys, while about 50, 000 innocent citizens have already become the victims of terrorism and extremism. The circumstances have put us face to face with a moral choice: Let the innocent citizens die at the hands of terrorists and extremists or take extraordinary measures to exterminate the murderers!

In the US, moral philosophers are employing empirical research and experiments to see how people respond to such moral dilemmas. One Problem of Trolleyology is being heatedly argued about; one variant of it is like this: Pull a signal lever and divert a trolley-car which otherwise is going to kill five persons tied to the track; but by diverting it to a side track you kill a person tied there. So what’s your choice? Most people want one should die, not five persons! In contradistinction to it, our choice is far too clear since on the one side are hundreds of thousands of innocent citizens and on the other “jet black” murderers! The only risk in setting up the military courts is the miscarriage of justice in some cases, the magnitude of which may only be measured after the legislation stands completed.

In a broader perspective, that would help shift the emphasis especially on the protection of everyone’s right to life; and though it requires a wider approach and a lot of other measures to succeed in the longer term, it may serve as the first step towards putting the state and society on a peaceful and lawful track.

Note: This article was completed on December 29, 2014, and was originally posted in January, 2015.