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.

Charter of Democracy’s half truth

As the Pakistan Tehreek-e-Insaf and Pakistan Awami Tehreek launched this August 14 their “Azadi March” and “Inqilab March” respectively, and then undertook the Sit-Ins (Dharnas) in Islamabad; day by day it was increasingly perceived as a deadly threat to political constitutional set-up prevailing in the country. With worsening law and order situation in the capital including the fears of occupation of state buildings by the marchers, the fear of military intervention loomed large on the political horizon. However, in the face of it something very surprising took place: All the political parties sitting in the parliament reposed and reiterated their complete confidence in the current political set-up, including the government, rejected the marchers’ calls for prime minister’s resignation, dissolution of national and provincial assemblies, and holding of mid-term elections. More to it, bar associations and civil society organizations throughout the country supported the cause of the continuation of the current political constitutional set-up. Finally the Supreme Court also judged that all the institutions and authorities of the state must work remaining within their constitutional domains.

That’s unprecedented for the long checkered polity of Pakistan. Somehow all the political elements, except the protesting ones, out of which the PAT has no representation in the parliament, have put their weight on the side of the constitution ruling out any military adventure. Symbolically, it’s the victory of the Charter of Democracy, which Nawaz Sharif (Pakistan Muslim League-N) and Benazir Bhutto (Pakistan Peoples Party) signed in May 2006. However, it is strictly a political victory, which may or may not translate into something concrete for the individual citizens of Pakistan.

A look at the Charter of Democracy may reveal the political contours of the tale: It lists the following maladies that afflict Pakistan: Political crisis; Threats to its survival; Erosion of the federation's unity;  Military's subordination of all state institutions;  Marginalization of civil society; Mockery of the Constitution and representative institutions; Growing poverty, unemployment and inequality; Brutalization of society; Breakdown of rule of law; and, Unprecedented hardships facing our people under a military dictatorship.

After listing the afflictions, the Charter of Democracy proposed an “alternative direction” for the country characterized by the following: Economically sustainable; Socially progressive; Politically democratic and pluralist; Federally cooperative; Ideologically tolerant; Internationally respectable; Regionally peaceful; and, Resting of the sovereign right with the people to govern through their elected representatives.

In no way, anything agreed in the Charter of Democracy by the two larger political parties related to any aspect of the fundamental rights of the individual citizens of Pakistan. Revisit the Charter of Democracy and note its essential political character, which may be interpreted if not in an anti-citizen manner, necessarily not in a pro-citizen way either. Hence, what the Charter of Democracy agreed at achieving in 2006, it has achieved at this moment a substantial political part of it in 2014. Notwithstanding the fears that the rallying of the major political parties behind the demands of the constitutional rule and continuity, and against the PAT / PTI’s calls of winding up of the political system may evaporate tomorrow or day after tomorrow.

In view of the above analysis, every sane person would love to support the present constitutional political set-up and its continuation; however, at the same time he may wish it translate into the realistic availability of the fundamental rights for each and every individual. As the Supreme Court has observed (August 22): If the protesters are exercising their rights; other citizens’ too have their rights, which must not be encroached by them.

Now, it may be summed up that Charter of Democracy is half the Truth for the individual citizens; the other half of the Truth lies in another charter, a charter of individual citizen’s fundamental rights. It was this spirit in which I responded to the Charter of Democracy, and wrote a Charter of Liberty in September 2007, which sought to present a solution to the myriad problems and unimaginable sufferings faced by the ordinary people of Pakistan. The Charter of Liberty presented not only a critique of the Charter of Democracy but also offered an independent Charter of Liberty for individual citizens so that their personal freedom and fundamental rights may be secured.

In contrast to The Charter of Democracy’s Political Spirit which has manifested itself now in a constitutional consensus across the political horizon, The Charter of Liberty tries to imbibe the Individual Spirit which permeates the fundamental rights and their daily formulations in various situations. The individual citizens must rise to the occasion so that they are able to secure their personal freedom and fundamental rights against the onslaught of the unruly political elements.

Here are some of the demands, the Charter of Individual Citizens’ Fundamental Rights includes: We the individual citizens of Pakistan hold: That of all freedoms, individual freedom is of foremost importance; and that without it, all freedoms, be they political, economic, religious, etc., are useless; That without individual freedom, Pakistan can never be transformed into a virtuous society since it is individual freedom that allows people to make choices on their own and thus to be responsible for their choices and their consequences also; That the above amounts to saying that every individual citizen is endowed with certain inalienable rights such as right to life and liberty; That every individual citizen is free to pursue a life of his choice and liking until and unless he trespasses on such freedom of other individual citizen/s; That in the case of any trespassing, the trespasser, be it a citizen or a group or a political party or an institution or government itself, is to be dealt in accordance with the law.

That the inalienable rights include among other things the freedom of speech and writing, freedom of assembly and association, freedom of professing and practicing any philosophy, ideology, religion etc. and freedom of propagating it by peaceful means only; That the inalienable rights include freedom of movement, freedom of trade, freedom of business, freedom of profession, etc. That amounts to saying that the only justified function of government is to protect its citizens life, their income and property, and their rights and freedoms from those who seek to usurp them be they are local or foreign individuals, groups of individuals, political parties, or institutions or government itself.

That, if there is no rule of law, and no independent judiciary, even a parliamentary government can never come up to the expectations of its citizens, i.e. cannot protect their life, liberty and property; and, That without an independent judiciary, justice can never be accessible to each individual citizen, and a just society can never be created. Thus, through this Charter the citizens’ Fundamental Rights not only in the political realm but in daily life situations, as is happening in Islamabad and elsewhere, may also be secured.

Note: This article was completed on August 25 and was originally posted in September 2014.

Media wars

It is essential to seek out enemy agents who have come to conduct espionage against you and to bribe them to serve you. Give them instructions and care for them. Thus doubled agents are recruited and used. [Sun Tzu]

Before March 9, 2007, it was all dark on the horizon of Pakistan. A military dictator was ruling while dressed in khaki uniform; he was intent upon continuing his rule for the next 5 years; and the criminal politicians were all ready to help him rule for more than a hundred years. Such was the hopelessness that no rational being could dream of a silver lining. One could only fear what happened to Iraq after it grabbed Kuwait, may not happen to Pakistan.

All of a sudden, and it was just like a bolt from the blue, a hope started taking shape. First time in Pakistan, the point was made that the government must be run by the book. So, the lawyers’ movement taught the people of Pakistan three lessons in democracy: constitutionalism, rule of law, and fundamental rights. During this movement, the dynamics of Pakistani society changed the repercussions of which will be felt far deeper into the future.

One of the new forces that emerged in the midst of that movement is electronic media. Rather it may rightly be asserted that not only the plethora of TV channels got allied and aligned with the people at large, but they realized their power also. That made them self-conscious elephantine! Ensuing of a fierce competition among them was quite natural. In a Robbinsian economic sense, viewership as well as advertisement revenue was scarce, and they fought for a larger share forgetting all the norms and rules of the game. The one which won not only a larger portion of the viewership but revenue also became the target of envy and conspiracies by other lesser obtainers.

Previously, it was all melodrama. There was only one TV channel, the state-run PTV. For its survival, it was dependent on the doles from the state, and it blew the stat’s trumpet. In order to survive, it’s still extorting Rs.35 every month from every TV set owner by using the might of the state. Emergence of dozens of new TV channels, which of course were to be run like businesses, completely altered the scene on the stage. The state-run PTV slipped behind the curtain, and lost both its viewership and revenue to the new breed of TV channels, which in no way were dependent on the state. Instead they depend on their market of viewers who indirectly yield revenue to them. Thus, in the world of electronic media in Pakistan loyalty to the market is the rule, and loyalty to the state and its institutions is an exception (loyalty to the constitution is quite something else).

As the art of the statecraft requires, the private TV channels were brought under a regulator, Pakistan Electronic Media Regulatory Authority (PEMRA). However, in essence the ruling political parties came to control these channels for political gains and privileges. That the regulator in this case, as in so many other cases, was not given autonomy and the government kept it under its authority, it remained spineless, resulting in a chaotic broadcasting environment. A number of attempts on the part of these private TV channels to self-regulate failed, which provided ample space to the state and its various institutions and agencies to dictate their agenda items to this or that TV channel.

But that was not like PTV days, the golden days of melodrama and happy eulogies. The competition among these channels drove them to uncharted territories and unfathomed depths. They have already realized their elephantine powerfulness during the lawyers’ movement when they helped defeat a military dictator. Now they have their own fish to fry. They started questioning every practice of the state, its various institutions, including the security entities; the pivot and the point of reference was and is the constitution of Pakistan. The stories and acts which previously went untold and unheard, now found tongues and ears. The tales of Saleem Shahzad, Umar Cheema, and Hamid Mir had a rebellious tone, and challenged the perpetrators. It may also be explained thus that where politicians were required to act boldly was taken up by a TV channel itself. This shows the utter desperation of those who have no hope of justice.

Under the circumstances, the most relevant question is about the role of the state and the politicians. Related with it are other crucial questions, such as: why the constitution is not followed in letter and spirit by the various institutions and entities, be they security or otherwise. Or why the politicians fail to enforce a constitutional rule in Pakistan. Why there is blatant power play which in fact repudiates the spirit and provisions of the constitution. Why the politicians fail in securing the fundamental rights to the citizens, be they journalists. Why the politicians fail to set up independent and autonomous regulators and let them do their job.

In other words, it means had there been rule of law in Pakistan, no institution and entity would have engaged itself in un-constitutional activities. Had there been independent and autonomous courts, no suppressing of the fundamental rights would have been possible. Had there been due accountability mechanisms existent at every level of the state institutions including the Army and the intelligence agencies, there would have been no cases such as of Saleem Shahzad, Umar Cheema and Hamid Mir on the one hand, and on the other, no media campaigns against any security entity may have been unleashed. But all that remains completely absent in Pakistan; which emboldens every individual and every institution to do what they like.

No doubt, the anarchy prevailing in the realm of electronic media in Pakistan at the moment may not have been the case, had there been an independent and autonomous PEMRA, which would have acted in the nick of time in case of any irregularity committed by any media house. However, the PEMRA is still conspicuously absent from the scene whereas weeks have passed that a media war has been raging in Pakistan. That speaks volume about the failure of the ruling PML-N’s leadership!

Note: This article was completed on May 27, and was originally posted in July 2014.