Dr. Haider Shah

Opinion is the medium between knowledge and ignorance (Plato).

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Conventions, democracy, and disfigurement, Daily Times, 30/6/12

OVER A COFFEE : Conventions, democracy, and disfigurement — Dr Haider Shah

A leader of a political party can therefore never be a symbol of unity of the republic, and the constitution therefore requires the president to be above all kinds of political affiliations

The assumption of the premiership by Raja Pervez Ashraf and the politicisation of the office of president have emerged as the most important developments on the political scene of Pakistan. The debate about these issues has largely been hinged on technical legalities, where opposing parties dig deep into various articles of the constitution to find supporting arguments. We seem to have ignored the importance of conventions in completing the superstructure of a constitutional political system.

The Law of the Constitution written by Professor A V Dicey was first published in 1885. Based upon his lectures, the distinguished scholar identified three leading characteristics of the British constitution as the ‘Sovereignty of Parliament’, the ‘Rule of Law’, and the ‘Conventions of the Constitution’. The first two features of the British Constitution are used heavily in our daily political discourse. Sovereignty of parliament is the favourite rhetoric of the Pakistan People’s Party supporters and the rule of law appears to be the main battle cry of those that sympathise with the judgments of the higher judiciary. Surprisingly, ‘conventions’ appear less frequently in our discourse, despite being one of the pillars upon which Dicey constructed the discipline of constitutional law.

Conventions or ‘constitutional morality’ arises because they meet the wants of the time. Dicey illustrates that in 1868 when a Conservative ministry in office suffered a general election defeat. Mr Disraeli at once resigned without waiting for even the meeting of parliament. The same course was pursued by Mr Gladstone in 1874, and again, in his turn, by Disraeli in 1880, and by Gladstone in 1886. This convention arose to reverse the precedent set by Peel in 1834 when the Conservative ministry, though admittedly defeated in the general election, did not resign until they suffered an actual defeat in the newly elected House of Commons. The new convention thus reflected the acknowledgment that the electorate constituted politically was the true sovereign power.

Britain does not have a written constitution as the British constitution lives in the hearts and minds of the people. When a widely accepted convention is broken, people are shocked, resulting in loss of support for the offending party. It is this unfavourable backlash that ensures that unwritten conventions are shown respect by successive governments. In certain cases, conventions become so important that they are turned into laws, known as ‘enacted conventions’.

The Pakistani constitution has two fundamental characteristics. One, it is based upon a parliamentary form of government and second, it empowers the exercise of Allah’s sovereignty by the representatives of the people as a matter of trust. Equality before the law, in turn, is the common principle of both characteristics. Needless to say, a parliamentary system of government functions on some well-accepted conventions. Various political parties give their programmes through their manifestos to the electorate. A clearly known party leader, who aspires to become the prime minister of the country if his /her party bags the majority of seats, leads a party. Since the prime minister represents the winning political party, there is a need for an office that represents the whole of the country. In constitutional monarchies, kings or queens perform this job, while in republics like India and Pakistan, the office of president has been created to do the same ceremonial job.

The framers of the Pakistani constitution also had a strong parliamentary form of government in mind. Convention requires that the party leader should become the prime minister so that all political power is transferred to his office. In India, from Nehru to Rajiv Gandhi, we see many charismatic party leaders adding prestige to the office. Only Sonia Gandhi did not opt to become prime minster, as there was a campaign against her foreign ethnicity. In Pakistan, on the other hand, successive military leaders, from Ayub Khan to Pervez Musharraf, preferred to assume the title of president. Generals Zia and Musharraf ignored the basic structure of the 1973 constitution and shifted the centre of gravity to the office of the president. They made sure that a very lacklustre politician be handpicked as the prime minster so that the office does not gain its legitimate glory.

Mr Asif Ali Zardari on the eve of the formation of the government after the 2008 elections had two choices. First, he could have followed the fundamental convention of parliamentary democracy by heading the new government as its prime minister. Second, he could have chosen the MQM model and hence shifted to London or Dubai wherefrom he might have controlled the party remotely. He chose neither of the two and opted for the president’s office. In the process, the office of premiership was relegated to secondary status.

As per Article 41(1): “There shall be a President of Pakistan who shall be the Head of State and shall represent the unity of the Republic.” Political parties reach the corridors of power after acrimonious electoral battles and as a result, no party can claim to represent the people as a whole. A leader of a political party can therefore never be a symbol of unity of the republic, and the constitution therefore requires the president to be above all kinds of political affiliations. He or she may have political ideas but his office demands complete neutrality as he only appears as a symbol of unity.

The constitution prescribes a mere figurehead role for the president. The divisive political role has been earmarked for the prime minister. Unfortunately, complete disregard has been shown so far to this basic requirement of the sacrosanct office. The practice of bringing out a prime minister like a rabbit from the hat has also further damaged the parliamentary form of democracy. Hope all concerned Pakistanis are alive to the need for some damage reversal.

The writer teaches public policy in the UK and is the founding member of the Rationalist Society of Pakistan. He can be reached at hashah9@yahoo.com

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Ridiculing PMship


OVER A COFFEE : Judiciary vs the prime minister — Dr Haider Shah

Do we automatically conclude that the legislature is powerless in terms of separation of powers? No, it can use its constitutional amendment power to assert its authority when it wants to do so

Once, Zulfiqar Ali Bhutto was the prime minister of the country, and now until the last moment, we are kept unaware who will be the latest handpicked candidate for the highest post. Perhaps, in all fairness, it was not just Humpty Dumpty that had a great fall.

Such is the scale of dearth of talent in the ruling party that after outsourcing important ministries to non-political paratroopers, it is using General Pervez Musharraf’s spokesperson as its chief apologist in the popular media. No conscience is pricked to see the ‘sovereignty of parliament’ phrase used as a weapon of offence by someone who until a year ago defended all the acts of an army chief, including the imposition of emergency.

Sovereignty of parliament is a legal fiction attributed to the unique British political system. Britain does not have a written constitution as the political system has evolved with the help of some acts of parliament and by the force of convention. Since there is no written constitution, there is no limit on the law making powers of parliament. In that sense, parliament is supreme because it can pass any law it may deem fit. However, many experts of jurisprudence now contest even that situation. The EU directives and European Court of Human Rights have put a restraint upon the supremacy of the British parliament, as all laws need to be in conformity with the European Convention on Human Rights. In countries like the US, India, and Pakistan, which have a written constitution, it is the constitution that puts a restraint upon the legislative functions of parliament. For instance, parliament is not allowed to legislate on matters not appearing in the federal list; it cannot pass a law that is repugnant to fundamental rights guaranteed under the constitution and it cannot pass a law that changes the basic structure of the constitution. Just like the founding fathers of the US constitution, all framers of constitutions are cognisant of the fact that in a federation, parliament and provincial legislatures can have disputes, therefore there should be an independent body that enjoys independent power to decide such disputes. The restraining and overseeing role of the Supreme Court is best captured by the famous quote of the 11th American Chief Justice Charles Evans Hughes that “we are under a Constitution, but the Constitution is what the judges say it is.”

Do we automatically conclude that the legislature is powerless in terms of separation of powers? No, it can use its constitutional amendment power to assert its authority when it wants to do so. The preamble of our constitution that has recently been overhauled by a committee enjoying the support of all parties begins with the following line. “Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust…” The constitution therefore is founded upon the public trust principle where wielders of power exercise the power not under discretion but under the trust reposed by the people of Pakistan. The same preamble mentions ensuring the independence of the judiciary as one of the aims of the fathers of the constitution.

Our constitution has determined who can be a parliamentarian under Article 62 and who cannot remain a parliamentarian under Article 63. A list of essential qualities, seven in total, has been provided under Article 62 whose absence would render a person unsuitable to become a parliamentarian. In Article 63, the list comprises 16 disqualifying instances. So in total we have 23 factors that can be grouped as ‘questions of fact’ and ‘questions of opinion’. Some factors, e.g. good character, observing Islamic injunctions or working against the ideology of Pakistan are matters of opinion while age, citizenship, bank loan default, and court conviction are questions of fact. Article 63(2) says that any question about disqualification will go to the speaker who after ascertaining that the question has risen will refer the case to the election commission. In ‘questions of fact’, the evidence is already there so the speaker does not need any more investigations but in ‘questions of opinion’, the speaker would demand some hard evidence before the case could be forwarded to the election commission. Powers of discretion are held under trust and must always be judiciously and reasonably exercised. Even Julius Caesar could not invoke discretion of not attending the senate session in the Ides of March. In the case of Mr Yousaf Raza Gillani, faithfulness to trust appeared lacking when the speaker used her discretion.

Mr Gilani in a television interview with Al Jazeera had publicly declared that if he was convicted, he would not remain prime minster for a minute and would resign. After being convicted, Mr Gilani would have established a good convention if he had remained true to his earlier pronouncements and had resigned the same day. A political system is lubricated by conventions and traditions that may not necessarily be found in a written constitution. Mr Zardari had already dented his reputation by defying his pledges made in public. Mr Gilani has done the same, which has not helped improve the image of the party leaders. Instead of establishing a good constitutional convention, now a very ominous precedent has been established.

The prime minister is the executive head and a strong charismatic prime minister is not only good for his own party but also helps in strengthening civilian supremacy. The manner in which a civilian President handpicks prime ministers is a rerun of the era of military dictators. The slide in the stature of the prime minister under the present government is too steep to leave anyone comfortable.

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From Yunis Habib to Malik Riaz, Daily Times, 16/06/12

OVER A COFFEE : From Yunis Habib to Malik Riaz — Dr Haider Shah

Entrepreneurs that create wealth need recognition as national heroes. However, as Karl Marx says, money is power and in private hands, it becomes a personal power

With the appearance of a ‘planted’ interview of Malik Riaz by a Lahore-based private channel, the fast paced and high-pitched drama that began with a whispering campaign has taken a new sensational turn. As a columnist of a national daily, I must say that I have been suffering from a kind of bipolar depression after reading news stories, op-ed pieces and watching various talk shows for the last few days. ‘It is the best of times, it is the worst of times’ is the line that best represents the pendulum-like movement of my emotional state after watching the conduct of various media personalities.

At a bigger level, Pakistan appears to be like the mythical Sisyphus who is suffering from the curse of moving in circles. Whenever one feels that a new era has begun, the ghost of bygone periods is resurrected and we begin the same excruciating ordeal all over again. Just a few months ago, the Asghar Khan case helped everyone see how dirty money was used by the intelligence agencies to ‘manage’ the political process of the country. For the first time, the shady character, Yunis Habib was exposed and former heads of the military establishment were made answerable for their past actions. However, here we are, dealing with another storm with a new tycoon at the centre.

Some time ago, an officer shared with me some interesting facts about Raja Zarat who was once just a clerk in the customs department. The clerk soon became chairman of Bawan Shah Group of industries and attained so much power that even collectors would seek his favour for postings. When his misdeeds became well known, he was arrested for a multi-billion rupees fraud. When asked why he was not arrested earlier, the answer was that he not only enjoyed the blessings of certain bigwigs of politics but intelligence agencies would also come to his rescue. Unfortunately, that is how a scheme of things works in reality behind the façade of patriotic slogans.

Moneyed men are mostly very risk-averse individuals who normally are frightened by their own shadows. When they roar like lions one must, therefore, not take everything at its face value. If the dots are joined, one can have a feeling that bekhudi besabab nahi Ghalib (ecstasy is not without a cause Ghalib). The extra cautious prime minister suddenly started putting up a very defiant show in the wake of his contempt of court conviction. The government seems to have reached a strategic agreement with the security establishment as both consider the expanding power and the growing prestige of the independent judiciary a cause for concern. After opening the Pandora’s Box of the Asghar Khan case, the Supreme Court has started ignoring the red lines drawn by the security establishment, for instance, asking difficult questions in the missing persons cases. Just as the US and international jihadis forged a strategic alliance in the 1980s to deal with the more potent threat of the Soviet Union, one can see a possibility of a similar alliance developing between the present government and the security establishment. Riaz Malik’s boldness may therefore be on account of some assurances received from these seats of power.

Sometime ago, I had written about the power of discourse and how various vested interest groups try to manipulate the social discourse by giving a strategic spin to observed facts. The Malik Riaz affair is also a good case study for understanding the mechanics of controlling the social discourse. First, let us examine the bare facts. A business tycoon has levelled an allegation against the son of the Chief Justice of Pakistan that he was looked after very well during his foreign visits by the family members of Malik Riaz and a few millions of rupees were spent on his protocol. The news is whispered into the ears of a few well-known media personalities, the Chief Justice takes a suo motu notice and the case is heard in the Supreme Court. Now these facts can generate three possible discourses. One, these allegations are baseless and one should not give them any attention. Second, these are allegations and can have a malicious motive, but must be properly investigated and whoever is found guilty must be punished. Third, the allegations are very serious and hence the Chief Justice must resign. If we wish to see rule of law and good governance flourish in the country, it is the second kind of discourse that we should promote. The most dangerous is the third type, which certain media personalities are trying to sell. Institutions are the sum total of the individuals that make them up and the values that drive the conduct of those individuals. If holding press conferences against the courts is not stopped, the state will disintegrate soon.

No individual should be punished just because we feel jealous of his rags to riches story. Entrepreneurs that create wealth need recognition as national heroes. However, as Karl Marx says, money is power and in private hands, it becomes a personal power. The law should deter amassing of wealth through dubious means or its abuse in any form. Just today, a tycoon Allen Stanford was sentenced to 110 years in jail by a US court for operating a Ponzi scheme that defrauded 30,000 individual investors of more than $ seven billion. We need to see the same long reach of the law, which should facilitate genuine entrepreneurs in Pakistan but must award exemplary punishments to those that use money to create more money by trying to purchase opinion makers and honourable judges of the country.

The writer teaches public policy in the UK and is the founding member of the Rationalist Society of Pakistan. He can be reached at hashah9@yahoo.com

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Song of life after dance of death , Daily Times, 9/06/12

OVER A COFFEE: Song of life after dance of death —Dr Haider Shah

There is no harm giving any person a hero status if consequently it can help in establishing some conventions relating to rule of law. We are in real short supply of heroes 

All nations evolve from people living together. However, people alone do not make a nation. There are some solidifying forces that are needed to transform a crowd into a nation. Rule of law and a shared concern for the safety and sanctity of the lives of ordinary members of the community are the most important forces that germinate an identity of nationhood. The dance of death played in the remote mountains of Kohistan and the Malik Riaz case in the Supreme Court, despite their gory and ugly appearance, have the potential of proving the forces that can make a nation out of the people living in Pakistan.
About the same time when a jirga (council of elders) in Kohistan was allegedly held, the media gave coverage to two other officially sponsored jirgas. One was held under the auspices of an NGO in Islamabad with the Khyber Pakhtunkhwa (KPK) Governor in the chair while the other was held in Peshawar with the KPK Chief Minister as the chief guest. The NGO-sponsored ceremony claimed that the tribal elders at Agency level had banned the tribal customs of sawara (giving away girls as brides to settle family feuds), jagh (claiming a young girl for marriage with or without her consent), and valvar (payment of money to the bridegroom’s family as a consideration for the bride). To what degree the sweetened announcements depict the reality on the ground, only time will tell. A veteran Pashtun leader, Afzal Khan, convened the Peshawar jirga. The speakers, after making politically correct speeches, called for peace in the region. It is not clear if the real parties to the conflict were listening to these calls, as afterwards we see no let-up in incidents of terrorism and counterterrorism in the region. 
While in the media these photo session opportunities based jirgas under official patronage were being reported, a jirga of another nature allegedly happened in the inaccessible village of Sartai in Kohistan and soon took the media by storm. At the time of writing these lines, two human rights activists who went on a fact-finding mission under Supreme Court orders have reported that they found two of the four girls alive and believed that no murder had taken place. This must come as a token of relief to all those who were shocked to hear the news of the murders a few days earlier. The claimant of the murders is still pressing hard with his earlier claim though. With no personal access to the facts of the case, I would rather comment on the brighter side of this dark incident. The Kohistan women’s story was the first incident of its kind in which the state, led by the Supreme Court, media and human rights activists, has shown deep concern for citizens who are living in a village that very few of us can even locate on the map. No doubt, we have seen commendable deeds in times of natural calamities, but it is when in normal times the heart of the whole country throbs after ordinary citizens, we can say that signs of nationhood have started appearing. 
Incidentally, when the court was monitoring the developments related to the Kohistan story, it was also occupied with another nation-building story that has now eclipsed all other headlines. A few well-known journalists brought forth a story that was making the rounds in a whispering campaign into the full glare of the media and the Malik Riaz and Arsalan Iftikhar case is now the main national story. With the advent of spring, all old questions stand reopened, said Faiz. It is no more a spring season but the Malik Riaz case has opened almost all official cupboards and the skeletons can no longer be kept obscured from public view. We, however, should not succumb to the temptation of announcing media-based verdicts before the case is even properly heard. Prima facie though the affair stinks, it is therefore advisable that we as observers remain very neutral and refrain from invoking party loyalties or personal likes and dislikes. The case, besides being a legal one, is also a rich case study for exploring how a power cobweb is weaved around big money and how major powerbrokers become part of one ruling syndicate. Politicians, media houses and military bigwigs…hum huae, tum huae, key meer hua…sub us ki zulfon ke aseer huae (We, you and Mir…all are snared by her long hair).
Some sceptical friends of mine opined that the Chief Justice wanted to become a hero again by taking swift action against his own son. My humble response is that there is no harm giving any person a hero status if consequently it can help in establishing some conventions relating to rule of law. We are in real short supply of heroes who can become icons for the cause of rule of law. We should not therefore view with scorn if someone gains a hero status in furtherance of such a noble cause.
Whether it is the Glorious Revolution of 1688 for England or the outbreak of the Civil War in the 1860s for the US, at times such major events are important for nation building as they lay the foundations of strong institutions. All nations thus get a few defining moments thrown at them by history. Hopefully, the dance of death in Kohistan will give rise to the melody of life all over Pakistan and the Arsalan Iftikhar and Malik Riaz case would also prove a blessing in disguise for establishing the principle that with money one can buy everything except justice.

The writer teaches public policy in the UK and is the founding member of Rationalist Society of Pakistan. He can be reached at hashah9@yahoo.com

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The 33 million dollar man , Daily Times, 2 June, 2012

OVER A COFFEE: The 33 million dollar man — Dr Haider Shah

Some analysts have suggested that Afridi has become an icon of the troubled relations between the US and Pakistan and his captors will use his incarceration as a bargaining chip

Judging by frequent loss of lives from terrorist incidents, sectarian violence, target killings, family feuds and fatal accidents, one may get a feeling that in Pakistan, human life has hardly any value. But at least one Pakistani certainly has a huge price tag, reminding me of my childhood days’ popular television series, the Six Million Dollar Man. This man has caused the US to announce a cut of a whopping $ 33 million from aid to Pakistan. Yes, Shakil Afridi is our multi-million dollar man.

The handling of Mr Afridi reminds me of the famous story of Shaikh Saadi, which is about a villager who enters a town and comes across a few stray dogs that bark menacingly at him. The villager tries to pick up a stone but finds it firmly stuck in the ground. He vents his anger saying, ‘What a strange town this is. Dogs are free and stones are bound here.’ International observers see the case of Osama bin Laden and Shakil Afridi not much differently. In almost all major newspapers of the world, the story of Shakil Afridi has appeared very prominently in the last few days.

The Washington Post in an editorial calls Afridi a victim of US-Pakistan tensions and poignantly asks, “How could Pakistan sentence someone to 33 years in prison for helping track down Osama bin Laden?” It makes a reference to Sherry Rehman’s apologetic defence wherein she had equated Shakil Afridi’s case with that of Jonathan Pollard who is serving a prison term for spying for Israel. The editorial argues that Pollard had provided sensitive documents to Israel while Shakil had not done anything of a similar nature. On the contrary, he had just helped the US track down a mass murderer that Pakistan was also bound, under the UN resolutions, to do everything in its power to apprehend. The paper wonders why Afridi has not been treated as a hero who played some role in eliminating a character that had brought a bad name to Pakistan.

The Daily Mail claims that Afridi was offered passage to the US after the Osama operation but he had refused the offer. The Guardian in its report focuses upon the surprising charges of linkage with the militant Lashkar-e-Islam group. It is of the opinion that since treason charges were too weak, the colonial times Frontier Crimes Regulations (FCR) system was used to award a 33 year prison term on the charge of helping a militant group when Afridi was working as a doctor in the tribal region. The spokesperson of the militant group has denied any such linkage with the doctor and instead has announced it will take revenge from the imprisoned doctor.

Some analysts have suggested that Afridi has become an icon of the troubled relations between the US and Pakistan and his captors will use his incarceration as a bargaining chip. In the absence of access to what goes on behind closed doors, analysts make inferences from events as they happen. One possible explanation for keeping bin Laden in Abbottabad was that at the most suitable time, Pakistani negotiators wanted to use him as a bargaining chip to gain extraordinary favours from the US. Frustrated by loss of such an important asset, they now want to use the saboteur of those plans for the same purpose. If Raymond Davis can be handed over in a single night, we should not be surprised to see the same thing happening in the case of Afridi when the right deal is reached. Hillary Clinton has already made a strong demand for the release of Afridi and the US Senate Armed Services Committee has made aid to Pakistan conditional to the doctor’s release. Like NATO’s supply route, the Afridi case is also bound to become another thorny issue in the already troubled Pakistan-US relations.

The timing of the Political Agent’s verdict is quite awkward. On the one hand, the PPP-led coalition government has been making tall claims about modernising FATA and abolishing its wilderness reputation, but on the other hand, it used the FCR to prosecute an accused for an alleged crime that was not committed inside FATA. ‘I am Caesar, I am the law’ seems to be the course that was adopted from the stage of arresting to the point of condemning the accused without proper access to due process.

Another aspect of the bad timing of the verdict is the message that we send out to the international community. Just a week ago, NATO concluded its conference in Chicago where besides Europe, Afghanistan was the main topic of concern. All NATO members were looking towards Pakistan with suspicious eyes, demanding a clearer policy towards India and Afghanistan. Worryingly, the Afridi episode will send out a very potent message to the world that anyone who defies the ‘boss’ and tries to help the US will attract the wrath of the boss. It is like telling the world that we are not much different from Somalian pirates. We shall use humans as hostages to secure aid and other facilities from the US and her allies. Neither Somalian pirates have earned a good name for demanding ransoms, nor are we earning respect by resorting to this blackmailing-based foreign policy, time and again.

Faced with a power shortage crisis and budgetary imbalance, perhaps it is in our national interest to ease pressures on our sustainability by sending out positive messages to the international community. The multimillion-dollar doctor can prove our man of crisis, provided rational and pragmatic decision making frees us from a strategic paradigm that has outlived its utility.

The writer teaches public policy in the UK and is the founding member of Rationalist Society of Pakistan. He can be reached at hashah9@yahoo.com