Dr. Haider Shah

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

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Who is supreme in Pakistan? Daily Times, 28/7/12

OVER A COFFEE : Who is supreme in Pakistan? — Dr Haider Shah

The near proverbial statement of De Lolme best captures this idea that “Parliament can do everything but make a woman a man, and a man a woman”

The standoff between the present government and the Supreme Court continues despite some goodwill gestures by the latter. Both print and electronic media are teeming with constitutional debates, which often boil down to one fundamental question, i.e. who is supreme in Pakistan? As a firm believer in democracy and the rule of law, I find this question too naïve and painful because the public arena is not a wrestling bout where the supremacy belt is up for grabs. 

In an earlier piece, I had dilated upon the notion of the ‘sovereignty of parliament’ (SOP) where it was contended that SOP is a purely British constitutional dogma. Some early commentators believed that the British parliament enjoyed complete sovereignty, as there was no written constitution to fetter its supremacy. The near proverbial statement of De Lolme best captures this idea that “Parliament can do everything but make a woman a man, and a man a woman.” The unchecked power of the British parliament can be seen best by referring to the Septennial Act, 1715, with which the British parliament prolonged its duration from three to seven years. What happens if parliament passes a law making itself a perpetual parliament? In order to ward off such undesirable possibilities, other countries have opted for the route of constitution-based political systems where the mother parliament after giving birth to the constitution abdicates its crown in favour of the new sovereign. Even the method of amendment of the constitution is provided by the constitution itself, and parliament cannot amend its own creation save in accordance with the dictates of the new sovereign.

The Attorney General, Irfan Qadir, recently made a shocking assertion that parliament could dissolve the courts. The learned attorney came close to what Leslie had once said a long time ago: “If a legislature decided that all blue-eyed babies should be murdered, the preservation of blue-eyed babies would be illegal.” However, the author had qualified his statement with an additional remark, “…but legislators must go mad before they could pass such a law, and subjects be idiotic before they could submit to it.” The author wanted to illustrate the point that even at the notional level there are two natural limitations on the complete SOP. First is external, that no parliament can afford making laws that run counter to popular opinion. Second is internal, that all lawmakers are products of their environment and hence think and act in a predictable way. If the natural limitations are extended to the realm of reality on the ground, we see that even the British parliament has traded off some of its sovereignty to readjust its role as a member of the European Union in particular and a globalised world in general.

Dicey also refers to the distinction between legal and political sovereignty. While law-making sovereignty resides completely in the British parliament, political sovereignty remains with the electors. Parliament represents this form of sovereignty as a trustee of the electors. Dicey contrasts the US, Swiss and British constitutions in terms of constitutional rigidity as a check on parliamentary sovereignty. The US constitution is quite rigid and hence any amendment is very difficult. The Swiss constitution is relatively less rigid; however, every amendment needs to be referred to the electors. There is no rigidity in the case of the British constitution where a simple act of parliament can change any constitutional practice. The Pakistani constitution comes close to the Swiss one in terms of rigidity; however, it does not make it mandatory to refer a constitutional amendment to the electors. The constitution in its opening preamble (made a substantive part of the constitution vide Article 2A) declares that sovereignty is exercised by parliament under trusteeship as it originally belongs to Almighty Allah. Personally, I do not like the divinity-laced assertions of the Objectives Resolution but as a firm believer in the rule of law, I have no other option but to treat every word of the constitution as sacrosanct. The sitting parliament did not amend these provisions of the constitution while carrying out a complete review of the constitution, therefore we have no other option but to consider every word of the constitution binding upon all of us, our personal inclinations notwithstanding. If the trusteeship duty of parliament is considered together with the amendment procedure provided under Article 239, one can argue that if a political party wants to bring out an amendment that has the potential of altering the separation of powers and checks and balances scheme of the constitution, then it must make it a part of its election manifesto. This way the electors will have a fair chance of affixing their sign of approval to the proposed amendment and hence parliament will use its legal sovereignty with a clear nod from the political sovereign as well.

In addition to the notion of parliamentary supremacy, another theme that is often used by the pro-government lobby is that it is not writing the letter to the Swiss authorities as it cannot do any unconstitutional act. Last week, we heard the prime minister reading out a prepared speech in the National Defence College in which he dismissed the Balochistan situation as the handiwork of external elements. The constitutional obligations under the fundamental rights Articles, i.e. 9 and 10, did not get his attention, while the missing persons’ case is being heard in the Supreme Court.

Reiterating my conclusion of the last piece, I once again suggest that the best option for coming out of the turbulent waters is to go back to the people who are the real source of all forms of supremacy.

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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Bangladesh, Italy, or early elections? Daily Times, 21/7/12

OVER A COFFEE Bangladesh, Italy, or early elections?—Dr Haider Shah

Given proper time, political parties can steer the country out of the difficult phase of history that we are in today

Pakistan today stands at a crossroads, where any adventurous move on the part of the major decision makers can put the country on a road that can plunge it into an abysmal future. The Pakistan People’s Party-led government thinks that, like Samson’s hair, the power and soul of the constitution lie in its single Article 248 that mentions immunity for the president and governors from criminal prosecution.
While the Supreme Court is enforcing the rule of law in a country where there are few such traditions, there is a risk of overheating within the judicial machine itself. The judiciary has an important watchdog role in all democratic countries as it facilitates the smooth running of the system. It, however, cannot transform a society on its own and its supporting role does not allow it to assume the role of a reformer or a messiah. This role remains reserved for a political party alone in any form of democracy. Some comfort was therefore drawn from the unequivocal resolve expressed by the Chief Justice of Pakistan in his recent speeches that the judiciary would not allow any adventurism that was not sanctioned by the constitution. Many commentators have feared a Bangladesh-style interim government, which will have the backing of both the military and the judiciary, to hold accountability of corrupt politicians and then hold elections. Such a move would not only amount to tampering with the constitution but may also withhold gradual maturity of the political system. The evidence of Bangladesh itself is also not very convincing as the same political parties define the political contours of the Bangladeshi political system today. In the case of Pakistan, the fault lines are quite different and run much deeper and wider. From ethnic warfare to radical extremism, our plate is full of all imaginable problems. There is no easy quick fix solution to such diverse and complex problems and all forced solutions in the past have only aggravated the situation. Political parties represent the viewpoints of different warring groups and are best trained to deal with complex issues. Given proper time, political parties can steer the country out of the difficult phase of history that we are in today. Anyone else, if promising a quick solution, either does not understand the nature of complexity or is simply lying like a cunning salesperson.
Fully advocating the cause of democracy and continuity of a constitution-based system in Pakistan, I am also alive to the fact that a democratic order survives when it delivers. Turkish democracy is still in its infancy but as the government of Erdogan has established a good governance record, it has wrested power from the powerful military. When economic indicators are down and the governance record is poor, mere sloganeering cannot prove a sufficient guard against outside intervention. This is not specific to fledgling democracies like ours but even the European democracies are not immune to it. Otto Dettmer, writing in the November 2011 issue of The Economist, sums up his analysis of the rise of a technocracy in the following words: “History suggests that technocrats do best when blitzing the mess made by incompetent and squabbling politicians.” In Italy, we saw that after remaining in the midst of economic turmoil as it registered sluggish economic growth and a spiralling public debt for a long period, Mario Monti, an Economics professor, was made a life senator. Then within a week, he was invited by the president to form a new technocratic government following the resignation of Silvio Berlusconi. A similar pattern was seen in the case of Greece more recently, and both internal and external stakeholders welcomed both the developments.
Dettmer in his analysis is doubtful about the ability of the new leaders of Greece and Italy to fix the problems as according to him the mistakes made by unelected experts in Brussels “will take many years, far longer than technocrats’ usual political lifespan. And it will need more than just brains and integrity.” This conclusion is in line with my earlier disbelief in quick-fix solutions for Pakistan as the source of many problems lie in the levers controlled by the non-political players in the decision making process. The recipe of change has to be found within the existing political system. We do not need messiahs but a political party or a coalition that must have the following attributes. One, it must have a clear national leader, with an appeal in most of Pakistan and who is ready to become the chief executive, i.e. the prime minister of Pakistan to restore it to its glory and power. Second, the leader and the party must be able to assert authority so that like the Turkish case, civilian authority becomes supreme. Third, the party must be sensitive to issues like governance and the rule of law and have a good record of responsiveness to public opinion. Fourth, the leader of the party must enjoy the respect of nationalist leaders in the troubled province of Balochistan so that a new process of national integration can be initiated. Fifth, the leader must be pragmatic in dealing with the main powers of the world today.
As neither the Bangladesh nor Italian models would work in Pakistan, the best option is to go for early elections in November this year. The US elections are also scheduled for the same month, therefore it would be a good coincidence enabling the new administrations in both countries to rethink and re-establish their relations for the next four to five years period. Hopefully, the judiciary, government and opposition parties would give a serious consideration to this prospect.

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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Wrong legislative priorities ! Daily Times, 14/7/12

OVER A COFFEE : Wrong legislative priorities — Dr Haider Shah

Sadly, for the government, the most pressing and burning issues in the country are contempt of court and dual nationality of its MPs

Haste often arouses suspicions about even well intentioned measures. In the case of the hurried legislation on contempt of court, however, reservations abound. These are even shared by some of the big brains of the ruling party as they were not consulted when the new law was drafted.

A scholar of jurisprudence dubs contempt of court as ‘Proteus’, who was a mythological sea god capable of changing shape at will, much as the notion of contempt assumes an ‘almost infinite diversity of forms’. Lord Diplock explains the essence of the law of contempt of court by emphasising that various forms of contempt “involve an interference with the due administration of justice, either in a particular case or more generally, as a continuing process”. According to Diplock, “It is justice itself that is flouted by contempt of court, not the individual court or judge who is attempting to administer it.”

The contempt of court principle, therefore, is universally regarded as one of the fundamental cornerstones of all legal systems. In the British legal system, the law relating to contempt of court is found in the Contempt of Court Act 1981 and in common law. The Act was passed in response to the decision of the European Court of Human Rights, which found in a newspaper’s case that the English contempt law contravened Article 10 of the Convention. The statutory law, therefore, intended to give greater protection to freedom of speech as under common law courts exercised unlimited powers. In mature democracies, the central theme of the contempt of court-related debate is about establishing a balance between freedom of expression and preserving the integrity of jury-led trials in the courts. The wilful contempt of judges in the court is dealt with by common law and judges can decide such cases summarily themselves. 

The context of Pakistan is quite different as here judges have been forced to take fresh oaths and courtrooms attacked by unruly mobs, where judges have been dismissed and even put under house arrest. A new Pakistan can never be created unless there is a renewed commitment and consensus over treating the judiciary with greater respect. Unfortunately, a few dollars stashed in some foreign country are plaguing the entire political system of the country. 

Pakistan is faced with many challenges that need attention of the highest order from both government and legislature. Terrorists are released from the courts as the ordinary laws of evidence fail to deal with the demands of special circumstances created by modern day terrorism. In other countries, special laws were enacted to help law enforcement agencies deal effectively with the new menace. Our government has taken little interest in addressing the legal challenges in order to improve the chances of success in our long drawn battle with jihadi terrorists. Another major area of concern is the widespread corruption and here, lack of political will to legislate is quite conspicuous. No serious effort has been made by government to come up with an accountability law and whenever reminded, it offers a very flimsy pretext for not doing so. In the case of women’s rights, the domestic violence bill was put in cold storage as the government dragged its feet on it and did not rush it through like the contempt of court law. There is a consensus among civil society groups and human rights activists that the blasphemy laws of General Zia need reappraisal so that their misuse is minimised. But even after the lapse of four years, little progress has been made on this issue of highest importance. Sadly, for the government, the most pressing and burning issues in the country are contempt of court and dual nationality of its MPs.

Unlike the British law of contempt, which had its origins in common law, Pakistani law derives its basis from the constitution itself. Contempt of court has been defined by Article 204 of the constitution and authorises the Supreme Court or a High Court to punish any person who:

(a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court;

(b) scandalises the Court or otherwise does anything that tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt;

(c) does anything that tends to prejudice the determination of a matter pending before the Court; or

(d) does any other thing which, by law, constitutes contempt of the Court.

Any law passed by parliament, which directly or indirectly breaches the provisions and spirit of this Article, can be declared void by the honourable court. Some prominent constitutional experts have already spotted certain weaknesses in the hurriedly passed law. There is one very obvious objection. Article 204 is non-discriminatory in empowering the courts to punish any person found guilty of the offence of contempt. However, the new law tries to meddle with this constitutional power by relying on Article 248 of the constitution where the president, prime minister, federal ministers and chief ministers have been provided immunity from judicial scrutiny of their official actions. Immunity is no longer a reasonable ground of discrimination that flies in the face of fundamental right guaranteed under Article 25 (1), which states: “All citizens are equal before law and are entitled to equal protection of law.” 

The government should have used its executive and legislative powers in dealing with the two-headed monster of corruption and terrorism. At the moment, it is wasting its energies and image by pursuing unwarranted priorities. 

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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When doctors turn into Mr. Hyde. Daily Times, 7/07/12


OVER A COFFEE : When doctors turn into Mr Hyde — Dr Haider Shah

Could any office bearer of Young Doctors Association share with us how many licences of their members they helped in cancellation where the members fell short of their expected standards?

After witnessing some ugly scenes, it comes as a relief to note that finally, some sanity has prevailed among doctors and normalcy is returning to hospitals in the Punjab. The situation reminded me of the London riots when some groups of opportunist youth went on a shoplifting spree. A few theory-led commentators started digging social causes for the unrest, but more pragmatic analysts termed that a failure of the police to deal with thugs swiftly and firmly. When a house is on fire, the first concern is to extinguish the fire; what caused the fire can be investigated later on. Similarly, when public order is damaged, the state has to act resolutely to re-establish its writ. On previous occasions, the Punjab government had shown restraint and excessive accommodation while responding to the agitation and nuisance created by doctors, which emboldened them to the extent that health and lives of ordinary citizens became their least priority.

We are accustomed to the news of extremist radicals abducting foreigners or local dignitaries and then presenting their demands to government. Their demands often include release of their jailed colleagues and when these demands are not met, the unfortunate kidnapped ones are often killed in cold blood. If a comparison is made the conduct of young doctors’ association was not much different. They do not need to resort to kidnapping, as poor patients are already their captives, which they use for blackmailing purposes, and when demands are not met, like Taliban, they do not refrain from putting the lives of vulnerable patients at stake.

The problem of abusing the right of association, however, is not limited to doctors only. In the recent past, we have seen lawyers thrashing judges or coming to the support of a member of their community who had allegedly murdered a female servant. In civilised societies, the main function of professional bodies is to regulate the professions and to ensure that their members provide a high quality service. They act as regulators by initiating disciplinary action against a member who is charged of misconduct and by revoking licences of misbehaving members. Could any office bearer of Young Doctors Association share with us how many licences of their members they helped in cancellation where the members fell short of their expected standards?

During my student days, I can recall that a few student leaders of the Khyber medical college belonging to various political parties after graduation could not remain inert for long and established the Pakistan Doctors’ Association to satisfy their restless souls. Enjoying a celebrity status, the leaders of that body would not miss any opportunity of going on a strike on the slightest pretext. If a doctor had slipped on a banana skin, you would find hospitals shut the next day. A few years ago, I had a chance of observing the state of affairs in our hospitals as I stayed with my late mother during a surgery at a Peshawar hospital. From nurses to doctors, I noticed a culture of absence of empathy towards patients. When the situation was brought to the attention of the hospital’s executive director, he was candid in saying that he could not even transfer an ordinary paramedic, as the whole union would go on a strike.

In the UK, in November 2011, students organised a big protest march against imposition of tuition fee. During their protest in London, a group of students resorted to vandalism and violence. These acts of violence undermined the campaign, as all shades of public opinion were unanimous in condemnation even though people in general felt sympathetic to the demands of the student community. The young doctors in the Punjab unfortunately ignored this lesson. Perhaps, they were emboldened by the political expediency-led appeasement policy of the government in the past. The young doctors’ association was formed in 2008 when a few doctors were then proceeded against on professional misconduct and negligence charges. As the government withdrew the cases, indiscipline bred more indiscipline whose sinister implications can be seen today. Again, the Punjab government has released the arrested doctors, not allowing law to take its course. Does this mean that writ of the state is an issue in the case of Taliban or Baloch nationalists alone?

Poor pay structure is a public sector wide issue. The provinces can allocate greater budgetary expenditure to health and education if they get more from the federal divisible pool. This in turn needs a complete reappraisal of our spending priorities at the federal level. In the UK’s latest budget, £240 billion have been allocated to health and social protection, while £39 billion are for defence spending. Turning to our budget, we see that military expenditure and debt servicing together leave little for social welfare and developmental needs. If doctors are genuinely sincere in changing the lot of all employees, then they should demand rationalisation of our national budget. Doctors are important but they are not special breed. Teachers, lecturers, and sepoys, for example, are also performing important duties. Provincial governments do not pluck money from trees. Doctors have to be, therefore, realistic in their demands.

In the late 18th century, Robert Louis Stevenson wrote the Strange Case of Dr Jekyll and Mr Hyde, which made the problem of split personality between the charitable Dr Jekyll and the villainous Mr Hyde famous. Little did he know that in Pakistan erosion of professional ethics would cast almost the whole doctors’ community into the mould of the vicious Hyde. It is in the best interest of doctors’ community to reposition itself as Dr Jekyll on a permanent basis so that it can regain respect lost during an ill-conceived campaign. 

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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