Hearing of US Senate Committee

 This article appeared in Daily Times on Monday February 13, 2012 as my weekly column BAAGHI

While the reports released by the US State Department kept indicting China, Iran and other ‘rogue’ countries in the ‘axis of evil’ for human rights violations, similar reports kept sprouting from China and Russia against the US. More so, international rights watchers like Amnesty International and Human Rights Watch accused the US of “practices that grossly violate human rights, like the death penalty, poor prison conditions and sentencing youth offenders to life without parole”.The Apologetic Index, which deals with the cults, sects, religious freedom and other human rights, records that the US government “generally fails to acknowledge, let alone address, America’s own human rights violations (e.g. use and promotion of the death penalty, a faulty ‘justice’ system, multiple violations of international treaties, export of torture equipment, continuing trade war on Cuba, failing to curb hate groups, support of extremist groups such as the Church of Scientology, and so on).”

Why is it that the US continues to judge other countries but when others try to judge it on similar counts, its attitude is ‘who are you to judge us’ and ‘how dare you meddle in our internal affairs’. The question got an answer when Iran’s Foreign Ministry spokesperson Ramin Mehmanparast censured a UN General Assembly resolution against his country for human rights violations in November last year. “Unfortunately, human rights has turned into a political issue and a tool in the hands of the western hegemonic and bullying countries,” said Mehmanparast.

Human rights have indeed become a tool for conducting international diplomacy and pursuing big powers’ own global interests. For instance, one would not see any big power having an iota of conscience pangs for human rights violations perpetrated by its strategic allies as long as they keep producing results for those powers. Examples are as few as there are sand grains in the Sahara Desert. Saddam’s Iraq, Gaddafi’s Libya (in his life and his death), Syria, Lebanon, Israel, Palestine, Kashmir (sounds rhetorical? Yes, it is), and most of all, the Kingdom of Saudi Arabia — all were and are bastions of human rights until they serve their purpose.

Pakistan, being a rapidly unallied ally, has recently started getting the heat. The Subcommittee on Oversight and Investigations in the US House of Representatives Committee on Foreign Affairs held a special hearing on what they know as ‘Baluchistan’ on February 8. The hearing started with an introduction to ‘Baluchistan’ and its history by the chairman, Dana Rohrabacher. The introductory two minutes were quite heavy with jumbled-up facts and one-sided views on the history of this region. There were five presentations covering different aspects of the conflict going on in Balochistan, by five witnesses of sound professional experience, the analyses of whose arguments is not possible in this place. The witnesses were followed by remarks from the committee members, displaying their shock, displeasure and…self-righteousness.

Nonetheless, despite all the human rights politics in play on what Rohrabacher kept calling ‘Balookistan’, Pakistan should not let it go under the fog of the US’s “ill-advised move” to “intrude in our internal affairs”. Issues that came up during the hearing need serious self-evaluation if another 1971 is to be avoided. Putting everything down to ‘international conspiracies’ and the over-defined ‘enemies’ of Pakistan and adopting a sense of victimhood so popular among us would only damage our own selves. The ‘difa’ (defence) of sovereignty is in appraising ourselves and taking corrective measures, not in prompting civil disorder by instigative rallies in big urban centres.

When Ralph Peters, a military analyst, said in his testimony, “Pakistan is not an integrated state, but a miniature empire that inherited its dysfunctional and unjust boundaries from Britain’s greater, now-defunct empire,” it demanded serious introspection. Peters might have been a bit liberal in using the term ‘empire’, but it should still concern us for the way we have been conducting ourselves offers little material for defence. It might be hinting at the future course of US policy towards Pakistan when Peters said, “We must set aside our lazy Cold War era assumption that Pakistan is a necessary ally and recognise that the various insurgent movements challenging the Islamabad government are engaged in liberation struggles against an occupier.” Pakistan might have become a soiled diaper for the US, but this must not blind us to what we have been doing with Balochistan and to all the territories that acceded to Pakistan in 1947-8.

We can keep screaming about human rights abuses in Indian-administered Kashmir but it must not be used to camouflage our own atrocities in our own courtyard. That our citizens in Balochistan have been victims of most brutal subjugation, suppression, abuse, violence and rights violations at the hands of our own state is a fact that must shame us and activate us for immediate reaction. But the fact that the civil and political society in Pakistan are suffering from a general ignorance about and insensitivity towards Balochistan’s plight is something extremely disturbing.

Pakistan’s mainstream TV channels seldom broadcast anything about the issues and problems of the people in Balochistan. The general ‘opinion atmosphere’ is completely devoid of an inclusive narrative that speaks of the Baloch problem. Amidst all this prevalent callousness towards Balochistan, where all the efforts of the Balochistanis (the Baloch and the Pakhtuns of Balochistan) to make their voices heard are being sabotaged by the state of Pakistan, they have started reaching out to international bodies who watch human rights violations. Would you blame them? When the Baloch nationalists, intellectuals, professionals and opinion makers are target killed, which go unnoticed by an otherwise ‘vigilant’ civil society and media, what options are we leaving for the oppressed Baloch?

The executive and the judicial branches of the state of the Islamic Republic have to be accountable for the criminal miscarriage of state writ and justice in Balochistan. The case of 11 missing persons being heard by the Supreme Court against the premier intelligence agencies of Pakistan might be a good omen but it demands similar, in fact more forceful, action on Baloch missing persons and mutilated bodies that they find on a daily basis in Balochistan’s streets. Those ranting about our sovereignty being hurt by drones must also shed at least a few tears, whatever their worth, for the absence of state writ in most of Balochistan.

In an extremely dreadful situation we have created for our fellow citizens in Balochistan, the Baloch nationalists have reverted to counter-violence and aggression, the solution of which does not lie in further incriminating and criminalising their actions but in addressing their legitimate concerns. Reminding the US of its failure to notice human rights violations even-handedly might be a reflex action; it certainly is not something that would prove useful to Pakistan’s own interest, which is in self-assessment and taking remedial measures. When Hazara Shias are killed en masse, Baloch youth are regularly kidnapped by state agencies, mutilated bodies of Baloch nationalists become the order of the day, Baloch intellectuals and professionals are target killed, hue and cry over the US’s double standard is not only unnecessary but dishonest too. Complacency is the worst enemy of Pakistan.

This article appeared in Daily Times on Monday January 30, 2012 as my weekly column BAAGHI

Atiqa Odho needs to change her name. Not only her name but also the prefix if she wants to avoid further humiliation that she possibly could not and would not want, just because she is a woman and does not bear the right prefix before her name. Brigadier Zafar Iqbal had both — the right name and the right prefix.

The good brigadier embarked on a PIA flight from Karachi to Lahore on Saturday night, intoxicated with the ‘sherbet’. The captain of the plane handed him over to the Airport Security Force (ASF) after the brigadier publicly harassed one of the female crew members. The ASF, obviously, could not hold him for more than a few minutes when they discovered the full name of the detainee. No wonder the news item merited just a few lines in Sunday newspapers. I am still waiting for the ‘suo motu’ and media-panic that we saw in Atiqa Odho’s case. Pertinent to remind here, Ms Odho was neither drunk nor did she harass anyone on the flight.

This points to two serious maladies of this society: one, a strong gender bias that women of this country have to endure everywhere, including the courts; and two, unjust and unfair partiality that society confers on the military. It is not only about an overly powerful military but also about an extremely weak civil society. It would be naïve to believe that civil society in Pakistan is powerful enough to foil any attempt to usurp power from the civilian entities. This is mainly because the military here never departed from power. Irrespective of who occupied the buildings of the Prime Minister Secretariat and the Presidency, the military always ruled in the country through its incontrovertible influence over political decision-making and social phenomena.

The way things happen in the court, and outside of it, memo scandal is a case in point. In the memo scandal, Husain Haqqani was treated as an accused by the media and society at large because the military thought so. Everything else had to be in sync with what the military wanted or at least, was perceived to be wanting. The same ‘evidence’ (the BBM conversations claimed by Mansoor Ijaz that took place between him and Husain Haqqani) implicated the head of the ISI who was accused in the same BBM conversations to have spoken to the leaders of some Arab states and gotten their consent to sack the present government. But no one from the media, politicians (even the ones who portray themselves as most committed to civilian supremacy) and the judiciary could ever point a finger towards General Pasha, the accused. Husain Haqqani was an easy target because he was not a general. Or even a brigadier.

Later, the chief of army staff and the head of ISI submitted their affidavits in clear departure of the government’s point of view — the same government that both of them are accountable to. The prime minister was openly criticised by everyone for calling this action of the two generals as unconstitutional. So much so that the media wing of the Pakistan Army, the ISPR, attacked the prime minister — their boss — by issuing a strongly worded statement warning the government of grave consequences and serious ramifications. So there were two statements, one by the chief executive of a country castigating his subordinate generals for unconstitutional actions, and the other from the subordinate generals threatening their boss with grave consequences. Guess who had to retract the statement? You got it right, it was the boss. The Islamic Republic is unique in its construction.

What can be more worrying for a people whose representative is humiliated by an agency that should be subordinate to the people. The agency, it is more perturbing, does so with popular consent. The absence of popular outrage amounts to consent if one could decrypt public reactions. We can go on endlessly criticising hungry-for-power generals, selfish politicians, corporate media and an ambitious judiciary, but what remains a fact is Pakistani society’s utter failure — rather refusal — to grow from a Praetorian state to even a half decent egalitarian democracy.

Samuel Huntington in his seminary work on civil-military relations identifies Praetorianism as a key factor in the relationship between a weak civil society and a strong military. In a Praetorian society, the institutions remain weak, giving way to social groups to act independently in order to achieve their political goals. In such situations, any institution having control over the instruments of force, wields power. In Pakistan, the army is the prime institution that acquires power — military and political — through such control. The terrorist organisations, religious parties and their sectarian brethren are only second to the military in being allowed to exercise control over the instruments of force. This open allowance is possible when political institutions are at their lowest strength.

Those responsible for building and fostering political institutions, thus, are either eliminated by the powerful institutions or get co-opted by them. In Pakistan, this phenomenon has resulted in an ultimate breakdown of political institutions. This civilian breakdown has been largely used by the powerful and institutionalised military on the pretext of ‘filling the vacuum’. Little does our ‘concerned’ army realise that attempting to fill the vacuum with even more mediocrity would not only impair civilian capability but also the military’s own professionalism. What the military relies on while attempting the country’s governance is its institutional strength. This strength comes from, to borrow from Huntington again, the military leadership’s generational character that enables its adaptability, the organisational complexity achieved through its hierarchical structure, its de facto autonomy and the coherence among its various sub-systems. This largely mechanical superiority that the military enjoys over a fragmented and disunited civilian society keeps the military under the impression that it can replace a political agency, or at least keep the civilian political organisation under its strong influence for making things work.

This has miserably failed not only in political governance but also in keeping up the military’s own professionalism. A professional soldier should hardly have an inclination of retorting against the authority he works under, with threats of grave consequences. When the prime minister of a country has to retract his statement and try to placate his own subordinates, this is a most telling situation not only about the chief executive, but also about the subordinate. That the military has little capacity to govern the country and has eroded its own professionalism are facts only to be disputed by someone naïve, going by the events of the last 10 years. If there was a time for civil society to start a meaningful dialogue with the military, it is now.

In such a backdrop, any attempt at starting a civil-military dialogue should be welcome, provided the dialogue is happening with the right people. The retired military officers who spent 35 years in planning wars and strategising military takeovers of the country cannot become ambassadors of peace and civilian supremacy overnight nor could they be taken as ‘interlocutors’ of such a dialogue. If a dialogue is to be, let it be among the people who represent alternative voices in civil society with a strong commitment to civilian supremacy, and those who call the shots in the power structure of the armed forces. A dialogue between a deer and a lion is no dialogue.

But sadly, this particular incident in which 15 soldiers from Pakistan’s security forces were brutally killed by the militants from TTP, went without public and political rage. One argument that someone gave me on Twitter was, there was more outrage against NATO because they are Pakistan’s allies, while Taliban are the enemies. Well, this argument could be crafty, not honest. If Taliban are enemies, it is all the more necessary to give public support to our security forces and TTP must be confronted with a public sentiment against them. Imran Khan who does not leave an opportunity to radicalize the youth against the West, must be held responsible specifically because he claims to represent 60% of the country – the youth bulge – and does not feel it important to shape up public opinion against the militants and in support of our security forces who are fighting them. Sad and shameful.

Below is the video, which is NOT RECOMMENDED for people with weak heart and children below 18 years of age. It is graphical and will make you numb for hours. In fact, many nights. My heart cries for these soldiers, for these sons of my country being butchered like this by militants who are doing it in the name of religion. It will be shameful if an ordinary Pakistani does not wake up and stand with our forces who are fighting to save our country from militants.

Heart felt condolences to the families of these martyrs. Pakistan zindabad

This was written for The Open Magazine of India, and appeared on Saturday January 21, 2012

EYES RIGHT! Pakistan’s Prime Minister Yousuf Raza Gilani and Chief of Army Staff General Ashfaq Pervez Kayani preside over a military exercise - Photo: Open Magazine

ISLAMABAD ~ Ever since democracy was restored in Pakistan after the general elections of 2008, not a day has passed without a crisis—sometimes engineered, sometimes resulting from the government’s weaknesses and incompetence.

The country’s two major political parties, the Pakistan Peoples Party (PPP) and Pakistan Muslim League-Nawaz (PML-N), joined hands to contest the elections, which were boycotted by most right-wing religious parties including Imran Khan’s ‘movement for justice’—the Pakistan Tehreek-e-Insaaf (PTI). One common thread that ran through the winning PPP–PML-N coalition was its strong opposition to the ‘establishment’ (an oft-used euphemism for the military, which remains the largest and most powerful political actor in Pakistan).

The PML-N, foreseeing an economic crisis as well as one of governance, decided to leave the coalition and take on the role of a ‘meaningful’ opposition. But it would be naïve to believe that Pakistan’s key political events were only those being played out in parliament and among political parties. Newly revived, the country’s civil society—of lawyers largely—was still riding the exuberance of two successful campaigns for the restoration of the judiciary, under threat from Musharraf in July 2007 and later from the newly elected government in early 2009. The same civil movement had also given rise to a potent and dynamic media.

Massive corruption charges (still unproven in any court of law) had been used to put the PPP’s Asif Ali Zardari in jail for nearly a decade. During this period, he had to confront a highly antagonistic bureaucracy and judiciary. One story goes that during this time, one of the seniormost judges on the bench once flung a file at Zardari’s face and challenged him to get bail if he could. He could not get bail, but did get spondylitis as well as injuries on the tongue and neck that were claimed to have been inflicted by torture in prison. The result: while Zardari has a history of forgetting personal persecution, the judges do not, so the enmity lives on.

Benazir Bhutto, who was in self-imposed exile, had already earned Musharraf’s rage for her outspoken criticism of his plans. While the PPP’s past political positions since the early 1970s had been largely based on popular sentiment on Kashmir (against India), Benazir had been able to reverse much of the thrust of her father’s foreign policy, especially vis-à-vis India, even while sometimes maintaining a belligerent public posture.

Negotiating with the PPP, Musharraf made sure it legitimised his election as president in 2007, and in lieu issued a notorious waiver on all ‘politically motivated cases’ through the National Reconciliation Ordinance (NRO). General Kayani, then chief of the Inter-Services Intelligence (ISI), had negotiated the NRO on Musharraf’s behalf. It was challenged in court as soon as the judiciary was restored in 2009. The PPP’s hesitation in supporting the restoration was not something the judges were in a mood to forgive.

This is the backdrop against which Pakistan’s present stage of politics has been set. A belligerent media, a politicised judiciary, an eager-to-rule army, an opportunist clergy, a coterie of selfish pro-establishment politicians—all set against the ruling coalition, especially the PPP, and more so, President Asif Ali Zardari. The problem for the ‘establishment’, though, is that moving its Brigade 111 from Rawalpindi to a couple of buildings on Islamabad’s Constitution Avenue is not as easy and kosher as it might have been in the 1950s or even 1970s. After the army did carry out a coup in 1999, it had to endure severe public disapproval, which gradually started showing on the force’s own morale. At one point, Pakistan’s army officers were ordered not to go to public places in uniform.

Covert martial law or controlled democracy was the best of all available options. But even that did not prove to be easy because of elements within the government that managed to thwart the army’s control of policy. Even foreign aid legislation was manipulated by civilians and linked to civilian supremacy and democratic rule in the country, under the Kerry-Lugar-Berman (KLB) legislation of the US Congress. Husain Haqqani, Pakistan’s ambassador to the US, was one of those ‘rogue elements’ committed to civilian rule and had reportedly played an important role in the passage of the KLB bill. He had to be tackled. The recent memo scandal—which concerns an unsigned note allegedly sent via Haqqani from Pakistan’s political leadership to US Admiral Mike Mullen asking for American help in curbing the army’s power—did that quite well. Haqqani was made to resign.

Amid all this, Imran Khan emerged as a potential ‘third force’ in Pakistani politics. With the overwhelming support of the youth, Khan poses a threat to the two traditional loci of political power—the PML-N and PPP. Both of them, though often at odds, are still working together. The PML-N has been worried about the upcoming Senate of Pakistan elections (due in March 2012), in which the PPP was expected to gain a majority. Such a majority in the Senate could hamper legislative business in the National Assembly. It has, thus, started its ‘Go-Zardari-go’ campaign from Punjab; this way, the PPP-led government could be made to pack up before the upcoming Senate elections.

But after a massive October rally held by Imran Khan, the PML-N has clearly said it would not mind a PPP majority in the Senate. Nonetheless, maintaining a semblance of antagonism towards the PPP would allow the PML-N to project itself as an alternative to the ‘incompetent and corrupt’ ruling party. The PTI, in turn, needs time to organise itself—both to select suitable electoral candidates and register its hitherto unregistered voters. The traditional parties would rather press for as early an election as possible to prevent this.

While Pakistan’s political parties are at odds, the ‘establishment’ is all set to teach a lesson to all those who it thinks have been responsible for reducing the army’s clout on the policy front, especially on the country’s counter-terrorism strategy and Afghan policy.

While the memo scandal was helped along by the hyper-nationalism of the urban middle-class, the anger against Musharraf’s controversial NRO has been brought to boil once again. Pakistan’s apex court had earlier ruled that all corruption cases be re-opened, including one in a Swiss court that was closed after Musharraf wrote a letter to the Swiss Government. The [apex] court had ordered the government to write to the Swiss Government to re-open those cases. This order, the government in turn maintains, is against the constitution that grants immunity to the president.

In recent developments, the superior court has charged the prime minister with contempt-of-court for not writing that letter [to the Swiss], and has ordered him to appear in court. His counsel’s licence has also been suspended for contempt-of-court. As of now, an old party comrade, Aitzaz Ahsan, has been appointed the PM’s counsel on this case. Ahsan had earlier been sidelined within the PPP for his apparent closeness to the chief justice, when he was a prominent leader of the lawyers’ movement.

The army is also in no mood to forgive the ‘independence’ of the civilian government, especially of the prime minister who has lambasted the army twice in a couple of weeks. A strongly worded statement from the Inter Services Public Relations (ISPR) followed the prime minister’s media jibe against the army chief and ISI head, who had submitted affidavits to the court that contradicted the government’s position on the memo issue. The prime minister had called it extra-constitutional and illegal; the army, in turn, threatened the PM with ‘grave consequences’.

While general elections are due in the later part of 2013, they may be held as early as October this year. The prime minister, who is appearing before the court on 19 January, is expected to cite the constitutional immunity enjoyed by the president. Scenarios for the endgame of the government will emerge only after the court’s decision. If the prime minister is convicted or sentenced for contempt, he will be disqualified from holding public office, but this will require another procedure within the National Assembly that might take a week or two. If the prime minister decides to resign meanwhile, it would be a good time for the PPP to oblige one of its coalition partners by nominating a PM from its benches.

All this points to an early election, but suggests no overt coup is in the offing. Rather, covert control by the army is a much more likely option. The timing of the election, however, is crucial and would determine whether the PTI can make a big impact. October 2012 seems to be a time that suits everyone, but anything can happen any time in this ‘land of the pure’. As a popular Urdu adage goes, let’s see what posture the camel adopts.

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Marvi Sirmed is a columnist with Daily Times, Pakistan. She is also a member of the Council of Complaints, Pakistan Electronic Media Regulation Authority.

Appeared as my weekly column BAAGHI in Daily Times on Monday January 23, 2012

The President, the Prime Minister, the Chief Justice of Pakistan and Chief of the Army Staff - Photo by AFP/AP

Umpteen talk shows on 24/7 ‘breaking news’ media in Pakistan tell us almost daily how bad is democracy, how this democracy is worse than the dictatorships we have had, etc. TV presenters and reporters show little care for facts-based evidence to substantiate their claims. The act not only goes largely unchecked but brings more ‘ratings’ as a bonus. Who would like facts to come in the way of a good story?

The recently blown up issue of the president’s immunity clearly granted by the constitution is being debated in a furious media. Last week, Prime Minister Gilani was called to the Supreme Court by a bench hearing the National Reconciliation Ordinance (NRO) case, to explain his inability to send a letter to the Swiss courts for opening the cases against President Zardari, failing which he might be charged with contempt of court. Prime Minister Gilani went and informed the court about the existence of Article 248 in the constitution under which the president has immunity from being tried for criminal cases.

The argument of passionate ‘constitutionalist’ journalists and newfound ‘analysts’ against presidential immunity is whether it is against the spirit of Article 25 of the constitution, which guarantees equality of all citizens before the law. It is quite pleasant to see them quoting Article 25, because the same Article is almost always negated when it comes to the Ahmedis and actually all religious minority communities. If “equality of all citizens”, as per Article 25, is being invoked against the immunity from judicial action, it must also be invoked for the rights of the Ahmedis, Hindus, Christians and Jews (yes, there is a small community of Pakistani Jews still left) to practice their faith and participate in national decision making and governance. It is then an equal right of every citizen of Pakistan, irrespective of caste, religion and gender, to become the prime minister or the president of Pakistan.

There is another argument by a smug and self-righteous ‘editor investigation’ of a big media house, who regularly contributed stories of corruption about the chief justice in February 2007 but later got pangs of conscience and became an obsessive part of the ‘lawyers’ movement’ for the restoration of the deposed judiciary. The pious journalist is seen on almost all the main TV channels where he is religiously being invited as an ‘expert’ (of something hitherto unknown), advocating that the constitutional immunity to the president is against the spirit of justice as well as the constitution itself. This flabbergasting discovery of the virtuous journalist seems slightly economising on honesty, truth and common sense.

The immunity the constitution grants to the president is an internationally accepted norm. What is not known to the world is our practice of granting permanent immunity to the military and judiciary. In 2005, newspapers told us about a big scam of the Defence Housing Authority (DHA) in which DHA lands were being sold to multiple buyers, looting many hundreds of billion of rupees from the people. The head of the DHA, a serving army officer, was transferred (no, he was not sacked if you are wondering) while a few estate agencies were ‘sealed’, only to be reopened a few months later. No one dares to report on what happened afterwards. And this is just one case.

According to a report by Mr Rauf Klasra in 2006, many top military officers had their loans written off. This fortunate lot included five lieutenant-generals, two major-generals and a battalion of other senior uniformed beneficiaries, with some army managed institutions to boot. According to the official list of loan write-off beneficiaries tabled in the National Assembly, those who benefitted from written off loans to the tune of millions of rupees were Lieutenant-General (retd) Ali Kuli Khan and his father Lieutenant-General (retd) Habibullah Khan, Lieutenant-General (retd) K M Azhar, Lieutenant-General (retd) SA Burkey, Lieutenant-General (retd) Safdar Butt, Air Marshal (retd) A Rahim Khan, Air Marshal (retd) Viqar Azeem, Major-General Zahid Ali Akbar, Brig M M Mahmood, Begum Omar Mahmood, Saeed Ahmed, Gohar Ayub Khan, Raza Kuli Khan (brother of General Ali Kuli Khan), Major-General (retd) M Mumtaz, Lieutenant-Colonel (retd) Shaukat, Major (retd) Tajuddin, Major-General (retd) Ghaziuddin, Major-General (retd) G Umar, Lieutenant-General (retd) Safdar Butt, Major-General (retd) Abdullah Malik, Colonel (retd) M Zafar Khan, Mohammad Afzal Khan, and the list goes on.

Similar concessions go to the judiciary also. There have been hundreds of cases of corruption, misappropriation of funds, misuse of powers, misconduct, etc, against the judges from the superior, higher and lower judiciary, well reported in the media pre-2007. The judiciary, according to the surveys conducted by Transparency International in the last many years, has been in the top five most corrupt institutions in Pakistan. No head rolled. Accountability is even difficult when most prominent and senior judges are accused of misusing their authority in getting lucrative jobs for their sons, completely making a mockery of merit and the principles of justice. Since some are more equal before the law, the constitution (and Article 25) may not apply evenly despite winning a ‘free judiciary’, a democratically elected parliament and an army that ‘respects and protects the democratic system’.

When it comes to independence and accountability, some of our powerful institutions always opt for the former for themselves and the latter for the politicians — only politicians. The glorious National Accountability Bureau (NAB) has its exclusive domain that does not include the military and the judiciary. Similar is the case with the splendid Pakistan Electronic Media Regulatory Authority (PEMRA) Ordinance that excludes both these institutions. Even the Accountability Bill that is under discussion in the National Assembly does not net the armed forces. In the present milieu created by the media, any bid by parliament to include the judiciary or even the armed forces is going to be painted as creating deliberate friction among the institutions by the government. Sadly, the ‘senior analysts’ do not seem to understand the difference between the government and parliament.

Since the much-hyped independence of the judiciary is a sensitive matter, as is the morale of the armed forces (that could be hurt easily, even by an unsigned piece of paper — at least this is what we are told by the ISPR), we are constantly under pressure to let go of the authority of the law and of the constitution when it comes to these holy cows. What we are missing in this rut of ‘freedom of judiciary’ and the ‘morale of soldiers’ is accountability. For a parliament that has passed around a hundred bills in the last four years, only second to the parliamentary tenure of 1973-77 in legislative performance, and which has passed two constitutional amendments of highly political nature, it is a big challenge to come up with necessary and tight legislation to bring these two holy cows into the accountability net instead of letting them always malign and suppress elected legislatures with the teeth of discretionary accountability. If you let other people do it for you, they will do it to you!

For the holy cows, one could say, if you cannot stand the heat, better get out of the kitchen.

If there is one national termite that has been eating up Pakistan’s physiology and neurology, it is its purported ‘ideology’. After more than six decades of existence, Pakistan is still defending its genesis and going to-and-fro on the cause-effect tree. Graduating a ‘community’ into a ‘nation’ has not been without consequences, and is now affecting affecting its own existence.

The origin of the idea of Pakistan stands as obliterated in the subcontinent, as is Pakistan’s identity. The most prominent narrative in both countries has been that Indian partition was based on a simplistic ‘Two-Nation Theory’ (that Muslims and Hindus are two essentially distinct ‘nations’ and thus cannot live together). In India, the narrative turns negative, interpreting communalism and Muslim separatism as the raison d’etre of Pakistan. In Pakistan, it becomes the root of jingoist patriotism, hatred of India and religious fundamentalism with a burgeoning political commitment to further theocratise the state. In India, in contrast, the birth of a country based on ‘communal’ considerations continues to be unacceptable to a more secular public. The two narratives remain unchallenged even by the peaceniks; peaceniks who otherwise bear the brunt of popular ridicule for denying harsh realities while trying to find solutions in hollow emotionalism.

Both the narratives seem to simplify the complex political power-play that shaped the events leading to the partition of India.

They also miss a tragic flow of events and ideas that started much earlier than the Lahore Resolution of 1940, which is thought to be the basis for creation of Pakistan.

The ‘ideology of Pakistan’ as scripted by the state, emphasises cultural and religious difference between Hindus and Muslims, and hence their inability to live together. The Indian discourse about the genesis of Pakistan doesn’t seem to be any different. The majority of notable authors, from Kishori Lal to M J Akbar, put the blame of Pakistan’s current problems on its communal origins. The narrative misses significant political developments post 1857 that pitched the two communities against each other to the point of no return by 1940s.

For many in Pakistan, their country was born the day Ibn-e-Qasim set his foot on Indian soil. This makes a religious hero out of any invader, aggressor, trespasser and intruder if he was a Muslim. Ghauri, Ghazni, Al-Afghani and various others fall in this category, thus undermining the motherland in favour of an apostolic cause—conquest of territories as divine right. The passion is too conspicuous to miss in today’s Pakistan where terrorist groups from every nook and corner of the world can seek shelter for the cause of Islamic conquest of the world.

There is no denying the fact that any differences of religion or civilisation, however big they might be, should not have been made the basis for tearing the ‘watan’ (homeland) apart. Equally noteworthy is the fact that from Mauryas to Mughals, Indian land had had varying delimitations of different territories, loosely forming the umbrella—India. Aitzaz Ahsan, in his The Indus Saga and the Making of Pakistan gives a new meaning to the separation of the Indus and the Ganges. His thesis snatches the space from the religious discourse while attempting to ground the idea in centuries of human experience rather than vagaries of holy mission of conquest of ‘Hind’. The view probably borrowed by earlier work of REM Wheeler, Five Thousand Years of Pakistan.

The crux of Mr Ahsan’s study was the inherent difference between the Indus valley and the Ganges civilisations, which he argues, bound all the people living northwest of the Gurdaspur-Kathiwar salient, as one, irrespective of their religion. The southern side of this cultural border constitutes Mr Ahsan’s Ganges man, who considers every intruder from the south or from the central Asia as an invader rather than a hero. He identifies his Indus man more with the Central Asian culture than the Ganges civilisation—a more ‘Indian’ civilization.

The political brokering since the early twentieth century which formed the basis on which India was partitioned, had combined the tagging of political survival based on parity and ego of the Muslim elite who used Islam as a motivational factor. During these years, no political roadmap, blueprint of the state or an ideology was presented for public purview that could determine the future state and its postulates.

Keeping the confusion and ambiguity about the nature of the state he demanded, Jinnah was able to not only mobilise mass support using a religious tag, but he also succeeded in having an edge over the Indian National Congress on the negotiating table, almost every significant time after 1940. The Congress’s acceptance of Cabinet Mission Plan was, however, a blow to the politics Jinnah was playing. Without being serious—K K Aziz quotes at least two instances where Jinnah confesses that he had used the demand for a hypothetical state just as a negotiation tool—about the Pakistan proposal and being mindful of the consequences of this kind of politics, Jinnah kept on treading wherever the flow of politics took him, with of course his hand firmly placed on the control panel, which the Congress seemed to misread.

Muslims of united India had by mid-1940s become extremely confused about the nature and justification of ‘Pakistan’. Those in the Muslim minority provinces had been main wielders of the idea of ‘save Muslims’ through resolving existential concerns like greater political rights, greater shares in power-sharing formulae and increased job quotas. The ever-evolving idea of Pakistan changed the locus of separatist politics from minority to Muslim-majority provinces. Those already in the majority became incomprehensibly confused about the need for a separate country when they were already enjoying political, social and economic rights as a majority.

The newborn nation obviously could not survive this scrambled egg of an ideology and soon succumbed to political Islam.

The phenomenon of jihad as state policy, though not documented as such, amply defined itself when Pakistan decided to invade Indian Kashmir through the tribal people called ‘mujahiddin’, right under Jinnah’s nose. The Two-Nation Theory became an explosive TNT for Pakistan with the advent of sectarianism in the 1950s and the perpetual subjugation of Bengalis by the state and led to the partition once again in 1971. The ‘Islamic Republic of Pakistan’, in which religious ‘oneness’ was trumpeted disproportionately, could not keep its predominantly Muslim East Pakistan wing intact.

The folly called ideology and political practice, designed by Jinnah, have put Pakistan at the brink of social and political collapse. It is high time to correct this historical blunder adopted as ideology and revise the genesis of Pakistan from the puerile haziness of Maududi’s terminology to Wheeler and Ahsan’s vocabulary. The difference, whatever little it might have been, was in the Indus man and the Ganges man, irrespective of their religion. Indus man should look towards Indus, not the deserts of Arabia for cultural refuge. Embracing heritage and rooting it firmly in the Indus soil rather than the air from the Arabian desert is the option that could put Pakistan on its way to international respect and progress. Destruction, otherwise, is impatiently waiting for us.

This was originally published in Daily Times on Wednesday January 4, 2012 in a special supplement to mark first anniversary of Shaheed Salmaan Taseer

Governor Punjab Salmaan Taseer was killed on this day a year ago by his own guard who thought Taseer has committed blasphemy by criticising a man-made law against blasphemy. The cause Taseer chose for himself was not an easy one, and he knew it.

Aasia Bibi, a Christian woman, was sentenced to death for alleged blasphemy and was to be executed in late 2010. Taseer decided to stand up and speak for a woman from an already oppressed and persecuted community. I remember how his decision to go to jail and meet Aasia Bibi was opposed by almost everyone. Even the liberals and the human rights activists made frequent calls to him to convince him not to do it because it might pose him serious threats. Taseer could not care less. He went on and did not budge despite a dominant pro-blasphemy laws lobby within his own party. For him, most important was the foundation principle of his country and core message of equality and peace in his religion – Islam. His was a potent and loud voice, enough to frighten those for whom religion is merely a profession. It had to be muted.

All through November and December of 2010, there was a systematic heightening of flutter against Taseer in the media and on the pulpit. Amidst all this, he was killed on January 4, 2011. His death was traumatising, but more shocking was Pakistan’s reaction to it. The clergy put a seal of approval on his murder by calling him an ‘apostate’ and a ‘blasphemer’, the state acted as an epic impotent one and the media went on with insensitivity – all with impunity. Within an hour after the murder, two federal ministers came on national television and declared that had there been a blasphemer in front of them, they would have killed him then and there.

The clergy denied Taseer his right to last rites and his funeral according to Islamic tradition. The imam (who takes his monthly stipend from the government) of Badshahi Mosque refused to lead Taseer’s funeral prayers. The one who led the funeral prayers had to leave the country after getting death threats. TV programmes featured political and religious personalities who created the impression that Taseer had actually committed blasphemy and thus could be declared an apostate – the ultimate so-called justification for murder. One female TV anchor went to the extent of implicating Taseer in his presence who denied the charges of blasphemy on live TV more than a dozen times but the anchor seemed to be on a killing spree – she would go on and on with bizarre allegations and then reading out a fatwa (edict) against Taseer that ordered his killing.

Qadri, the killer of Taseer, was arrested from the place of murder but he escaped the standard operating procedure of being shot at by the rest of the squad. An initial probe revealed that he was blacklisted for VIP duty by the competent authority on account of his extreme radicalised religious views. No one knows why he was appointed with Taseer and why he was not immediately shot at, as per standard procedures. No one knows how he could keep shooting for over a minute and still not be stopped by any of his fellow guards. All we know is, Qadri went to a religious congregation and heard a cleric hurling edicts to kill Taseer. Four days after this ‘religious experience’, Qadri opened fire on someone he was appointed to protect.

After Qadri was arrested, the world saw a horrifying sight where a gathering of hundreds showered rose-petals at the killer, chanted slogans of support and lifted him on their shoulders. Not only that, his videos were released wherein he was sitting in the police station and reciting na’ats while the police officials looked on. A large group of around 800 lawyers pledged to support Qadri pro bono after Qadri gave a confessional statement. No one even from the ruling Pakistan People’s Party (PPP), the one Taseer belonged to, had the courage to call Qadri a killer and take Taseer’s name with reverence on TV channels.

I had to face the wrath of two sitting Senators when I called Taseer a shaheed (martyr), who called me a blasphemer on the floor of the House, demanding action against me on a privilege motion. Not only that, when my friends and I organised a Chehlum (prayers on the 40th day of death) for Taseer, we had to face death threats given by clerics during their congregations and rallies. Around 10 months after the murder, a brave judge – Pervez Ali Shah – sentenced Qadri for murder. You guessed right, Judge Shah had to flee the country after open death threats were hurled at him by the clerics.

After a year, Qadri is still alive and supported although convicted. The judge who convicted him will not be alive if he stays in Pakistan, the imams who take stipend from the government and who refused to lead the funeral prayers of Taseer are still where they were, the clerics who incited radicalisation are still free to continue with it, the TV anchor who instigated Taseer’s murder still comes on TV almost every evening and bags almost double her previous salary, Qadri’s supporters in the media, police station and in the ranks of the Elite Force are still sitting where they were, the country’s blasphemy laws are still in place and Aasia Bibi is still in jail.

On Taseer’s first death anniversary, Pakistan is still hostage to bigotry, obscurantism and religious radicalisation that does not only persecute religious minorities, but minority sects within the majority community. Shias are being killed every day, Ahmedis’ persecution is the order of the day, Hindu girls are routinely abducted and forcefully converted, and Christians live under constant fear.

This was originally published by Daily Times on Monday January 16, 2012 as my weekly column BAAGHI

Benazir Bhutto once said about democratic governments in Pakistan that they might be in office but have never been in power. An unbridled army has always been in the driving seat aided by the judiciary, bureaucracy and the chosen political segments produced and milked by the army itself. This wonderful support machinery gets a sustainable push through a profitably saleable clergy and an uber-powerful corporate media.

An unsigned memo bearing nothing treasonous attributed to a sitting ambassador of the country is enough for the chief of the country’s main spy agency to pack his bags and leave to ‘investigate’ about the involvement of the ambassador. The tour was not only unauthorised for it was not sanctioned by the competent authority but it was also an overstepping of the sanctioned mandate of the ISI, which is a spying agency not an investigating agency unless authorised otherwise by the prime minister. The spy chief came back with the ‘satisfactory evidence’ against the ambassador and reported to the chief of army staff (COAS). It was only after three weeks that the ‘sipah saalaar’ (as the apex court refers to the army chief) and the spy chief urged the president to take action immediately because ‘time is of the essence’. No reason was given why three weeks were lost despite being ‘of essence’? The ‘satisfactory evidence’, however, turned out to be a text-message conversation on BlackBerry between Mr Haqqani and Ijaz with no mention of the memo. So much for the ‘intelligence’ gathered and used!

Mansoor Ijaz, a personal friend of one sitting Senator and funding contributor to a US-based editor of a big Pakistani media house, broke the news about the infamous memo in an op-ed in October last year. The said media house, besides creating a noise, used another one of its editors to whisper it to Imran Khan, just before his October 30 rally in Lahore, to include the point about the memo in his speech. Meanwhile, Mian Nawaz Sharif decided to bury the hatchet with his old friends in uniform and to help them where it could also help him. He went to the court on the memo issue despite it being under parliament’s review.

After the affidavits of the ‘sipah saalaar’ and the spy chief that contradicted the chief executive under whose authority they were bound to work, it was quite clear what they wanted. And when the bench gave frequent remarks in favour of the ‘sipah saalaar’, it was more than clear what the court’s decision would be. To recall the sequence: Mansoor Ijaz’s op-ed, DG ISI starts an investigation, a US-based editor and former recipient of Ijaz’s money starts screaming about it, a media house uses Imran Khan for it, Mian Nawaz Sharif goes to court, the army hints to the court where it stands, the court takes the hint and decides accordingly, Ijaz engages Nawaz Sharif’s personal lawyer as his counsel, Ijaz demands security and trusts only the security provided by the army or the Punjab government, Ijaz puts over a dozen conditions to his appearing before the Judicial Commission, Ijaz is reportedly brought to the Chaklala airbase through a chartered plane with special arrangements of his visa to be granted at the port of entry. Now, who is fooling whom?

In all this, a media trial of Husain Haqqani was run with impunity against whom no evidence exists. Not even the ‘free judiciary’ took any note of this environment created mainly by its own order whereby Mr Haqqani was barred from travelling abroad without the court’s permission. Now the entire coterie with the men in uniform, in gowns and with microphone and pen, all can be clearly seen siding with and facilitating Ijaz who has been spewing venom against the army while maligning, defaming and vilifying Mr Haqqani who has been defending the army with all his might despite its incompetence that led to the May 2 situation. These are indeed interesting times!

The shameless highhandedness of this most powerful institution does not end here. The recently retired three-star General submitted a reply to the court whereby he, as the Defence Secretary, informed the court that the army was not working under his ministry (really?). the army chief and DG ISI presented affidavits directly to the court without the approval of the competent authority — the defence minister or the prime minister. When the prime minister drew attention to this breach of constitutional procedure and shameless refusal to act under the constitution, the de facto rulers of the country retorted by issuing a strongly worded statement threatening the civilian government with “grave consequences”

Had this been anywhere else in the world, a few heads would have surely rolled. But this is Pakistan. Here we operate differently. When the prime minister sacked the Defence Secretary — a former General, not a sitting one — all hell broke loose through the media where every B-class commentator sat as a ‘senior analyst’ and went too far in condemning the ‘unnecessary’ and ‘unlawful’ act of the prime minister that would end up in ‘friction among the institutions’. The media and some politicians have been casting unprecedented pearls of wisdom for the last few days.

When these lines were being written, news about the army chief’s meeting with the president were being relayed with reports that he has demanded that the prime minister be asked to retract his statement. Not only this but the lion from Punjab, Chief Minister Shahbaz Sharif, has reportedly repeated the same demand. What an audacity from the so-called custodians of the ‘people’s interest’ as was claimed in their petition in the Supreme Court, to demand submission of the civilian elected authority before unconstitutional transgression from the army. What a chutzpah from men with mikes and pens to vociferously demand civilian subjugation. What a shame.

One is dumbstruck to hear the chief minister Punjab asking for an ‘unconditional apology’ from the prime minister for offending the army. Probably the lion of Punjab has turned into sheep after experiencing what the army did to him and his family in 2000. But democracy is not a family business. Mr Sharif’s advisors should work overtime to stuff in his head that the army has no business to poke its bleeding nose in what is strictly a civilian domain. The world is witnessing that an apparently committed democrat, Mian sahib, is actually backstabbing the democratic setup. History is a useless teacher for us.

Asma Jahangir rightly warned Nawaz Sharif of the ramifications of his petition. “It will haunt you one day,” said a fuming Asma. This also holds true for the media hubbub against the absolutely constitutional action by the prime minister under the mandate conferred on him by the constitution. Everyone who is pushing a civilian government to bow before the arrogance of the military establishment are but traitors to the constitution. A coup will remain a coup no matter what you call it. Moralising it through the media and selfish politicians would not earn any legitimacy.

Democracy in the rest of the world is thought to be a necessity for transparent governance. When Simonides of Ceos insisted that not even gods fight against necessity, we in Pakistan vowed to prove him wrong. One wonders if it is an ultimate irony or decisive victory of Pakistan’s military establishment when it uses people to depose and discredit their own representatives.

As appeared in Daily Times on January 9, 2012 as BAAGHI, my weekly column.

Asma Jahangir took many by surprise when she refused to appear for Husain Haqqani in the memo case before the judicial commission made by the Supreme Court (SC). More surprising were her blunt statements about the judiciary privileging the ‘establishment’ (a less risky term for our all-powerful military).
The hurriedly drafted short order of December 1, 2011 by the SC raises many questions in an ordinary mind, which the judicature must address. When decades pass by without even having a hearing of extremely important petitions such as the one by Asghar Khan, the speed with which the memo case was heard by the newfound ‘free judiciary’ leaves one concerned and worried. So hasty and so factually wrong the draft of the first order was that one was pushed to think that the ‘doctrine of necessity’ has been replaced by survivor tactics. The notorious doctrine of necessity, as the newborn lordships declared soon after they got their jobs back after civil society’s movement purportedly for the independence of judiciary, had been buried for all times to come.
The theory of ‘Avagon’ seems to be operating here and the buried doctrine of necessity appears to have taken a new birth. When no one has any spine to confront the two most powerful men in this country, including the civilian government, why should the judiciary be expected to do so? When these two most powerful offices say that they think Mr Haqqani has some link with the memo, who would dare to differ? Who would dare to pass a judgement against the royal will?
When the two short orders of December 1 and 30 bore glaring spelling and factual mistakes, it embarrassed the judiciary. While getting the dictation on the drafts of both short orders, someone (the stenographer that is) did not even get the time to check the spellings of the name of General (retd) James Jones, neither was he given enough time to put the facts with accuracy. The December 1 order says Mansoor Ijaz said that the memo “was handed over to him by Husain Haqqani”. Mansoor Ijaz said no such thing. In fact, in his affidavit to the SC, he denied meeting Mr Haqqani and said he had only communicated with him electronically. The December 30 judgement says: “The text of the memo was published in the Financial Times on October 10.” It was not. Mansoor Ijaz’s op-ed was published that day — that is all. Not only that, but Blackberry Messenger (BBM) messages were repeatedly referred to as SMS in the first order. The ISI’s knowledge about electronic communication seems limited or dated.
The haste with which the honourable court heard the case and spurted out these short orders should also be used as a role model for thousands of cases that remain pending in the apex court to date. Their pendency might be attributed to their ‘non-sensitive’ nature or maybe because they do not guarantee ‘breaking news’ treatment. But in all that rush, what got compromised was the court’s own credibility. When being an appellate court, you insist on becoming an investigative agency, you must realise that this throws the judiciary at risk of becoming controversial.
We got an order for a one-man investigative forum comprising a former FIA official who eventually refused to be a part of this investigation. One wonders what changed in the preceding one month that on December 30 the same bench decided to try another forum manned by the chief justices of three higher courts. Or is it that one FIA man is equivalent to three higher court chief justices? One also wonders why the apex court did not trust the Parliamentary Committee for the preliminary probe in this case. While admitting that nothing implicates Mr Haqqani so far, he was still barred from travelling abroad without prior permission; the court failed to give similar treatment to the spy chief who is clearly implicated by name in the said BBM conversation as the one who got permission from the Arab states to subvert the constitution — a clear cut case of Article 6 of the constitution.
Alright, we understand it is difficult — impossible — to bar anyone from the mother of all institutions to travel abroad, but what stopped the honourable court from asking for the ‘investigation’ report that the spy chief claims to have prepared after his unauthorised visit to London to see Mansoor Ijaz? No one, including the chief executive of this country, appears to have seen this report, yet both the army chief and the DG ISI have been insisting on linking Mr Haqqani with the so-called ‘treasonous’ memo. The report was not even shared with the chief justice of Pakistan. To an ordinary flag-bearer of the supremacy of law and independence of judiciary, this looks a bit like contempt of the highest judicial authority.
Considering all the problems the judiciary might be having in confronting an arrogant institution and stopping it from usurping the authority of constitutional democratic government, one feels sympathetic to the current judicature. But then why must we call it a free one? Why do we not help it become independent and free of all influences, not in cosmetics but in reality? But when the judiciary drags itself so faithfully into a thoroughly political case, who could help? All we can do is, recite four Quls and stay silent like we have been since the last 64 years.

This piece appeared in Daily Times on Monday January 2, 2012 as weekly column BAAGHI

The apex court’s short judgement in the memo case last Friday left many stunned and shocked. The petitioners could neither prove any violation of fundamental rights under Article 184(3), as their petition claimed, nor could they prove former ambassador Husain Haqqani’s alleged role in the memo. Nonetheless, they were given what they wanted: an inquiry commission without due process of law, and putting Mr Haqqani on notice not to leave the country without the court’s permission.

Judicial independence remains one of the most misused and mythical terms in Pakistan. Civil society’s saving the employment of a few judges taken away by a dictator could hardly translate into a much-fantasised ‘judicial independence’. When a lower middle class woman from a minority community is left to languish in jail just because a fair decision would mean a popular uproar or maybe life threats to judges, when a judge has to flee the country after sentencing the murderer of former Governor Punjab Salmaan Taseer because the fanatic religious elements thought he was a blasphemer, when hundreds of Ahmedis are killed with impunity, and the judiciary along with the state’s law-enforcing mechanism miserably fails to provide them justice or even access to justice, the independence of the judiciary seems to be a cruel joke.

The ‘freedom of judiciary’ frenzy that engulfed us in 2007 totally blinded us to the real elements of judicial independence. We started the movement and took the first milestone as a destination. The symbolism of not accepting dictation and still surviving in the office was taken as the freedom of judiciary, while it was just the first step. Little did we realise that the basic ingredients of a free judiciary, institutional independence, individual independence, separation of powers and impartiality of judges have to be watched and ensured as part of a continuous process. While we see how touchy the lordships have been on institutional and their individual independence, little attention has been paid to the most important aspects of impartiality and separation of powers.

Before the kicking in date of the freedom of the judiciary (in 2009), judicial bias was imminent when it came to the political leadership versus the security establishment. Post-2009, we thought we got a free judiciary. Unfortunately, the judiciary after this kicking in date still seems to be under the establishment’s influence. If it is the NRO or NICL case, judicial activity is exemplary. When it is the Hudaibiya Paper Mills case, Mehran Bank case or missing persons’ cases, the freedom of judiciary puts on a burqa and goes into hiding. When Asghar Khan’s petition comes up, judicial independence takes its own ‘independent’ decision to remain quiet. One laments over this judicial ‘freedom’ when one is refused even the copy of public petition no HRC 19/96 — the petition by Asghar Khan that incriminates the security establishment.

In pre-2009 days, the judiciary used to be biased against civilian governments and under the strong influence (in some cases, under control) of the security establishment. Looking at the short order on the memo case, one wonders, what exactly has changed? The judiciary still fears standing up to the imperiousness of the military establishment against the civilian dispensation. Judgements are still given looking at the names of the petitioners. How could a bench even attempt to be impartial under moral obligation of obliging the petitioners who had won the lordships their jobs just a couple of years ago? How could the bench claim individual liberty when the all powerful spy agencies who possess dark secrets of the bench and bar are a party to the case?

As an observer of most of the proceedings on the memo case, one cannot help but see the visible partiality against the defence lawyer who was grilled by relevant and irrelevant questions while leaving aside the petitioners who chose to beat about the bush most of the time, as if knowing quite well that they cannot lose the case anyway! When media noise and populist sloganeering of political parties sway the courts, how could they be free or independent? Most amusing was the frequent pronouncements by the bench of ‘sipah salaar’ instead of a constitutional term ‘Chief of Army Staff’ (COAS), as if it will change the reality of their surrender of independence to the old traditional power centre.

Among the 20 basic principles of the independence of the judiciary adopted by the Seventh UN Congress on the Prevention of Crime and the Treatment of Offenders and endorsed by the General Assembly resolutions 40/32 and 40/146 of 1985, principle number 6 reads: “The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.” Moreover, the Universal Declaration of Human Rights enshrines the principles of equality before law as well as the presumption of innocence before proven otherwise. The memo case is a classic example of not only how basic principles of the independence of the judiciary have been violated, but also, how the international guarantees of human rights have been torn apart.

The petitioners in this case were not insisting and in fact pronounced during the proceedings time and again that they are not implicating anyone, including Mr Haqqani. But the apex court went on curbing Mr Haqqani’s fundamental right of mobility by restricting his freedom of movement just because the affidavits of their ‘sipah salaar’ and spy chief included Mr Haqqani’s name. Ironically, even the spy chief does not seem to have any evidence against Mr Haqqani, as even he ‘requested’ the court to order a probe and get forensic evidence necessary to incriminate Haqqani. Some glaring blunders in how the bench approached this case and anomalies that would come out resultantly after the short (sighted) judgement, however, cannot be ignored. The only link between the memo and Mr Haqqani is an alleged phone conversation wherein Ijaz (who boasts of his links with two dozen intelligence agencies) claims the contents of the memo were dictated to him. One wonders, how will the forensics help decide whose account of the conversation is right?

It also seems deliberate by a section of the media that Asma Jahangir argued for no inquiry, implying that Mr Haqqani might be fearing an investigation. It was clearly said time and again that the government and Mr Haqqani both demand an impartial inquiry, but under the due process of law. Should we laugh or cry when even the apex court decides to make a mockery of the due process of law? Why an inquiry commission by parliament or by the government could not be made under the Commission of Inquiry Act 1956? With three high court chief justices on the inquiry, what happens if the inquiry leads to a criminal case? Will three high courts be disqualified from hearing appeals in that criminal case? If General Pasha’s demand is a forensic inquiry, why did his and General Kayani’s statement incriminate Husain Haqqani creating a pre-disposition against him without an inquiry? And why the apex court upheld these anomalies?

Where is judicial freedom, my lords?

Postscript: Human Rights Watch, an international rights organisation that pointed towards the violation of basic rights through this judgement, is being attacked by sections of the media. Hail judicial independence!