“There is a natural aristocracy among men. The grounds of this are virtue and talents.”

— Thomas Jefferson, Founding Father and third President of the United States 

When I met Muhammad Ali, the now former chairman of the Securities and Exchange Commission of Pakistan (SECP), almost this time last year, I had no reason to like him. To me, he was the person who had disbanded the SECP Law Department, which I had put together myself more than five years ago during my time there as executive director law. Interestingly, the chairman SECP did not have much reason to like me either: I had been rather critical of his actions and had, in fact, published an article, in these very pages, roundly questioning his judgment.

By the end of my hour-long meeting, however, I realised that my opinion of him, formed as it had been in absentia, was misconceived. Whilst I found him personally gracious despite my article (in fact, we discussed it at length and he gave me his version of events), I was most struck by his determination to rethink and build the institution he had been appointed to lead rather than to use his position merely for self-aggrandisement. His plans were ambitious. He wanted to standardise operations across all SECP divisions, and he wanted me to help him do it.

To say that I was intrigued by his proposal would be an understatement. I had worked closely with two chairmen and was familiar with the kind of pressures they could be up against, both from within and without. I, therefore, had little faith in the possibility of success and also had very little time; I was due shortly to leave for London to commence a PhD in Law. My excuses, however, were no match for the chairman’s powers of persuasion. He was determined to have his standardised procedures and had decided that I was the person who could do it for him.

The next few months were a tour de force. Although I had initially been assigned to draft three manuals (for Litigation Management, Adjudication and Supervision of the SECP’s regulated sectors), we soon realised that we, in fact, needed five: the Supervision Manual was to be subdivided into Off-site Surveillance and Monitoring, Inspection and Enquiry and investigation manuals. Such was the complexity and magnitude of the task that I was ready to give up. The chairman, however, would not have it. He simply upped the support: he formed a senior management committee to review the manuals and remained personally engaged in all stages from brainstorming, to drafting, to finalisation.

On September 26, 2012, the SECP announced the formal launch of the five manuals and hailed it as a milestone in creating greater transparency and increasing market confidence in the working of the regulator. Despite the accolades being lavished on me, I was acutely aware that none of what my team and I had achieved would have been possible without the inspiration, leadership and sheer energy that the chairman had brought to the exercise. For him, the manuals were nothing short of a revolution. He had already set in motion plans to train all SECP officers along the lines prescribed in them. Within a year, he, with the support of his commissioners and senior management, would have overhauled and uplifted an entire institution.

Time, however, was not on his side. On April 12, 2013, his appointment both as chairman and as commissioner was set aside on the ground that it had been made without due process. Even on that dark day, the irony of the order was not entirely lost on me: a man who had so much faith in processes was made the scapegoat for the government’s failure to create such processes. My sense of loss and tragedy, however, is not out of compassion for the chairman, because I believe he has the strength of character and ability to rise again with renewed vigour, keener insight and sharper focus. The loss I feel is for the SECP, which has been left rudderless, midstream. I am not entirely sure if the institution, too, will rise again.

Published in The Express Tribune, May 7^th, 2013.

“No man is an island, Entire of itself …

Each man’s death diminishes me, For I am involved in mankind.

Therefore, send not to know, For whom the bell tolls, It tolls for thee.”

— John Donne, Meditations XVII

I must not have been more than seven-years-old. It was a school holiday and we were going to the beach with a group of my parents’ friends and their children. As I hovered excitedly around my mother in the kitchen while she packed lunch, I noticed her unsmiling face. Afraid that I was somehow the cause of her displeasure, I hesitantly asked what was wrong. Her response then still echoes in my mind: “We should not be going out today,” she said, “It is Ashura … it is not a time for celebration, but for contemplation.”

I must have looked at her in surprise because we were not Shias, and must have been relieved when we did go to the picnic after all. But her comment had awakened my curiosity. I remember asking a million questions as we passed a Shia procession or spotted a beautifully decorated horse on our way to the beach. I also remember my parents answering each of my questions clearly and without judgment. Perhaps, even they did not know it, but in doing so, they were imparting to me, some of my earliest lessons in tolerance, coexistence and respect for another.

Throughout my teenage years, Ashura was synonymous with my mother’s admonitions: “Don’t wear red”, “Don’t play loud music” and “Don’t disturb me during the telecast of Salam-e-Aakhir”. I had found these strictures old-fashioned and promptly ejected them from my life when I moved away. For my mother, however, Ashura remained a time for community-building (she would cook something special to send to the neighbours) and, more importantly, for trying to understand the events that had threatened to wrench the Muslim world asunder so soon after the death of the Holy Prophet (pbuh).

The significance of my mother’s attitude towards Shias only started to sink in over the last few years, as the world around me grew increasingly intolerant and only became starker as I watched with gaping horror, the footage of the Quetta and Abbas Town massacres. I realised then more fully, that in respecting Ashura, my mother was reaffirming the significance of Karbala for all Muslims irrespective of whether they were Shia or Sunni, and in doing so, she was not only making her unique and individual contribution to peace, but also training another generation — her children — to continue making this contribution.

My mother, of course, has no inkling of the public implications of her private beliefs. Her empathy for the protagonists of Karbala — whether it was Hazrat Imam Hussain (RA), Hazrat Bibi Zainab (RA) or the infant Hazrat Ali Asghar (RA) — stemmed from an appreciation of humanity rather than a reaction to the politics that flowed after the event. She felt, at a visceral level, that like her the martyrs of Karbala were ordinary people, bound to each other by ties of filial love. But she also realised that unlike her, they were special due to their close bond with her beloved Holy Prophet (pbuh), their uncompromising courage in the face of adversity and their resolve to die for their faith.

As I think about the perpetrators of Quetta and Abbas Town massacres, I wonder at the circumstances in which they may have been raised.

I wonder at the extent of the deprivation they may have suffered and the severity of the indoctrination they may have received, that has succeeded in blotting out all human feeling from their souls.

And even as I realise that their actions stem from the deep fragmentation, indifference and self-absorption that has come to characterise our society, I also realise that this is not the time for extending sympathy to them, but for standing firm in the call for strong punitive action. Failure to do so on our part will only take us one step closer to the time when they come for us.

Published in The Express Tribune, March 14^th, 2013.

Correction: An earlier version of this article mistakenly mentioned Hazrat Zainul Abedin (RA) in place of Hazrat Ali Asghar (RA). The error is regretted and has been rectified. 

Sir Mathew Hale, Chief Justice of the Kings Bench, England from 1671 to 1676, realised early in his career, that being a custodian of the law was serious business. To aid himself in the performance of his duties, he drafted eighteen resolutions to guide his thoughts, actions and demeanour as a judge and followed these religiously throughout his career. It is perhaps no surprise, therefore, that more than three centuries later, Hale continues to be remembered for his intellect, integrity and ability to apply the law ruthlessly.

Hale’s resolutions provide excellent guidance for persons interested in regulating judicial conduct. In fact, in keeping with his tradition, our very own Supreme Judicial Council framed a Code of Conduct for judges of the superior courts of Pakistan originally under the 1962 Constitution and updated it in 2009. The unstated purpose of this Code appears to be twofold: to provide guidance to judges for the proper discharge of their duties and to inform lawyers, litigants and members of the public of the standards of behaviour to expect from judges. The only question that arises is, whether this Code is adequate for modern times?

The preamble of the Code, after recognising the supremacy of God and the Constitution, affirms the commitment of the judiciary to interpret and apply the Constitution and the law, “for the maintenance of the Rule of Law over the whole range of human activities within the nation.” Whilst, in recognising and endorsing this ideal, the judiciary that it belongs to the most exalted tradition of jurists, it does not provide concrete steps that it may take to achieve this ideal, especially in the face of an executive used to unbridled power and unwilling to easily relinquish its domain.

Even more importantly, by couching its ideal conduct in exalted and nearly archaic language, the judiciary appears to have failed to appreciate the evolution in the understanding of its nature and authority and its consequent place and role in modern society. It appears still to be thinking of the theory posited by the French social commentator and political thinker Montesquieu, that “judiciary is the point of most direct confrontation between the government, law and the individual and it could therefore serve as the best barrier against lawless governmental actions”.

In subscribing to Montesquieu’s theory, the judiciary appears, however, to have overlooked an important caveat: in his model, cases were decided by judges and juries who were derived from the people, sat only for a temporary duration and rendered judgments strictly, and only, in accordance with the law. His theory, therefore, does not hold for a judiciary such as ours which is drawn primarily from the socio-economic elite, where lay juries play no role in judicial decision-making and most importantly, where the judiciary is becoming increasingly prone to exercising and expanding its discretionary powers to deliver, what it perceives to be, justice.

In these circumstances there is a distinct danger that in its zealousness to deliver its notion of justice, the judiciary may veer so far off the beaten track of law, that it finds itself constrained either to change the rules of the game in the course of litigation or simply to prioritise cases in such a manner that it not only shortchanges the litigant but also undermines the fundamental principles of legal certainty, predictability and transparency that form the cornerstone of the very rule of law that it purports to uphold.

To guard against such an eventuality, it is important for the judiciary itself to recognise not only its elite social status but also its humanity which forces it, despite all aspirations to impartiality, to allow its nature and background to influence the business of judging. And having acknowledged this, it is important for it first to accept that in these circumstances it is not, and indeed cannot be, the only guardian of the rule of law and must in fact be guarded from its own excess by parliamentary and informed public opinion and then to devise for itself an appropriate charter so that it remains worthy of the respect that it demands and indeed deserves.

Published in The Express Tribune, February 8^th, 2013.

“For last year’s words belong to last year’s language. And next year’s words await another voice. And to make an end is to make a beginning.” — TS Eliot, American Poet (1888-1965)

There is something compelling about the New Year. Is it, perhaps, the feeling of time passing without much to show for it? Or is it the seductive possibility of erasing the past and of making a new, more perfect beginning? Whatever the reasons for our fascination with it, the New Year presents an opportunity for making yet another list of ambitious resolutions to be aspired to for perhaps a month and then relegated to the bottom of the drawer, only to be revisited at the end of the year with an even greater feeling of time passing, and an even more fervent desire to start afresh.

As this year draws to a close and I face yet another possibility of repeating the same cycle, I realise that I cannot go on as before and absolutely have to make resolutions that I can adhere to. I, therefore, embark upon extensive research and soon realise that a large factor in the viability of our resolutions lies not in the inherent strength of our will power, but in our mindset at the time we make them, the manner in which we do so and in the extent of the impact these resolutions are likely to have. You may well ask what I mean by all this, so here it is: the magical recipe for adhere-able resolutions, in five easy-to-follow steps:

1) The Mindset: The first requirement is being fed up with the status quo and having an almost desperate desire for change, the kind that comes only after one has lived and suffered with a problem long enough (be it a job, personal appearance or even the rubbish heap piled on one’s street) and has tried —and failed — at all efforts to come to terms with it.

2) The Manner: Next, it is important to know what you want in clear, specific and positive terms. So, if you are fed up with your job or appearance, you must know the kind of job you want instead or the appearance you prefer and if it’s the rubbish heap that bothers you, then you must have a reasonably vivid mental picture of a clean street.

3) The Courage: It is not enough to simply want something, unless you want it badly enough. This requires painstakingly identifying any existing and potential obstacles in your path and locating within yourself (or in persons or things accessible to you) or acquiring the resources necessary to overcome these obstacles.

4) The Plan: This is the most difficult part. It requires having a realistic timetable, broken down into manageable steps. So, we need a start and a finish date and specific, identified milestones in-between. Of course, this does not mean that if the plan does not proceed perfectly it should be abandoned. A good plan always has a Plan B.

5) The Secret: Beyond all this is the mystery ingredient of service to others. Add a dimension of selflessness to the resolution and watch it succeed or make it narrow and selfish and mark its failure. So, even if it’s getting a new job or losing weight, think of how it may benefit those around you and this generosity of thought will, in itself, become the driving force in your success.

Making resolutions in this way is a far cry from the whimsical desires we generally throw out in the universe around New Year’s Eve but it is perhaps the only way in which we can make them work and in doing so, bring about a positive transformation not only in our own lives but also in the lives of those around us. And now imagine everyone making resolutions in a similar, thoughtful and well-considered manner. Imagine politicians and government officials putting the same kind of sincerity, energy and effort in their slogans and their promises and witness in your mind’s eye, the entire country starting afresh and remember, if you can imagine it, you can have it.

Wishing everyone a happy new year.

Published in The Express Tribune, December 30^th, 2012. 

Are you like me, troubled by reports of the tussle between the government and the Supreme Court over the appointment of judges to the Islamabad High Court which, in turn, has a direct impact on which judge may be elevated to the Supreme Court? Do you find yourself wondering where this apparent tug of war may be heading or if it is even appropriate or normal? Do you find yourself worrying about the implications of these actions on the future of the judiciary or even of democracy itself? If you’ve answered yes to even one of these questions, read on. The story that follows may be instructive.

The following account of Franklin Delano Roosevelt’s policies is drawn from Brian Z Tamanaha’s Law as a Means to an End: The threat to the Rule of Law. The year is 1937. Despite his promise of a “New Deal” which had won him a landslide election victory four years ago, Franklin D Roosevelt, the 32^nd president of the United States, has been unable to deliver economic prosperity to a nation struggling to recover from the Great Depression. It’s not his fault though. It’s the wretched US Supreme Court, which has derailed all his efforts by striking down key pieces of legislation designed to find solutions to the ongoing economic crisis and to mitigate its most serious social consequences.

Although Roosevelt is angry, he does not address the issue publicly. It’s election year and he does not wish to give credence to the campaign theme of his Republican counterparts that he always gets his own way, even if it comes at the cost of the Constitution. Roosevelt’s strategy pays off. Not only does he win the next election by a historic margin but also, the Democrats obtain a majority in both the House and the Senate.

Interestingly, however, Roosevelt’s victory is not only a defeat for the Republicans. It is also seen as a resounding rebuke of the Supreme Court. In the words of Donald Grier Stephenson (in his book, Campaign and the Courts: The US Supreme Court in Presidential Elections), “Although they appeared on no ballot, the Justices plainly lost the elections… Voters overwhelmingly validated what the Supreme Court had invalidated.” Emboldened by these results, within weeks of his re-election, Roosevelt announced a plan to create additional positions for any judge over the age of 70.

At first, Roosevelt justified his plan as a way of solving the backlog in the processing of cases, which he attributed to the slower working pace of the aged judges. Within a month, however, he himself stated what was increasingly becoming evident to all: by creating more seats on the Supreme Court, he would be able to appoint new and, more importantly, compliant judges, thereby effectively ending the Court’s opposition to his New Deal programme. Unfortunately for Roosevelt, however, this idea proved to be a disaster.

The plan was killed in the Senate in July 1937 but not before tarnishing Roosevelt’s reputation as a generally astute politician. He was accused of deception. The press went so far as to term his plan “a frontal attack on the Court by an overreaching dictator and a threat to the nation’s historic tradition of an independent judiciary”. Even members of his own party and the very public that he sought to benefit through his New Deal legislation, rallied against the plan on the ground that, in attempting to tamper with the Court’s institutional structure, Roosevelt had just gone too far.

The parallel between the Pakistani and American situation is evident: in both cases, the executive’s attempt to interfere in the appointment of judges is merely a bid to achieve its own ends. The tussle, however, is not abnormal, not unique to Pakistan and certainly not a catastrophe either for the judiciary or democracy but merely a process through which both are strengthened. In the American example, when it was displeased by the judiciary’s conservatism, the public elected a liberal president. Equally, however, when this same liberal president threatened the foundations of democracy, popular opinion turned against him, forcing him to retract. There were no favourites and every one was treated equally. This, then, is democracy’s ultimate revenge.

Published in The Express Tribune, December 5^th, 2012.

Any guesses as to what the parliament, the prime minister, the chief justice of Pakistan and now even the army chief have in common? Each of them not only claims to be a champion of the Rule of Law but also seems to imply that he (or at the very least, the institution he represents) is the best suited to uphold it in its true sense. There is, of course, an inherent irony in this claim because the Rule of Law, if it were to be implemented in earnest, would limit the powers of each of these state actors in ways that the chequered history of Pakistani politics has not yet witnessed. Is it, perhaps, for this reason that whilst each of them declares his respective allegiance to the Rule of Law, he hesitates to explain what it is exactly that he means?

The Rule of Law, as it is commonly understood today, has Western antecedents. Whilst the roots of the idea may be traced to Socrates, Aristotle and Plato, it was first formalised in 1215 in the Magna Carta, that great Charter of the Liberties of England and the mother, particularly, of nearly all post-colonial constitutions. Interestingly, however, the Magna Carta, rather than being the culmination of the ideological aspirations of the people of England, was in the nature of a transaction between English Lords and the incompetent and unpopular King John (the younger brother of the more illustrious Richard the Lionheart and the much reviled villain of the legend of Robin Hood): the Lords would allow the king his crown if he acted within limits and respected their privileges.

Over the next few centuries, this concept of the Rule of Law evolved to accommodate the transfer of English sovereignty from the monarch to the parliament. The laws proclaimed by this new sovereign could not claim their legitimacy from divine sanction and would only be enforceable if they represented the will and the interests of the people they purported to regulate. The changing times called for a “modern” articulation of the Rule of Law. This was provided by Dicey, the eminent 19^th century British jurist: Rule of Law meant that no man could be punished except for a violation of the law enacted in the ordinary legal manner and by the operation of the ordinary Courts of the land, everyone is equal before the ordinary law and that the decisions of ordinary courts should prescribe the limits of the domain of the law.

This theory, with its necessary permutations, became particularly relevant for countries like Pakistan and India that went constitution-shopping in the afterglow of the British Empire. Perhaps, it was the idealism of our Western-trained founding fathers or, perhaps, it was to avoid re-enactment of the carnage witnessed at our birth that we, like most post-colonial countries, chose to make the law, rather than an individual, group or religion (at least in pre-Objectives Resolution days), the primary regulator of society. In the constitutional model that followed, the parliament was entrusted with making the law, the executive with implementing it and the judiciary with ensuring that both the parliament and the executive exercised their powers within constitutional limits.

The success of this model, however, neither lies in the number of times it is reiterated nor in the identities of those who do so, but in understanding and observing its inherent limits. Is our parliament ready or equipped to enact laws that reflect the interests of the people and protect their welfare, rather than merely benefit those in power? Is our executive (and this includes the army) prepared to observe the limits prescribed by the law, rather than to assert its supremacy? Most importantly, is our judiciary and the legal profession from which it emanates, committed exclusively to “values of legality” rather than to nurturing populist aspirations? If even one of these is missing, the refrain of our commitment to the Rule of Law will remain nothing more than verbiage with which we hope to fool only our critics but also ourselves into thinking that we, too, rank amongst civilised nations of the world.

Published in The Express Tribune, November 14^th, 2012.

Unfashionable as it may be to confess, I was not immediately moved when in March 2007, General (retd) Pervez Musharraf, unceremoniously and unconstitutionally suspended Chief Justice of Pakistan (CJP) Iftikhar Muhammad Chaudhry. My inability at that time to immediately respond to the call for the independence of judiciary was not because I was a Musharraf sympathiser, but because I was not entirely convinced that the judiciary that had supported and guided Musharraf to power in the first place was truly independent and had the right to claim my support.

I had found it difficult to ignore in those days, that when in 1999, Musharraf had ousted the democratically elected government of Mian Nawaz Sharif, most of these judges (the CJP being one of them), had not only endorsed and legitimised the move —by continuing in office, indeed taking oath on the Provisional Constitutional Order (PCO) and by a giving full bench judgment in support of Musharraf in the case of Zafar Ali Shah vs Pervez Musharraf 2000 SCMR 1137 — but had also, and far more damningly, invoked the doctrine of necessity to grant him the power, albeit limited, to amend the Constitution.

Of course, like everyone else in Pakistan, the judiciary, too, had justifications: in their judgment in the Zafar Ali Shah case, they claimed that they had taken the oath on the PCO merely to ‘uphold’ the judicial organ of the state and had supported the army chief because he was the holder of a Constitutional post and could not be summarily removed, even by a prime minister. Not many were fooled: it was commonly believed, even by those who benefited from the compromise, that the judiciary had preferred expediency over the rule of law and in doing so had driven yet another nail in the coffin of Pakistan’s constitutional principles.

Expediency, however, did not seem to be an option, when seven years later, the same Musharraf who had cried high treason when he was removed from office without due process, removed the CJP, also holder of a constitutional office, in exactly the same manner. Instead of accepting the decision against him and fading into a quiet retirement, as may have been pragmatic to do, the CJP chose to take a stand, not for his personal glory but for the sanctity of his office. The judiciary, and indeed the entire legal community, seemed only to have been waiting for a leader. They rallied around the CJP and did not rest until he was finally restored to office, believing somewhat naively perhaps, that they were ushering in a new era of the supremacy, indeed glory, of justice.

Although this naive belief was challenged many a time in the last three years, when questions were raised about the wisdom of judicial activism, the judiciary’s preference for taking up high profile political cases and of nurturing the media as an important pillar of state, the events of the last few weeks, seem to absolve the judiciary, at least in the eyes of legal purists. As Mr Gilani’s conviction, Arsalan and Malik Riaz’s scandal and Mr Gilani’s ultimate disqualification unfolded in quick succession, the judiciary, eschewing all exits to the doubtful road to practicality, followed instead the inherent logic of the law, and brought the legal proceedings before them, to their natural conclusion.

Legally sound, independent and brave as these decisions may be, this places a terrible responsibility not only on the CJP but also on the entire judiciary. From this moment onwards all actions of the judiciary will come under an even closer scrutiny. The conduct of judges, both public and private, as well as their judgments are likely to be examined minutely. The public, fuelled by the discontent of certain political parties, is likely to demand the same delicate balance between activism and restraint, the same commitment to due process, and the same across the board accountability that the judiciary appears to have meted out to others. It is in achieving this fine equilibrium and maintaining it consistently, that the judiciary will not only earn and uphold the respect it deserves, but also play its true role in the impartial progress of our society.

Published in The Express Tribune, June 22^nd, 2012.

“Come on, India’s not as bad as all that. Other side of the earth, if you like, but we stick to the same old moon.” — EM Forster, A Passage to India

“What do you think of opening up trade with India?” I was asked casually earlier this week. Even as I collected my thoughts to give a coherent and balanced answer to this evidently loaded question, the conversation moved on to the eternal dilemma of India’s designs against Pakistan’s sovereignty which had to be balanced with Pakistan’s need to peacefully coexist with its neighbours in order to realise its own potential. Even though I was spared the immediate necessity of answering, the question remained in my mind and forced me to consider not only my position on the issue of trade but also my general feelings towards India.

When had I first become aware of India? Had I realised its existence when my first Holy Quran teacher had explained, in response to my precocious questioning, that the word kafir meant Hindu? Or was it when my grandfather shared with us his stories of Partition in a voice hushed with nostalgia and unmistakable pain? Or was it when my mother sang old Indian songs rather than lullabies to help us sleep? The diverse nature of my recollections merely confirmed my suspicion that whatever its origin, my relationship with India was long-standing, intricate and an integral part of my earliest psychological makeup.

I seem to recall being told as a child that India was the ‘other’ that had threatened our existence and our Muslim values and, therefore, it was in our best interest to have parted from it. I failed to understand, however, that if India was indeed so alien, why did I find myself admiring the Taj Mahal, the Red Fort and the Jama Masjid as a 10-year-old child visiting India for the first time, and believing them to be my very own and rightful inheritance? Why did I find so much in common with the Indians I met then and later at college? Why did old Indian melodies and songs speak to my heart above all other music and poetry?

It was at college that I realised that my problem was not with India after all but with the all-encompassing and to me, agenda-driven affection that certain Indians threatened to engulf me with. I resented being told that Partition was a tragedy and a mistake because that sentiment challenged my legitimacy as a Pakistani. However, I also quickly realised that to feel resentment at the expression of such sentiments was a sign of personal weakness and insecurity. If I were confident in myself, if I understood what it meant to be a Pakistani and could define myself completely, without any reference to India, then these words would cease to threaten me.

When I scouted around for a better understanding of what it may mean to be a Pakistani, I was told that our adherence to Islam was our hallmark. The assertion first seemed flawed when I thought of all the countless non-Muslim Pakistanis — Christians, Parsis and Hindus — that I had known throughout my life and later, the Baloch, Pashtuns, Sindhis and Mohajirs, all Muslims, took turns to passionately demand separate homelands on the ground that they were separate nations. Clearly, hiding behind the banner of Islam was not sufficient to hold together the diverse strands of our Pakistani identity.

In my mind, it is imperative for the purpose of healing our national wounds to make peace with our past even if it lies across the border and to allow culture, as well as religion, to commingle into an identity, which is at once unique and authentic to our reality. Does this mean that I support the opening up of trade with India? Yes. Because I feel that trade, rather than political posturing, will allow travel and individual interaction, which in turn will become an important source of healing. And for the sceptics who may still worry about Indian dominance, I have only to say, if we know and are proud of who we are, we need not be afraid of becoming someone else.

Published in The Express Tribune, May 23^rd, 2012.

What do Isreali Jews, black South Africans, proverbial South Asian mothers-in-law and the PPP, have in common? Do I hear a resounding  “Nothing”? Or are there some of you who realise instantly that these ostensibly disparate groups share with one another, an acute sense of victimhood that has become a defining feature of their identity and discourse and the motivation behind their actions. Interestingly, however, whilst for the Israeli Jews, black South Africans and even the South Asian mothers-in-law, this sense of victimhood is based on reality, for the PPP, its existence is largely imaginary.

Let’s examine this more closely: Israeli Jews are inheritors of discrimination as old as Christianity, primarily because the Christians believed that had it not been for the Jews, Christ would not have died on the cross. During the Holocaust years, this discrimination exploded into a full-scale genocide, which only exacerbated Jewish insecurity. The black South Africans had, until very recently, suffered under apartheid, which not only classified society along racial lines but also relegated blacks to its lowest rungs. As for the South Asian mother-in-law, she is a creature brewed in the cauldron of age-old South Asian tradition, which typically allowed women very limited and disguised power, and that too, within the confines of the home.

However, unlike each of these underdogs, the PPP in its early years rode in on the wave of the brilliance and charisma of Zulfikar Ali Bhutto and found its way, very quickly, into the halls of power, albeit not before ZAB had served as a minister in a martial law regime and not without further interesting arrangements, which gave ZAB the dubious distinction of being Pakistan’s first Civilian Martial Law Administrator whilst also being its first civilian president. The PPP’s star was once again ascendant under the leadership of Benazir Bhutto who occupied the office of the prime minister twice and has seen yet another resurgence under President Asif Ali Zardari’s present government.

The purpose of recounting the history of the PPP’s glory days rather than bemoaning the tragic deaths of ZAB and Benazir, is not to discount either these losses or the role of the PPP in mobilising democracy at the grass roots in Pakistan. It is rather to question its blanket claims to martyrdom, and to recognise that its path has been as much of expediency and compromise as it may have been of sacrifice. It is also to recall that the PPP’s most recent incarnation has only been made possible due to the NRO, which was in truth, nothing more than a bargain between a military dictator keen to perpetuate his authority and a political party equally eager to return to centre stage.

Despite all this, the sheer stubbornness of the PPP’s response to the Supreme Court’s decision in the contempt proceedings, its determination to make a mockery of the rule of law that it likes to pay lip service to, and its insistence on casting itself in the role of the victim rather than the aggressor, reminds me of the well-established psychological theory, that victims of abuse usually become its worst perpetrators the moment they find themselves in positions of authority. This theory may, in fact, be one underlying explanation of the persecution of the Palestinians at the hands of Israeli Jews, the chauvinism of the predominantly black African National Congress towards South Africa’s minority whites and the treatment of the unwitting daughter-in-law at the hands of the stereotypical mother-in-law.

The only problem in our scenario is, however, that given the PPP’s reality, its assumed victimhood is inappropriate, if not downright absurd. The PPP is not a victim. It is a political party that once stood for principles, which resounded with the people of this country, and that took risks and made expedient compromises to ensure that it remained a player in Pakistan’s political arena. Over time, however, the party appears to have lost its way. Instead of safeguarding the rights of the common man, it now appears to protect the selfish interests of its self-styled leaders, who because they lack the talent or the vision to inspire people — as indeed ZAB had — have decided simply to manipulate and hoodwink them. They may do well to remember, however, that all personas are ultimately shattered and victims are at best pitied, never admired or respected.

Published in The Express Tribune, May 9^th, 2012.

I spent most of last weekend on my feet, working hard in my limited capacity, for the success of the International Judicial Conference held at Islamabad. Of course, I am happy to report that it was indeed a success — at least, by the standards with which we in Pakistan measure success: there was a smattering of distinguished foreign guests (justifying the ambitious title of the Conference), local participation was extensive and multidisciplinary and, most importantly, the food was good. Despite all this, however, even as I basked in the adrenalin rush that inevitably follows such an event, a voice inside me asked, rather unhelpfully: Has the Conference made any difference to the quality of justice in our country? A valid question, no doubt, but one to which there is no easy answer.

In attempting to unravel this issue, we may accept as a starting point, that justice means different things to different people: whilst for some, justice may lie in exacting the proverbial pound of flesh, for others it may be imbued with the quality of mercy. However, this difference of opinion is only properly permissible for a layman and not for members of the legal community who, whether they are judges or lawyers, understand and appreciate — to borrow a phrase from Oliver Wendell Holmes Junior, Associate Justice of the Supreme Court of the United States from 1902 to 1932 — that our courts “are courts of law and not courts of justice” and the only justice they can render, lies not as much in attaining a preferred outcome, but rather in following a transparent, fair and predictable process.

Justice then, in our court-based, adversarial legal system, may only be achieved when each party to a case, irrespective of whether it is weak or strong, rich or poor, educated or not, is allowed a reasonable opportunity to present its case, preferably through a person trained in legal nuances and furthermore, is assured that his case will be decided according to the evidence and the law, rather than the preferences of the judge. And to achieve justice of this quality, it is imperative that both lawyers and judges are properly educated, not only in the law, but also in the skills of their craft, and act strictly within the limits of their respective spheres; that the judiciary is independent and free from influence and lawyers perform their duties to the highest ethical standards and finally, and perhaps most importantly, that there is trust between the two.

If this then is the definition of justice, one may not be entirely wrong in arriving at the conclusion that the Conference dealt with justice only incidentally, if at all. The themes that had interested the Conference organisers were outward looking. They ranged from the role of judiciary in promoting a culture of tolerance to its role in ensuring good governance, and encompassed issues as diverse as terrorism and money laundering to transnational parental child abduction. The stark absence of a topic which would explore the relationship between the bench and bar, especially as it has evolved in the aftermath of the 2007 lawyers’ movement, suggested that the judiciary, either took the existence of this relationship for granted, or that it deliberately chose to ignore it even in the wake of reports of increasing mistrust, indeed of instances of violence, between the two.

At this stage in my soliloquy, the voice in my head makes itself heard again: if the Conference did not improve the quality of justice, are we justified in claiming that it was a success? This time, however, I know the answer: the Conference was not a success because of what was discussed in its formal sessions but because it was held at all despite the evident tension between the judiciary and the government; because the state machinery contributed to its smooth progress; because it was attended by lawyers from even the most far-flung areas and because it provided lawyers and judges an opportunity to openly engage on the sidelines and without reserve. And it is in this that there is real hope for independence of the judiciary, for rule of law, and ultimately for justice.

Published in The Express Tribune, April 26^th, 2012.