What we owe to our Shazias

February 2nd, 2010

The death of 12-year-old Shazia has been widely condemned in the media as an example of the harsh treatment to which domestic servants are so often subjected in Pakistan. As part of the low-income class, household servants cannot do anything about their maltreatment by their employers. As economic historian Robert Heilbroner noted, power follows money in modern society, and thus servants, with their meagre incomes, find themselves at the receiving end in the form of violence by their employers. The fact that this ill-treatment is an abomination is hardly debatable, but there is a phenomenon at play which is hardly recognised: servants subsidise the very lives of their employers.

The first thing to realise is that household servants assist practically all day-to-day activities of the people who are able to afford their services, especially the rich. The maid, the cook, the guard and the driver together often perform the very basic tasks of a household: the home’s cleaning, washing and ironing of clothes, cooking, serving of food, protection of the house and enabling the transport of members of the household from place to place.

I, for example, almost never have to worry about washing and ironing my clothes, for the housemaids do it. I also don’t have to spend time on other personal chores, such as the cleaning of my room. When I leave home, I hardly ever have to deal with the traffic of Lahore. I commute to and from my university every day, making what I think is good use of my daily time, thanks, of course, to the services of the household driver. Time that would have otherwise gone to these tasks goes to activities which contribute, in my opinion, to the furthering of my education. Relieved of the responsibility of performing these tasks, I can be better focused on what may be called my “professional” identity, that of a student.

Servants thus may contribute to the better performance of a CEO, a judge or a doctor, making these people’s work easier by freeing up their time which would be taken up by household activities. In some cases, the servants may be attached to households for such long periods of time that they may even be trusted with the keys of the house in the absence of the homeowner. In such pessimistic and troubling times, such servants are a blessing.

Having seen how servants contribute to a household, let us see what they get in return.

First, they get a miserable income which hardly helps them make ends meet, let alone educate their children — if they aren’t children themselves. Second, abuse is widespread, the verbal kind being more frequent than the physical. Of course, one cannot deny the existence of households which treat their servants well — providing them with the same food which is cooked for everyone else in the house, helping out when a member of the servant’s family is sick or the village home needs repairing, when money is needed for a family wedding — and where verbal and physical abuse is absent.

But these are exceptions. It is in this suffering where lies the subsidisation of the lives of the better-off and rich by the conditions of the poor. People do not pay the full cost of the services their servants provide: what the servants get in return for their services is, more often than not, humiliating treatment and the hardships accompanying the pathetic wages they are given.

When a government provides a subsidy, it must make up for the expenditure; that is, in a sense it must be repaid by the consumer in the form of a tax or the revoking of a subsidy. How is the subsidy provided by the servants to be repaid? We can talk about raising incomes as a starting point, but we must not stop there. To do that would mean that we have put a monetary price on the misery of the poor and that we are content with its continued existence in exchange for a monetary reward.

What should be done is to begin with the provision of the following: greater monetary compensation, along with the assurance of their physical safety, dignity and respect and — last but certainly not least — the recognition that they truly serve the household. Secondly, what is it to which those with money have access and the poor don’t? That is education. Thus, it is their responsibility to make sure that the subsidy their lives have been receiving from the poor for years and years is repaid qualitatively through the ushering in of a social-economic environment in which the servants of households are given dignity and respect as well as a chance of educating themselves. It is only they who can do this, for it is they who have access to education as well as socio-political power which follows their money. No repayment could be greater than this.

The term “servant” is considered by many to be disparaging. I don’t agree. They do truly serve as they subsidise the very lives of the better off and the rich, despite their low-incomes, misery, toleration of suffering and patience. For such service they must be repaid, and it is about time they started getting their due.

Source:http://www.thenews.com.pk, Tuesday, February 02, 2010
written by Daniyal Khan who is a LUMS student. Email: daniyalk@gmail.com

Did you like this? If so, please bookmark it,
tell a friend
about it, and subscribe to the blog RSS feed.

Tags:
Posted in Justice in Pakistan | No Comments »

Secrets behind closed doors

January 28th, 2010

The case of Shazia death by the hands of a lawyer covered by media is a good sign for humanity which is disgraced in Pakistan especially by those who deal in law and justice either they are from administration like police or courts related persons. Mr. Naeem, the accused one is lawyer, know the law but at the end how he used it or will use it in future to protect himself and his other partners is a blur in the name of justice. The most shameful thing is that supreme court bar to protect their colleague or friend, to divert the attention of media from this case again announced to start a campaign infavour of Chief Justice but was delayed as a result of some opponents.

What other people say, we have re-produced a story published in a local English newspaper as following:
“The story of the abuse and murder of a 12-year-old maid servant, working at the home of a lawyer in the Defence area of Lahore, is unusual simply because it has attracted widespread media coverage – and consequently drawn the attention of the top leadership.

But surely these persons cannot be totally oblivious to the fact that harassment, molestation and occasional murder are a routine part of the life of many domestic servants. This is a documented reality. According to the Alliance Against Sexual Harassment (AASHA), comprising a group of organisations working against the harassment of women in the workplace, 91 per cent of female domestic workers say they have suffered sexual abuse at one point or another. Those like the unfortunate Shazia, who are young and belong to a minority community, are especially vulnerable.

Each year, there are indeed complaints of abuse from other maids. Few are able to persuade anyone to hear them. A few months ago, a group of wealthy women in Lahore ‘helped’ a young girl who complained she was being ‘rented out’ almost each night to friends of her employer, in exchange for money paid to him, to find other employment. What they did not do was initiate any action against the man and his wife – who, it would appear, abetted him. It is this immunity from the law that allows such crime to continue. The failure of police to act – as in the case of Shazia – is after all not unusual. The powerful rarely face punishment.

There are many examples of this. Some years ago, in Mozang, a four-year-old boy, employed as kitchen help, was beaten to death by the woman for whom he worked. His crime: he had taken too long to pay a visit to the bathroom – located away from the house.

The child’s body was then dumped on a garbage heap by his employer and her husband. Here, media coverage of the matter ends. We do not know if the couple – parents themselves – ended up in police custody or if they were put on trial. It is thought they may have escaped. The parents of the boy may have accepted a bribe. After a brief media flurry, the trail runs entirely cold. The headlines grow smaller and then fade away. This of course is a fact in other cases too. It explains why such crimes continue; why those responsible remain confident they can get away with rape or murder.

The president has, in the case of Shazia, offered up Rs5 lakh to her family as ‘compensation’. This then is the price of her life. But what we really need is some kind of regulatory set-up that can offer protection to domestic workers. In the first place, the employment of children, least able to protect themselves, needs to be stopped. There are tens of thousands such children who perform the mundane chores of households, sometimes in exchange for little more than a single meal a day. Cases are documented each year of servants – children and adults alike – who are accused of theft and then denied a wage to ‘recover’ the loss. An employee at a fast food restaurant where birthday parties for the offspring of the elite are regularly hosted says he feels compelled to smuggle food to the small maids who watch their charges eat, some saying they survive only on kitchen scraps. He has seen scars inflicted by beating on scrawny arms. There are maids who regularly work a day that lasts 16 hours or even more, and who suffer beatings, verbal abuse and worse. The events that take place behind the doors of grand households are after all hidden from the public. The lack of laws to protect domestic workers leaves them without any cover at all.

This is of course not unique to Pakistan. The abuse of domestic workers has frequently been reported from the Middle East, India and indeed other nations. But it is true too that in other places, unions of domestic servants have been created and legislation written up defining their rights as well as their responsibilities. We need to move towards this. A single case, and action on it, in the longer run, changes nothing at all. What is essential is that it be used as a lever to put laws in place and initiate a wider process of reform, backed by the assemblies.

But the fact is that even laws on their own are quite insufficient. The failures to implement them are after all widespread. Nevertheless they represent an important step forward. Our government must, however, also assess what else is wrong. Poverty is frequently cited as an explanation or justification for child labour.

This is wrong. Indeed, work by children, who often receive next to nothing as wages, perpetuates poverty within families. It can also not be used as an excuse to push children into the workforce. Their lack of schooling drives on the cycle of deprivation. The increasing discrimination against non-Muslims too needs to be taken up as a priority. It is inflicting terrible havoc on society and threatens to cause still more harm.

These are issues that now need to be looked into. The intense media focus on the latest murder has paid dividends. But the fact is it cannot last. We saw this too in the recent case involving the death of a small girl at a hospital. Today, laws to regulate medical care in the private sector are being resisted. With the TV cameras searching out other topics, the pressure has shifted.

There are lessons here for the media. While its attention span is necessarily short in a world of rapidly changing news, perhaps there is some need for means to be found to lengthen this and to conduct campaigns that extend over time, moving towards ushering in real change.

But perhaps, more realistically speaking, this is a job for the government. The murder of Shazia has highlighted the inability of the state to protect those who most need its support. It is these issues that need to be taken up by leaders. The gaze of the government must then look beyond the child who died in such terrible circumstances in Defence and find ways of preventing other little girls from meeting the same fate.”

Source:http://www.thenews.com.pk, Thursday, January 28, 2010
Kamila Hyat writer is a freelance columnist and former newspaper editor
Email: kamilahyat@hotmail.com

Did you like this? If so, please bookmark it,
tell a friend
about it, and subscribe to the blog RSS feed.

Tags: , , ,
Posted in Friend of Pakistan, Justice in Pakistan, Role of Politicians in Pakistan | No Comments »

A sedulous ruling

January 25th, 2010

If Asif Zardari has no convictions pending against him the day he qualified as candidate for president, he can sleep much better after the NRO judgment. And if he can nurture the ability to seek the counsel of sensible, forthright individuals, the political temperature can be brought down to sustainable limits and the country will not need to suffer his imprudent public outbursts.

In 1958 the Supreme Court of Pakistan held that if a superstructure is built on a rickety foundation, the entire structure of such rights comes tumbling down in the event that the foundation is found illegal. Most legal minds agree that if Asif Zardari was not qualified to be a candidate for president in the absence of the NRO, he could be found ineligible to have become president and consequently stay president after the court declared the NRO void ab initio. Zardari’s team has, however, consistently claimed that there were no convictions against him that were quashed due to the NRO. If this is indeed the factual position, Asif Zardari is home safe as far as the law is concerned. In the NRO ruling the court has dilated on Section 31-A of the NAB Ordinance that prescribes punishment for absconders.

The court has held that a conviction for being an absconder must be reversed separately in appeal, and does not automatically go away even if the conviction for the main charge has been suspended or reversed. During the NRO Case hearings, lawyer A K Dogar had pointed out to the court (on the basis of a news report) that while the main conviction of Zardari in the BMW case had been suspended, his conviction in the same case for being an absconder still stood. The court has now clarified the legal position. Whether or not such elaboration of the law adversely affects Asif Zardari would depend on his individual circumstances. If his lawyers were negligent enough not to appeal his conviction as absconder under Section 31-A of the NAB Ordinance, he could be in trouble.

Other than this, there could only be three judicial mechanisms to push Asif Zardari out of the Presidency and the court has shut such windows through the NRO Case and the PCO Judges Case.

One, Article 62 of the Constitution could be interpreted in such an expansive manner that the candidature of any parliamentarian (and also the president) could be challenged for being dishonest, even in the absence of an order of conviction passed by the tribunal or court adjudicating the charges of corruption. In this regard, the court has reiterated its past interpretation of Article 62 and confirmed that mere allegations of corruption are not sufficient to question the eligibility of a parliamentarian under Article 62.

Two, the court can hold that Article 248 (that affords the president immunity against civil and criminal prosecution when in office) is against the principles of equality and social justice as enunciated by Islam and applicable under Article 2-A. And thereafter, applying the test of repugnancy, strike or water down the immunity afforded to the president under Article 248.

But in the NRO Case addressing the issue of any perceived conflict between Article 2-A and Article 45 (the president’s authority to grant pardon), the court held that it doesn’t have the power to apply the text of repugnancy and strike down any part of the Constitution for being in conflict with Article 2-A. This has clarified that the Supreme Court is in no mood to dress up the Constitution with creative interpretations that could produce immediate political consequences for Asif Zardari.

And, three, in the NRO Case as well as the PCO Judges Case the apex court has expounded its doctrine of constitutionalism, democracy and limited powers. The court has held that in interpreting and applying the explicit provisions of the Constitution it will bear in mind the objects of our fundamental law to represent the collective aspirations of the people and protecting their interests. But that as a creature of the Constitution it can only exercise such authority as vested in it by this fundamental law and therefore has no power to venture outside the framework of the Constitution even on grounds of saving the interests of the people of Pakistan.

The import of this doctrine of unbending fidelity to the text and spirit of the Constitution is that the present Supreme Court has expressed its inability to “validate” any extra-constitutional or praetorian initiatives. This, together with the fact that the court has not reinterpreted the meaning of Articles 41, 47, 62, 63 and 248 (that determine the qualifications, eligibility, protection against prosecution and mechanism for removal of the president), the claims that the court has issued a person-specific judgment is incomprehensible.

What the court has done in elaborating the conscience and morality of the Constitution is highlight the universal principles of honesty, integrity, equality and justice that are reflective of our cultural values and enshrined in our fundamental law. The fact that upholding such principles impacts disproportionately some individuals who have not abided by such principles in the past does not make the ruling person-specific.

Further, the fact that our history is ridden with ugly precedents and our elites have been able to flout the law and get away with it is a poor argument for continuing to condone illegality. The muffled allegations that the court is acting on behest of the establishment or the army to cut Zardari down to size are partly rooted in our chronic cynicism as a society and zealous adherence to the proverb that “the more things change, the more they stay the same.”

The generation that grew up in an independent Pakistan, saw it cut into half and is presently at the country’s helm, seems to suffer from an utter lack of faith in its own ability to change. This sense of imminent doom, together with sustained political disempowerment due to repeated military interference in politics, seems to have engendered a now incurable syndrome of psychological disempowerment.

This thinking throws to doubt the very concept of individual autonomy — i.e., an individual can actually do what he or she thinks is right without being someone else’s underling. Consequently, even when the apex court roots its decisions in the unambiguous principles and provisions of our Constitution, we see such decisions as tools for implementing a conspiratorial scheme against the civilian government.

The argument being made is not that the transition to effective democracy and civilian control of the military will come easily, as the military undoubtedly remains the most powerful institution within the state. But that we must suspend the disbelief that the judges of the superior courts, after putting up a fierce resistance to uphold independence of the judiciary and the letter of the Constitution, will suddenly stoop and begin to act on the behest of interventionists within the military.

The problem with our cynical mindset notwithstanding, the flawed perception that the judiciary and the military are working in alliance is also nourished by deficiencies in the PCO Judges and the NRO rulings, as also pointed out by Sardar Raza Khan in his separate note. Gen Musharraf authored the NRO, and yet we find no focus in the detailed judgement on how the author must be held accountable for his mala-fide acts, even though it instructs the government to proceed against other individuals who acted in contravention of the law, such as Malik Mohammad Qayyum. Such propensity of the court to ignore the individual who molested the Constitution was evident even in the PCO Judges’ Case. While the court held the oath-taking judges accountable, it passed no instructions on how to bring the oath-giver to book.

There are many amongst us who warn that across-the-board application of constitutional principles will bring the entire house down. But had the country heeded such advice we would still be living with an Abdul Hameed Dogar court. The Supreme Court must bear in mind that notwithstanding “ground realities” and other extraneous considerations, selective application of principle is antithetical to rule of law.

(Concluded)
Http://www.thenews.com.pk, Monday, January 25, 2010
The writer “Babar Sattar” is a lawyer based in Islamabad.
Email: sattar@post.harvard.edu

Did you like this? If so, please bookmark it,
tell a friend
about it, and subscribe to the blog RSS feed.

Tags:
Posted in Justice in Pakistan, Pervaiz Musharaf, Asif Zardari and Nawaz Sharif, A triangle of Past, Present and Futures., Role of Iftikhar Chaudhry as Chief Justice and ...? | No Comments »

Conscience of the constitution of Pakistan

January 22nd, 2010

The National Reconciliation Ordinance (NRO) was a dead duck the moment the National Assembly refused to have anything to do with it. If it still needed another shot in the head, a division bench of the Supreme Court (SC) could have done the needful, no extraordinary issue of constitutional theory being involved in the outcome.

But we have not been that lucky, all 17 of their SC lordships hearing the NRO case whose detailed judgment — written by My Lord the Chief Justice — is now out, and about which the shrillest comments are coming from the already committed or the already biased.

This judgment is not for the fainthearted because it doesn’t make for easy reading. This is not syntax at the point of a rapier; more a sledgehammer driving home its many obvious points.

Discrimination — favouring a certain classification of people, to the exclusion of others — was enough of a touchstone by which to fell the NRO and make short work of it. But in its wisdom — and I readily confess there may be reasons for doing so not readily accessible to untrained legal minds like mine — the SC chose to traverse a longer route, to arrive at much the same conclusion.

In so doing the SC has pointed the way, in part, to a quaint realm of thought. It says the Constitution has a conscience which nothing must violate, a point of view likely to sound strange to the many cynics inhabiting the Republic who are convinced that anything by way of both innocence and conscience the 1973 Constitution lost long ago at the hands of such conscience-keepers as Gen Ziaul Haq.

Zia’s greatest collaborators were superior judges, as were Pervez Musharraf’s when he seized power many years later. It is a sobering thought that all the 17 pillars of wisdom now in the SC took oath under Musharraf’s Provisional Constitutional Order (PCO) in 2000. The Constitution may have had a conscience even then but it wasn’t strong enough to deter baptism in the waters of the PCO.

Nor was this all. Just as earlier coups had been validated by the superior judiciary, Musharraf’s coup was validated too in 2000 in the famous Zafar Ali Shah case. Among the luminaries on that bench headed by Chief Justice Irshad Hasan Khan was an up and coming judge by the name of Iftikhar Chaudhry.

By which I do not mean to say that people remain always the same and do not change. They change all the time. Some of us as we grow old become worse, leaving the idealism of youth behind. Some of us grow better, leaving behind the thoughtlessness or follies of our younger days. But the least that should come with the remembrance of past omissions or mistakes is a measure of humility.

How well has Ghalib put it: Mein ne Majnoon pe lark pan mein Asad, Sang uthaya tau sar yaad aya. When I thought of casting a stone at Majnoon, I thought of my own head — meaning my own follies.

In his note to the detailed judgment written by CJ Chaudhry, Justice Jawwad Khawaja writes as follows: “At the very outset it must be said, without sounding extravagant, that the past three years in the history of Pakistan have been momentous, and can be accorded the same historical significance as the events of 1947 when the country was created and those of 1971 when it was dismembered.” He goes on to say: “It is with this sense of the nation’s past that we find ourselves called upon to understand and play the role envisaged for the Supreme Court by the Constitution.”

Without sounding extravagant? There’s a touch of hubris about this declaration which almost amounts to saying that caught as we are in the midst of great events, it is history which calls upon us to make great decisions. A judiciary best fulfils its functions if it is faithful to the letter of the law and if it is honest in interpreting it; and if it doesn’t play second fiddle to dictators and doesn’t bend the law to suit their purposes. A sense of historical mission, which is what is suggested by Justice Khawaja’s observation, is best left to the people and their chosen representatives.

And if it is history we should consider, it must be history in its entirety and not slices of history susceptible to selective interpretation. Nowhere is the judgment’s take on recent history more evident, and perhaps more startling, than in its analysis of the meaning of the word ‘reconciliation’. It says that the NRO was a deal between two individuals — Pervez Musharraf and Benazir Bhutto — for their personal objectives.

“We are of the opinion,” says the judgment, “that the NRO was not promulgated for ‘national reconciliation’ but for achieving the objectives which absolutely have no nexus with the (sic) ‘national reconciliation’ because the nation of Pakistan, as a whole, has not derived any benefit from the same.”

In attesting to the subjective nature of the NRO, the judgment quotes this from Benazir Bhutto’s book, Reconciliation: Islam, Democracy and the West: “The talks with Musharraf remained erratic. He didn’t want us resigning from the assemblies when he sought re-election. There wouldn’t be much difference in his winning whether we boycotted or contested, but we used this to press him to retire as army chief. He cited judicial difficulties. It was a harrowing period. After many, many late-night calls, he passed a National Reconciliation Order, rather than lift the ban on a twice-elected prime minister seeking office a third time, which he said he would do later.”

Is this an individual talking or a major political leader discussing the when and how of a democratic transition? The keystone, the flagstone, of Musharraf’s rule was his position as army chief. And here when Benazir Bhutto is negotiating the removal of Musharraf’s uniform — in which she eventually succeeded — their lordships are of the opinion that this deal between the two was just confined to their two selves and had no wider significance whatsoever.

This is a selective reading of the past three years which in Justice Khawaja’s estimation have been as momentous as anything in our past. There were many things which came together to pave the way for the transition from Musharraf to the present order. Different chapters were written by different authors.

The lawyers’ movement wrote one chapter, arguably the most important in weakening the mainstays of the Musharraf dispensation. CJ Iftikhar Chaudhry and the judges who stood with him wrote another chapter when they defied Musharraf. This was a first in Pakistani history. Judges had been collaborators of military strongmen. They had never stood up to them before, at least not in this manner.

There was a third chapter written by Benazir Bhutto and, much as we may dislike the notion, by our American friends when in tandem they prevailed upon Musharraf to shed his uniform. The judiciary and the lawyers’ movement had an indirect hand in this in that they had created the climate in which Musharraf had become an enfeebled ruler. But this should not detract from Benazir Bhutto’s role who played her cards shrewdly and engaged with Musharraf in a manner which persuaded him to hand over the army baton to a successor.

The fourth chapter was written in Benazir Bhutto’s blood when she was assassinated in Liaquat Bagh. The lawyers and the judiciary had weakened Musharraf. They hadn’t destroyed him. Benazir Bhutto’s death rocked the Musharraf order by bringing the latent anger of the people to the surface. There was nothing that could save Musharraf thereafter, Benazir Bhutto proving more powerful in death than she had been in life.

And it was only with the coming of democracy that the judges detained by Musharraf were freed. And only with the so-called long march led by Nawaz Sharif that, after many travails, they were eventually restored. In other words, it was the political process and the climate of the times which led to their historic restoration. How can their lordships see themselves in isolation from all this history?

The NRO was a bad law and there can be no cavil with this. But it was part of a larger picture of which there is scarce a mention in the entire judgment.

Source: http://www.thenews.com.pk Friday January 22, 2010 written byAyaz Amir
Email: winlust@yahoo.com

Did you like this? If so, please bookmark it,
tell a friend
about it, and subscribe to the blog RSS feed.

Tags: ,
Posted in Justice in Pakistan | No Comments »

Politicising state institutions

January 15th, 2010

The entrails of our society, particularly in Karachi, are hanging out. Over a hundred targeted killings may seem like another gruesome statistic. And we have been through so many in recent times that nothing registers for too long. But this is a clear evidence of state retreat, if not state failure.

The truly alarming part is that political actors controlling the state structure in one form or another are linked to the killings, whereas they are required to defend it. This adds a particularly difficult overhang to an already weakened police apparatus that has poor training and poor technical ability, and is riddled with political appointees.

The last part becomes a critical factor in Karachi because of deep political polarisation. Over the last twenty years, the police, indeed all other departments in the city, have gone through a transformation. Whenever an opportunity has presented itself, political parties have stuffed their supporters into the lower ranks of the bureaucracy and police.

This has deeply eroded the autonomy of the state structure. The upper ranks may be apolitical, but by the time an order filters down to the operational level it is seen with a partisan lens. More importantly, it is transmitted to political patrons, and their take on it colours implementation. This leaves the officers hanging in the air, seemingly in charge but without real command or control. It is difficult, if not impossible, for the state to function in such circumstances.

Our entire system of government is based on state autonomy and neutrality. It is indeed a legacy of colonial rule, as in it an autonomous state structure without political or local links was an essential. But while this made the government distant from the people, it had advantages in a society that is deeply divided by family, clan and tribal, and now political, loyalties.

While such a bureaucracy’s ability to undertake development and promote social growth was limited, its neutrality was an asset when it came to maintaining order or negotiating through the minefield of sectional disputes. It is beginning to lose even this advantage. Besides a general erosion of ability through poor educational standards, its alignment with local interest groups has thrown merit, and the much bandied about good governance, out of the window.

Karachi is an example of this decline. Gang or political warfare erupts and the state becomes a bystander. Rangers have to be called in and at least one party openly asks for the army to intervene. Let us remember that anytime a paramilitary or a military force is asked for, it is an admission of failure for the normal governing structures. The frequency with which this is happening. and not just in Karachi, is a loud announcement of our deteriorating governing ability.

We have to get our politics right, but we also have to get our governance right. And how will this happen if the entire effort of our political masters is to bend the state structure to their will. And they are doing this without taking responsibility, because all orders are signed by civil servants.

Political governments have come and gone, but nobody has decided to change the rules of business so that the political masters become the authorised signatories on orders that they ask the civil servants to issue on their behalf. Most often these are verbal and in one case the prime minister used to write on yellow stick-on chits that were removed later. In other words, it was a deliberate attempt not to leave behind a paper trail.

In such an environment where politicians, with honourable exceptions, refuse to take responsibility for their orders, complying civil servants start to appear partisan or linked to a particular person. It is therefore not a surprise that at least some have begun to be known by their political affiliations.

A classical demonstration of this was the brief and ill-fated imposition of governor’s rule in Punjab. The first order of business for the new management was to transfer a number of top civil servants out of the province and get new people in. These newcomers were all booted out the moment the previous setup came back.

It is this politicisation of the bureaucracy that is adding to all the other troubles we have. A civil servant performing diligently today under this or that political government is inadvertently tainting himself or herself with partisan colours for the next setup. And liable to be punished for it. How do we expect him or her to keep only merit as a guiding principle for performance?

This political overhang is now also being deliberately extended to the judiciary. The statement by Information Minister Kaira about the chief justice of the Supreme Court meeting Mr Shahbaz Sharif is a naked attempt at politicising the judiciary. It has been denied by everybody, but it was deliberately articulated to imply that there is a close nexus between one political party and the Supreme Court.

This is highly dangerous, because if the judiciary is also politicised there is no arbiter left in the system. There are fairly eminent people openly advocating that the government should not comply with the orders of the Supreme Court that are beyond the mandate of the Constitution. In other words, it is for the government to judge the constitutionality of a Supreme Court order.

If this advice is followed it will of course bring constitutional governance to a grinding halt. It is the responsibility of the courts, and particularly the Supreme Court, to interpret and decide what is constitutional. This is not the prerogative of any other state authority. If the government chooses to implement only that which it considers legal and constitutional, the court is as good as dead. Will that serve the cause of democracy?

In a similar vein, there are suggestions that the military should publicly declare, before the fact, that it will not implement Supreme Court orders issued under Article 190 of the Constitution; it will refer them to the ministry of defence, as Gen Karamat had done in 1998.

Besides asking the military to anticipate events and answer hypothetical scenarios, it amounts to dragging it into politics. If the purpose is that it should declare its neutrality by such a posture, it would actually do the reverse. It will pull it into the political debate. And if the military’s statement on the Kerry Lugar bill was wrong by some reckoning, another on a sensitive subject cannot be right.

It is an indicator of the state we are in that every institution in the country is being tarred with the brush of partisanship or accused of having agendas of its own. This is a sure recipe for failure. We are in a very difficult battle, not just against terrorism but poverty and a host of other problems. We have to be at our best, or we will not succeed.

Source:www.thenews.com.pk, Friday, January 15, 2010 written by Shafqat Mahmood
Email: shafqatmd@gmail.com

Did you like this? If so, please bookmark it,
tell a friend
about it, and subscribe to the blog RSS feed.

Tags:
Posted in Law and Order | No Comments »

« Older Entries