New Judicial Paradigms

Pakistan is undergoing a metamorphosis in its geist. The whole of society is at a loss for new paradigms through which it can explain and chart the future in an uncertain and increasingly complicating world. I think the paradigm that is accepted in these times will have impact on the very existence of Pakistan. If by chance, luck or design we reach a state of mind which explains the reality and determines out responses sufficiently accurately then Pakistan will survive to become a successful species. If on the other hand our collective conciseness errs and is off the mark, then Pakistan may become extinct.

I for my part, being a lawyer, consider that our judicial mind should accept the following two concepts which will bring our judicial wisdom, a part of our collective wisdom, closer to understanding reality and giving our polity an optimal chance of survival. The concepts are:

(1) procedural justice; and

(2) primacy of 'freedom' in deciding difficult cases.

The first is needed to increase clarity and certainty of the procedure of laws so that individuals can better understand the system and forecast the likely consequences of their actions. Lacking clarity and uncertainty leads to chaos in which individuals are not only stressed but also prone to wrong prognosis of the future consequences and hence a loss of valuable and limited resources. I must add that this is not a new or a novel concept but rather it was highly valued by our older judiciary but has lost its significance in the last few decades due to exigencies of various judicial predicaments.

The second is Ronald Dworkin's idea of freedom as in intrinsic good and any decisions policy or action which increases freedom, all things being equal, should be regarded as superior to those which do not. Now in situations where the laws are clear, this idea may not be invoked although I would advocate striking down laws on the ground of decreasing freedom without any added benefit or utility in some other material way. However, that may be too much for our judiciary and legal fraternity to accept. Hence I urge that in difficult decisions we must measure the quotient of freedom to determine the rightness and wrongness of decisions.

The two concepts when put in practice together increase the certainty for individual decisions and at the same time, if the certainty is still found lacking, freedom will encourage risk taking, bravery, initiative and enterprise, the founding blocks of prosperity and growth.

Human spirit yearns for freedom while it needs tools to increase its freedom. Certainty in laws and procedures gives it the tools or enables it to experiment in freedom and risk taking.

Conspiracy Galore!

The continuing violence in Pakistan has been thought through and debated on media and elsewhere vigorously. The different protagonists explain these events as follows:

(1) driven by the criminal elements;

(2) Pakistan Taliban on an ideological war path with Pakistani government who it sees as a US proxy;

(3) Al Qaeeda who wants to destabilise Pakistan, for reasons including getting hold a Nuclear bomb or two and also to fight an American ally;

(4) Afghan Taliban who are destabilising Pakistan and the region as a proxy war with the USA;

(5) Pakistani establishment to destabilise Civilian government or to give message that that they are very serious about war on terror and paying a high price;

(6) Pakistani establishment in order gain public sympathy and foreign money etc by creating a genuine threat;

(7) American backed militants who are planing to weaken Pakistan as pretext to dismembering or to secure the Nukes;

(8) Foreign interests who want to instigate flight of capital to their countries from a destabilised South Asia;

(9) Indians via Afghanistan to keep Pakistan off balance and economically backward;

(10) Chinese, Iranians, Russians and other regional powers in order to not let Americans have a stabilised Afghanistan or Pakistan and to make them leave the region;

(11) US enemies, who want to do Vietnam to USA all over again;

(12) Corporate interests of Defence Industries in order to continue to justify the funding for weapons etc;

(13) European Countries to keep USA bogged down in the region and to make it bleed economically and hence end its dominance;

(14) Oppositions Parties in Pakistan to force the ouster of the government;

(15) Other private and business interests, trying to keep the government off balance;

(16) Al Qaeeda seeking to instill the failure of centrists in the minds of the masses and hence portraying itself as the only feasible option for governance.

I am sure there are other potential theories. I am also sure if we think through each one of the above, we can come close to the true picture!

National self-determination and economic viability: Pakistan

When Woodrow Wilson promoted the idea of the national self-determination for the colonised people at the beginning of the twentieth century, the same was subject to an important proviso, namely, that the resulting nation should be economically viable.

This meant that the state resulting from the exercise of the right of self-determination must be of adequate economic size to survive on its own.

The Wilson doctrine formed the basis of the US foreign policy at least until the European colonies were freed.

Over the years, the Wilson doctrine lost its proviso at least in the rhetoric of US foreign policy. This has coincided with a plethora of small nation states and an unstable world order.

The Wilson doctrine was only common sense. A nation state has the right to exist but it can only exist if it is economically viable. Therefore, only meaningful and realistic exercise of the right to self-determination can be for the groups large enough that are strong enough to compete and prosper in the world.

The so called exercise of this right has resulted in many nation states that are only nominally sovereign.

In reality these nation state are not strong enough to compete and survive on their own and most of them have acquired a de-facto colonised status.

In the era of cold war, these small nation states depended on either the USSR or the USA for patronage: political, economical and militarily.

With the USSR gone, and the USA emerging as sole super power, these small nation states have felt the burden of their small sizes.

The fate that Afghanistan and Iraq have faced is the fate that awaits other weak and small nation states.

This is stating the obvious. If you look around the world who do you see as secure and prosperous states: China, Russia, Europe, India, and the USA. In fact, I will go as far to state that these are the only sovereign entities in the world.

The implication for this for Pakistan, Iran and Afghanistan is that they will never be truly sovereign with their present size or strength. These countries need to be part of something bigger in order to achieve sovereignty.

The idea of nation is not a romantic or a feel good idea. It has developed for a reason and at that a very practical reason that is, 'survival'. Smaller tribes merged themselves and 'invented' nations to survive and compete against other bigger entities.

A entity in order to be a nation must be viable. That is the only definition that puts sense in the ideal or romantic notions of a nation.

Pakistan, seriously, needs to consider whether it is a viable entity in its present status. For the most parts of its history, Pakistan relied on the USA and China for its security and economic survival. It is still doing so. Pakistan, in this world, of far bigger economic units, can never be truly sovereign.

For Pakistanis who want to be part of a great civilisation there are many options for their country stands at the crossroads of many civilisations. Theoretically, Pakistan can be part of the either the Muslim civilisations or the Indian civilisation. In Muslim civilisation choices are between Wahabism of Saudi Arabia, Shiaism of Iran and the Central Asians. In these three cases Pakistan may have to lead the pack. In other words it will have to play a role in the creation of a great civilisation which has never existed in history.

Or Pakistan can revert to sub-Continental civilisation and join in the swan song. That is perhaps a more pragmatic choice.

Historically, Punjab has inevitably been trying to create this great civilisation which was epitomized by Ranjit Singh's rise which was cut short by the British. Then, under President Zia, Punjab again flexed its muscle, this time to be pushed back by the Americans. Punjab's power house for some reason seem to be Strong enough to dominate its neighbours and but for the foreign intervention, might have by now lead to a greater civilisation with Punjab being its driving horse.

The power house of Pakistan, Punjab, should seek to lead its other provincial partners to greater and bigger things to ensure mutual survival of all.

Imbalance of power between India and Pakistan

(The following was published in July 2006. However, it may be more relevant now and hence I am putting it here)

A regional imbalance between countries with a history of conflict and mistrust is a lose-lose situation for all.

The recent conflict between Israel and Lebanon is instructive for India, Pakistan and the USA. The dynamics of conflict generation seem to be that an imbalance of power was created between Israel and Lebanon which had a history of mistrust, namely, the Syrian forces were made to withdraw from Lebanon. This made the task of the dominant power to subdue the subservient power easier, attractive and rational! As the dominant power could see that it can attack the subservient power with little fear of retaliation.

The environment was rich for conflict. An event occurred to the disliking of the dominant power and it decided instantly to teach the subservient power a lesson, namely, two of its soldiers were kidnapped.

The result has been war with adverse social, humanitarian, political and economic consequences for both the countries. Most importantly for Lebanon the foreign investment and the resultant economic activity have stalled and retrogressed. This will surely result in social problems in Lebanon and it will be easier for the extremist elements to popularize their appeal. This will in turn mean more problems and attacks for Israel which will mean disruption to the normal life, commerce and trade.

Thus, it may obvious to state that creating an imbalance of power between countries with histories of conflict and mistrust is a no-win situation for either of those countries!

There are lessons in this for India, Pakistan and the USA. The USA has, it appears, taken a decision to give India the leadership role in the region, in terms of military, economic and political clout. This will create an imbalance of power between India and Pakistan which are, like Israel and Lebanon, two countries with histories of conflict and mistrust. This will, like the example quoted above, can make it rational and attractive for the dominant power to be more aggressive with the smaller power and more akin to enter into a military expedition considering itself more powerful. In this environment if any event occurs that provokes the dominant power then it is to be expected that the response of the dominant power will be more aggressive than had there been a balance of power. Indian reaction towards Pakistan after the Mumbai bomb blasts can be explained thus.

Although, both India and Pakistan are nuclear powers, however, if India is led to believe that its nuclear power is superior to Pakistan’s, thanks to the US technology transfer or that it will be able to thwart any Pakistani attack through technology such as Patriot Anti Missile System, then the temptation for it to engage Pakistan militarily may far too great to resist.

This will have adverse effects for the both countries, even more so for India. The biggest effect will be on India’s economic activity and the result could be political and social chaos given the size of that country, and resultantly it will be bad news for the international community and the USA itself whose prime aim of making India a strategic power in the region will be thwarted.

All the three countries must be careful in maintaining the balance of power and if it is indeed disturbed then in the case of provocative events they would have to show great restraint in the interest of humanity and our political and economic global village. 

Rethinking India: The Pakistani Security Paradigm

The anti-Indian policies of Pakistani state from its inception were not due to any innate hatred of India but exercises in self-preservation by an insecure and vulnerable Pakistani state in its infancy. However, it was done so thoroughly and convincingly that even after securing our existence, we are still following the old policies. In effect, we have become slaves of our old policies which do not reflect our nuclear status.

Here is an explanation of the above.

The Chief of the Inter-Services Intelligence of Pakistan has quoted to have said that India is not the enemy at the present. 

In my opinion, this is correct. With Pakistan becoming a nuclear power, it is not vulnerable to state actors especially not from the ones which have large stakes and a lot to lose in the case of a conflict with Pakistan. Pakistan, however, is vulnerable to internal instability and from elements against which our nuclear power is not relevant.

In other words, our nuclear power is a deterrent against countries and states or concrete regional entities and secures us against them, including against India. But this big power of ours is not effective against internal discontents and elements. And, our challenge is thus not securing ourselves against India that we already have, but unconventional actors and internal discontents.

In this sense the statement of the Chief of the ISI is right on the money.

Pakistan and India were created amidst a bitter and bloody partition. That calamity and tragedy planted the seeds of distrust and insecurity in the minds of the Pakistani policy makers in the early years.

Pakistani establishment felt an existential threat from India which was not unjustified given the circumstances leading to the creation of Pakistan. Indeed, if there had been no distrust between the Congress (which embodied the Indian leadership) and the Muslim leadership headed by Quaid-e-Azam Muhammad Ali Jinnah, there would have been no need for Pakistan.

The distrust between the two sets of leadership continued into their heading two different countries and shaped the state policy thereafter. 

Pakistan's fundamental security concern was a threat from India. With a weak state structure and smaller size Pakistan was vulnerable or so its leadership felt. Pakistanis in order to secure their existence sought strong allies such as the USA and later China for help against India. Internally, Pakistanis perpetuated their fear and distrust of India into all spheres of policy including, the school and college curricula, defence policy, foreign policy priorities, trade policies, organisational ethos in security organs and the political expression.

This must be borne in mind by all those making policy for Pakistan now.

Today, Pakistan is no longer a weak and vulnerable state in the sense that it is an atomic power and no country including India should make it insecure or raise its concerns regarding its existence.

With its existence secure, Pakistani state can move away from policies centered on a threat from India. Since our existence is not threatened anymore, we no longer need to make policies centered around our security and the Indian threat.

India has accepted Pakistan as a reality. Indeed, India would or should prefer a buffer between itself and the dangerous Afghanistan. Historically, India has always been destabilised from elements coming from or through Afghanistan. Pakistan since its creation has given India a breathing space so to speak and India shall do well to preserve that.

 

We will all be dead in the long run!

Our Finance Minister Mr. Naveed Qamar is a nice, optimistic and overly hopeful person. I have been reading and hearing him speak on media about his policies. The thrust of his policies is that in the short term there will be tightening of the monetary and fiscal policies. He is asking the nation to make sacrifices in the short term and the fruits will somehow follow in the long term!

The basic premise of the Finance Minister's approach is that in the long run, everything will even out and therefore government does not need to anything to rectify the short term problems in the economy and should concentrate on the long run.

I would just like to remind our Finance Minister of John Maynard Keynes' famous remark 'in the long run, we are all dead'.

Our Finance Minister should aggressively push to rectify economic problems being faced by Pakistanis (preferably within our lifetimes), rather than letting everything work itself out. The market forces have been noted, in recent times, to be not doing what many free market economists expect them to. The recent financial crisis in the USA is an example of laissez-faire policies. And, the biggest advocate of the free market economy has been forced to intervention in the market by the government! Perhaps it is time for our own minister to think afresh about the merits of the free market economics in the current times.

I am not sure if the tightening of monetary policy is a wise idea. The rationale behind increasing the interest rate is that it will some how restrain the inflation. The problems with such approach are many:

(1) one is that you encourage the people from putting their money in the banks and earn interest rather than investing in the real productive ventures;

(2) another is that you make the capital expensive and thus difficult for businesses to carry on, discourage the local entrepreneurs from expanding their businesses or starting new ones thus increasing unemployment; and

(3) another related issue is that by making the local capital expensive you leave the market open to foreign investors who have access to cheaper capital. These investors may invest but then they will take away their capital and earnings abroad in foreign currency putting pressure on the exchange rate of the local currency.

On the fiscal front, our finance minister wants to cut the government spending and thus reduce the fiscal deficit! The lack of investment and demand thus created is sought to be overcome by foreign and local investment! However, by making the local capital expensive (due to high interest rates), you basically shut out the local investment. Thus practically these policies are only encouraging foreign investment. This is a recipe for disaster.

In my opinion, foreign investment with our current policies of allowing full repatriation of the profits and the capital in the form of foreign exchange is worst than the biggest of the deficits that our government can have. If you look at it practically, there is no difference between fiscal deficits and foreign investment. Both need to be repaid and in the case of the latter it has to be in foreign exchange thus dwindling your foreign exchange reserves and leaving your economy's survival on the whims of few CEOs.

The point is that if our economy is not at the optimum level of employment and resource utilisation then fiscal deficit and cheaper domestic capital are much better policy options than sole reliance on foreign investment.

Our government needs to seek out of the box solutions to the current economic crisis. High interest rates and lowering government spending in these critical times will surely lead to an economic catastrophe.

The government needs to reduce the interest rate to a maximum of five percent and increase government spending albeit by printing notes to make up for the lack of investment by the private sector.

Containment and the current US foreign policy

During the Cold War years the US foreign policy was characterised by the word containment which meant containing the spread of communism and that translated into limiting the influence of the former Soviet Republic.

The current US foreign policy also revolves around the same word, namely containment. However, this time around the containment means containing the economic and military powers of all potential adversaries.

The theoretical underpinning of this policy was provided in the late 1980s in a book titled,"The Rise and Fall of Great Powers". The thesis described in that monumental work is that when nations grow economically then they also grow militarily and if that growth continues unhindered then such nations start to expand and then turn into new empires which then threaten the existing powers or empires.

The logical policy implication of this thesis is that the existing empires or powers must check and retard the economic and military growth of all potential adversaries in order for them to sustain their supremacy.

The clearest example of the application of the above was provided in the explanation for the second invasion of Iraq in 2003. Among other arguments, it was stated that Iraq had wealth and the manpower to develop economically and militarily and with a potential adversary in power, that country could become something like Nazi Germany thus its progress had to be stopped and the potential adversary taken out of power.

Similar arguments are given for the invasion on Iran and the so called War on Terror.

Now one can question the validity of Paul Kennedy's thesis but the fact of the matter is that most of the US policy makers have read and digested his thesis in their college days or otherwise and firmly believe in it. So we must be ready for the continuation of the new "containment" for foreseeable future.

Now one can draw many conclusions from the above analysis for Pakistan, India and China. All three are growing economic and military powers. Will the US policy makers allow their growth unhindered and risk them becoming a threat to the US?

In case of India, because it is a democracy and a liberal country the threat to US is not that apparent and thus the US may not object to its growth. However, Pakistan, because of its Islamic and somewhat militant Islamic nature, and China because of its centrist regime and also because of the fact that it is now in the third phase as per the said thesis i.e. expansion of influence and borders, the US foreign policy makers may not allow their unhindered growth without some sort of assurance that these two countries will not be a threat to them.

Both China and Pakistan need to build a strong and reliable partnership with the US with democratic reforms at home if they wish to avoid friction in the world in the coming years.

As a Pakistani, my advise to fellow country men and women will be to pursue a fair pro US policy which simply means minding our own business and not become a pawn in the designs of Anti-US forces.

Pakistani Elections 2008: fair results?

The starting point has to be Mr. Nawaz Sharif's attempted return to Pakistan in September 2007. Apparently, the masses did not turn up to receive him and he was deported to the Kingdom of the House of Saud. The lack of public agitation and reaction to this deportation was analysed as a proof of the lack of popularity of PML(N) and a poorly managed political party. However, the results of 18 February's elections have gone totally to the contrary. They reflect in Mr. Nawas Sharif a popular leader who can galvanize public in a mere couple of months and a highly organised political party which can contest and almost win an election in the shortest possible time in the most adverse circumstances possible. Something is amiss!



According to the unofficial results the PML(N) received around 20% of the total votes but gained more than 24% seats. The same statistics for PPPP are 32.7% and 32.7%! And, those for PML 24% and 15.4%. Now despite getting less votes than PML, PML(N) has gained more seats! Generally, this is taken as a classical sign of rigging! Is it? In the 2002, elections the PML(Q) got 26.63% of the votes but earned 33.2% of the general seats in the National Assembly. It was assumed by all and sundry that those results were rigged.



There is a theory circulating that the establishment wanted a weak government at the center which could be goaded by it. However, the establishment was afraid of the PPPP's landslide victory especially in the wake of the tragic assassination of late Ms. Benazir Bhutto. The PML could have stopped that landslide but even a fair victory for PML would not have been digested by the masses and could have resulted in wide spread chaos in the aftermath of the elections.



Thenceforth, entered Brigadier (R) Niaz in the picture and the alleged meeting between Mr. Shahbaz Sharif and President Musharraf. The only way to stop the victories of the PPPP and PML both of which were unacceptable for different reasons was to manipulate the elections in favour of PML(N) provided that it was ready to play ball. Apparently, the results it indicate that it was so ready! Nobody could have cried foul as a so called most opposed opposition party was favoured at the expense of the most favoured political party! The real victim was the PPPP.



It certainly is the case that PML(N) has agreed to play the role of the Queen's opposition but is pretending as having as an anti-establishment stance to save face. However, Mr. Zardari has called PML(N)'s bluff. By offering coalition governments at the centre and province Mr. Zardari's is trying to preempt the role set for the PML(N) by the establishment.



The only option for the PML(N) will be to create differences with the PPPP on one issue and part ways. The most likely issue will be the restoration of the former Chief Justice Ifitkh(ar Ch.


(The article was written in March 2008 but not published to give the PML(N) the benefit of doubt)

Proclamations and PCO(s): What then is the law?

(Still a draft)

General Musharraf has again given an opportunity to all and sundry to decide afresh what is the law by proclaming the Proclamation of Emergency and PCOs of November and December 2007.

To determine the validity of these pronouncements as law one has to determine what is law?

Following are some of the definitions of law:

(1) Law is what judges say it is.

(2) Law is what the man with the gun says it is. Law flows from the barrel of the gun. People have an ingrained habit of obedience to power and they accept the strictures of the man with the gun. The notion of revolutionary legality espoused by dear old Justice Munir is within this genre.

(3) Law is what God has ordained and exists regardless of whether or not it is followed i.e. natural law.

(4) Only those rules are laws which are recognised as such through the use of the rules of recognition i.e. those are formed in accordance with the accepted rules regarding how the laws are to be formed. For instance if the rule of recognition is that only a rule passed by elected representatives is law then a rule formed in any other manner will not be law.So is the PCO(s) law?

Lets apply these definitions or descriptions to the PCO(s).

(1) According to the first definition the judges will determine this question. The question then is who are the judges? If the PCO is law then only those who took oath under it are the judges. However, if the PCO is not law then the persons who acted as judges under the previously accepted law are the judges.

(2) The man with the gun has said that the PCO is the law and hence according to this definition so it is. The only challenge can be that another man with a bigger gun says that the PCO is not law.

(3) So what has God ordained? As the majority of us are Muslims so let us see what Allah has laid down as law and if the PCO is in accordance with it? The question in our common parlance becomes is the PCO Islamic or not?

(4) In our history the rules formed as has been the PCO have been recognised by the judges as laws and those were also followed by the public-at-large. Thus, it can be said that the PCO is a law. However, it can also be argued that the last valid rules of recognition were enshrined in the constitution and as the PCO is not in accordance with those hence it is not a law.

Now, you will see that there are no clear answers as per the above criteria. The answer will depend on what criterion one chooses to follow and what interpretation one adopts.

In my opinion the law and the morality can never be disentangled. Well, not generally by ordinary mortals. And, in Pakistan the morality is hardly ever different from self-interest. The equation thus becomes a simple one: if the PCO satisfies the interests of the people who have more power than those whose interests the PCO harms then the PCO will be accepted as law but it will not be so accepted if the reverse is the case.