By K. K. Shahid
In mid-July, the Islamabad High Court (IHC), Justice Shaukat Siddiqui, asked the army chief and the Inter-Services Intelligence (ISI) chief to stop meddling in judicial affairs. By the month end, the Supreme Judicial Council had begun an investigation against Justice Siddiqui.
The Judicialization of Politics in Pakistan by Waris Husain is therefore aptly timed. It focuses on the overreach of the judiciary, keeping in mind the events of the ongoing decade, and juxtaposing it with the performance of the judiciary in the US and India.
The narrative, popularised by former Prime Minister Nawaz Sharif – not enough to win the elections last month of course – goes that the army and the judiciary collaborated to oust him and are working to undermine parliamentary supremacy. This, coupled with the aftermath of the lawyers’ movement and the undertakings of the ‘Chaudhry court,’ has brought the politicisation of the judiciary under the spotlight.
Waris Husain’s book looks into the Supreme Court as a dominant force in the country’s tripartite constitutional system and critically analyses its judicial reviews – most notably vis a vis the Parliament and the Prime Minister – since 2007. The comparisons with India and the US aren’t solely based on jurisprudence, but the development of judicial reviews in the three countries in question is scrutinised in detail, tracing the origin of the judicial systems to the colonial era. Two notable differences have been underscored with regards to comparing the American and Indian subcontinent colonies.
“First, while the American colonies were largely established and inhabited by European settlers, the Indian colony remained dominated by native groups that historically lived on the land. Second, the colonial period of rule in the American colonies was far shorter in time than British rule of India, which began in the late seventeenth century and extended up until 1947. On a spectrum of judicial activism today, the Supreme Court of Pakistan stands at one end, the United States at the other, and the Supreme Court of India takes a place somewhere in between.”
Beginning with the interventionism of the Supreme Court under Chief Justice (CJ) Chaudhry Iftikhar and culminating in the apex court’s impact on the elections last month, the book analyses the political developments in the country through the judicial lens. To begin with, it was necessary to arrive at a clear definition of the phrase, ‘judicial activism,’ despite the fact that there is general disagreement over its meaning. Waris Husain brings forth a multi-pronged definition that focuses on the court “willing to invalidate statutes,” “departing from text and precedents,” “changing public policy,” “asserting itself against an elected branch of government,” or “abusing unsupervised power.”
While contrasting the judicial progress in the three countries, the book highlights the influence of colonial courts, which were largely rejected in American colonies, but not in the Indian ones.
The influence of the British jurist, Lord Edward Coke, whose suggestion in 1610 that the courts had ‘the power to judge the parliamentary acts’ violation of natural laws, forms the heart of his theoretical influence in the judicial set-ups of all three countries.
The comparison of the constitutional structure of the countries is important – presidential in the US and a presidential-parliamentary system in India and Pakistan – even though all three countries, in theory, uphold constitutional supremacy over legislative supremacy. But with the book focusing on Pakistan, it reaffirms the socio-political factors that separate Pakistan from the other two countries, most notably the influence of the military.
How the three apex courts filter petitions is also an important discussion in the book, with the Pakistani Supreme Court’s generous use of suo motu notices narrated in detail, with the frequency of the action depending largely on the individual inclinations of the serving Chief Justice (CJ). For instance, CJ Sheikh Riaz took six suo motu cases from 2002 to 2003, while CJ Chaudhry took 123 between 2005 and 2013. Justice Chaudhry’s successors, Tassaduq Jillani and Nasirul Mulk, used the suo motu during their tenures from 2013 to 2014 less than ten times each. “While the United States Constitution limits the Supreme Court to decide “cases and controversies,” the Pakistani and Indian Supreme Courts can take up any issues relating to a fundamental right of public importance. This creates a much wider area for the courts of the Indian subcontinent to exercise judicial review.”
At the heart of The Judicialization of Politics in Pakistan is the comparison of three prominent cases in Pakistan, India and the US, where the Supreme Court dealt with the prospect of disqualifying heads of state/government and the contrasting manners in which each case was dealt with by the respective Supreme Courts.
While the top courts of India and the US exemplified restraint, Pakistan’s Supreme Court unilaterally disqualified serving premiers Yousaf Gilani and Nawaz Sharif, bypassing the parliamentary process for disqualification, which has been mandated by the Constitution. In Indira Gandhi’s case, the Indian Supreme Court of India demurred and dismissed the charges of corruption but overturned a constitutional amendment to justify emergency rule, while in President Richard Nixon’s trial, the US Supreme Court left the actual impeachment to the Congress.
“A comparison of the Gilani, Gandhi and Nixon cases demonstrates the need for Pakistan’s Supreme Court to structuralise and restrain its judicial review process, especially when it relates to the disqualification of a democratically-elected prime minister.”
Finally, the author advises the Pakistan Supreme Court to adopt a more self-restrained approach in cases pertaining to the civilian elected branches, by offering a standardised procedure which gives due consideration to Pakistan’s unique socio-political factors. The apex court is urged to amend the Supreme Court Rules, while calling for a commission to investigate changing the Rules and to establish the Justiciability Council. But the author cautions that while the move would mean the Supreme Court establishing its own institution for restraint, the Council’s creation would hinge on the CJ calling for it. “If the judiciary were to take this step itself, the often-repeated claim that any control exerted by Parliament over the Court’s exercise of judicial review endangers judicial independence could be invalidated.”
The new citizenship bill and the Hinduisation of India
On January 8, India’s lower house of parliament approved a bill that would grant residency and citizenship rights to undocumented non-Muslim immigrants, sparking protests in the country’s northeast. The protests took place mainly in the state of Assam, where millions of people were accused of being foreigners and effectively stripped of their citizenship last year.
The controversial Citizenship (Amendment) Bill 2016, which still needs the approval of the upper house of parliament, seeks to amend the 1955 Citizenship Act to make Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from three Muslim-majority countries – Bangladesh, Pakistan and Afghanistan – eligible for Indian citizenship. This would mean migrants belonging to these religious communities who entered India without the necessary documents prior to 2014 would not be imprisoned or deported and would gain permanent citizenship after six years of residency in India.
The government says the bill aims to provide succour to persons who have been persecuted in their homelands because of their religious identities and who have “nowhere else to go but India”. The proposal assumes persons who identify as Muslim cannot be persecuted in Muslim-dominated countries, and therefore excludes all Muslim immigrants. Hence, members of the Ahmadiya and Shia communities of Pakistan, despite being persistently targeted by extremists, would not be able to seek refuge in India.
The bill has been widely criticised for attempting to make religion an eligibility criterion for Indian citizenship – an act that would fundamentally alter the secular character of India.
Critics have questioned the reasons behind the government’s decision to limit the scope of this bill to migrants from Muslim-majority neighbours of India. Some have argued that the fact that the proposal excludes thousands of undocumented immigrants from Sri Lanka, Nepal and most importantly Myanmar implies that the Indian government is not at all concerned about the persecution of minorities if they are not living in Muslim-majority countries.
Indeed, when members of Myanmar’s Muslim Rohingya minority sought refuge in India after being persecuted in their home country for their religious and ethnic identity, the Indian government did not attempt to provide any legal protection for them. On the contrary, the members of the government perceived these desperate refugees as a threat to India and made attempts to force them out of the country.
In this context, the claim that this bill is a humanitarian gesture aiming to help people in need does not hold. So what is the Indian government’s real motivation for supporting this bill?
The governing Hindu-nationalist Bharatiya Janata Party’s (BJP) main strategist for the northeast, Himanta Biswa Sarma, recently exposed the real purpose of this bill: protecting India’s so-called Hindu identity.
Before the citizenship bill was put to a vote in the lower house of parliament, Sarma, who is also the finance minister of the state of Assam, said, “If this Bill is not passed, then Hindus in Assam will become a minority in just next five years. That will be advantageous to those elements who want Assam to be another Kashmir and a part of the uncertain phase there.”
And soon after the bill was passed, the minister argued that this decision may have prevented Muslims from taking control of Assam’s 17 assembly seats and the Muslim leader of the All India United Democratic Front (AIUDF), Badruddin Ajmal, from becoming the chief minister.
By using the potential electoral success of Muslim Indian citizens, who have every right to contest and hold public positions, as a way to legitimise the citizenship bill, Sarma clearly demonstrated that the purpose of this bill is not to “help” anyone, but to protect and promote Hindu supremacy in India.
Prime Minister Narendra Modi has also previously admitted that the bill is tied to his party’s desire to make India a Hindu nation that prioritises the rights of Hindus irrespective of their citizenship.
During a rally in Assam’s Bengali-Hindu dominated region of Silchar, Modi said that the citizenship bill is an “atonement for the past mistakes of partition”.
Emphasising that he believes blood relations are more important than the “colour of passports”, he promised the region’s Bengali-speaking Hindus that he would make sure that they will be accepted and welcomed by “mother India” by passing this bill.
Today, Assam is at the centre of protests about the proposed amendment to India’s citizenship bill and this public anger has historical roots.
During Bangladesh’s bloody struggle for liberation from Pakistan in the early 1970s, many Bengalis moved to Assam. Over the years, their increasing numbers stirred anxieties among the indigenous Assamese people about the preservation of their distinct culture and ownership of land. As a result, between 1979 and 1985, an “anti-foreigner” agitation – dubbed the “Assam movement”, targeting the Bengali immigrants – erupted in the state.
To end the violence, India’s central government signed the Assam accord with the leaders of the Assam movement in 1985. The accord specified that only people who could prove that either they or their parents had entered or lived in India prior to March 1971 can assume Indian citizenship and legally reside in the state of Assam.
Last year, a new National Register of Citizens (NRC) was prepared in the state to distinguish Indian citizens from undocumented immigrants according to the rules set by the 1985 accord. This list included only 28.9 million of the 32.9 million people residing in the state, rendering nearly four million people stateless.
The decision to denationalise millions of people was widely supported by Assam’s indigenous population, which still fears their culture may be decimated by the influx of “foreigners” and widely criticised by India’s Bengali communities and international observers. The Assamese’s main fear is that Bangla-speaking people from neighbouring Bangladesh, irrespective of their religion, would come to dominate Assam. Hindu and Muslim Assamese are united on this viewpoint and they all want undocumented immigrants to be kicked out of the state.
However, with this new citizenship bill, the BJP government is trying to convince Assamese Hindus that their loyalty should lie not with the indigenous Muslim communities of their state – who speak their language – but with Bengali Hindus. For now, the majority of Assamese Hindus seem not convinced by Hindu nationalist arguments.
The Assam Gana Parishad (AGP), the successor of the Assam movement, has already severed ties with the BJP and expressed its displeasure over the move. The AGP and its allies see in this move an attempt by the BJP to lure as many Hindus from Bangladesh as possible to this region, which, they think, would make it Bengali-dominated and eclipse the local cultures.
The citizenship bill needs to be seen as a part of the BJP’s larger ideological and political agenda to transform India into a “Hindu homeland”. The governing party believes India belongs to Hindus and everyone else are invaders, or at best latecomers, who should expect nothing more than a guest status.
The BJP is clearly using this bill to send a message to the Hindus in other parts of India that under their rule, “Hindus will always come first”.
From the very beginning, the BJP viewed the NRC as way to rid the country of Muslim “foreigners”. Using this citizenship bill, the governing party is trying to make sure no Hindus are harmed by the NRC and their quest to expel Muslims from India can continue without complications.
If this bill gets the approval of the upper house in the coming days, it will not only cause division and conflict in the northeast of India but will significantly contribute to the ongoing Hinduisation of India.
Are they really concerned about India’s poor?
By Alf Gunvald Nilsen
On January 9, the upper house of India’s parliament – the Rajya Sabha – passed a constitutional amendment to lift the cap on reservations in education and public sector jobs from 50 to 60 percent. The next step is for the bill to receive presidential assent, but its fate is still somewhat uncertain, given the possibility that it might not withstand judicial scrutiny and be struck down by the country’s Supreme Court.
What is certain is that this initiative has proven deeply controversial. Opposition parties have criticised its legality, intent, and practicability, while public intellectuals such as Pratap Bhanu Mehta has labelled it cynical politics and cynical policy.
Reservations are what passes for affirmative action in the Indian context, and entail, simply put, a percentage of state and central government jobs and seats in higher educational institutions being reserved for Dalits and other lower caste groups. This form of affirmative action has colonial antecedents, and was written into the constitutional backbone of India’s political system after the coming of independence as a means of improving the condition of groups who were thought to be suffering from social and educational backwardness.
Reservations were initially limited to Dalits (Scheduled Castes) and Adivasis (Scheduled Tribes). However, in the early 1990s, in accordance with the recommendations of the Mandal Committee Report, reservations were expanded to encompass other lower caste groups (Other Backward Classes) as well. In 1992, the Supreme Court imposed the 50 percent cap on reservations, which is currently in the process of being overturned, avowedly to avoid compromising the constitutional principle of equal access.
What is crucial about the constitutional amendment that has now successfully made it through parliament is the fact that it is delinked from caste. The additional 10 percent of reserved jobs and seats in higher educational institutions that is to be introduced by removing the current 50 percent cap is intended to benefit what the Modi government refers to as “economically weaker sections” that do not fall under the categories Scheduled Caste, Scheduled Tribe, or Other Backward Classes – that is, so-called general category poor.
Economically weaker sections are defined as households with an annual family income of less than $11,345 (800,000 rupees) a year, who do not own more than two hectares of agricultural land or a house that is larger than 1,000 square feet.
However, as commentator Ajaz Ashraf has pointed out, upper caste groups are expected to benefit disproportionately from this policy measure, as their high levels of education, as well as their accumulated social capital, will most likely enable them to corner most of the benefits.
This is why Modi’s scheme has come to be scorned as “upper caste reservations” that erase the fact that, in India, affirmative action was introduced specifically to remedy the indignity of caste-based discrimination. In this regard, it is also significant, of course, that the economic criteria for eligibility have been defined in such a way that nearly all Indian households qualify – a fact that, according to Supreme Court lawyer Karuna Nundy, renders the constitutional amendment nothing less than ridiculous.
Modi is making this move in no small part due to an electoral imbroglio that is emerging from his project of authoritarian populism. His electoral success in 2014 was based on the fact that he and the Bharatiya Janata Party (BJP) managed to extend their base of support from the urban upper caste and middle class groups that have been the main supporters of Hindu nationalism in electoral politics to incorporate Other Backward Classes, Dalits, and Adivasis.
From 2016 onwards, this bloc began to crumble. Dalit and lower caste voters began to abandon the party, and Modi was the target of large-scale protests both by Dalits and farmers. Modi has attempted to stem this tide – for example by reversing the Supreme Court’s decision to relax the provisions of laws aimed to prevent violence and atrocities against Dalits – but this seems in turn to have resulted in the alienation of upper caste voters. As the 2019 general elections are looming on the horizon, Modi is now attempting to shore up the support of the BJP’s main vote base.
In doing so, he is appealing to upper caste and middle class groups who resent caste-based reservations due to the profoundly mistaken belief that affirmative action prevents social mobility based on merit. He is also attempting to appease Hindu nationalist hardliners who have recently called for caste-based reservations to be abandoned in favour of reservations based on economic criteria.
“Poverty does not see caste,” argues Desh Ratan Nigam – a leading activist with the Rashtriya Swayamsevak Sang, the BJP’s ideological parent-body – and therefore reservations should be based on economic criteria.
How should progressive forces in India respond to this initiative? A good starting place is to point out that Nigam is as wildly incorrect in his assertion that poverty does not see caste as he was in his ludicrous claim that the Taj Mahal – which was built by the Mughal emperor Shah Jahan – was in fact a Hindu temple.
According to the Oxford Poverty and Development Initiative, 65.8 percent of India’s Dalits, who predominantly earn a living as wage labourers, and 58.3 percent of the country’s lower castes are poor. By contrast, 33 percent of the rest of the Indian population are poor. The fact that poverty in India is structured in this way testifies to the truth of the claim made by Dalit intellectual Anand Teltumbde that “beneath the veneer of a modern developing superpower, India remains a republic of caste.”
Closely linked to this must be the argument that reservations were never intended to be an anti-poverty measure, and that it is therefore disingenuous when the BJP speaks of it as such. However, this point in turn needs to be connected to a progressive critique of the limitations of reservations for the politics of social justice. Again, Anand Teltumbde’s reflections are instructive.
Reservations, he argues in a recent interview, were never about rooting out caste – if that had been the intention, the caste system as such would have been abolished, which it was not. Moreover, the persistence of dramatically low social development indicators among Dalits suggests that reservations have done little to achieve progressive change even on their own terms. Advancing social justice for Dalits, he suggests, has to be linked to a struggle for universal social citizenship, which can grant access to healthcare, education, and secure livelihoods.
This perspective provides a way in which to link struggles against the injustice of caste with the political economy of inequality in India – a political economy that is writ large in the fact that in a country which has grown at an average rate of 7.3 percent since 2007, 57 billionaires own as much wealth as the bottom 70 percent of the country’s population, while at the same time India’s social development indicators are much weaker than those found in far poorer neighbouring countries.
Importantly, that link is already being forged by Dalit activists who couple claims for dignity and recognition with demands for social justice and redistribution, and it is quite possible that it is struggles such as this that can consign the republic of caste to the dust heap of history where it belongs.
Missing leadership in Pakistan
By Miftah Ismail
One of the first things you learn in management is that you can delegate authority but you cannot delegate responsibility. Indeed, the central traits of effective leadership are to motivate your team, led by example and to accept full responsibility for any failure.
A great trait of Imran Khan as cricket captain was his ability to lead from the front. He was able to take wickets when partnerships threatened and anchor the innings when collapses were imminent. He not only made things happen but took responsibility for his and his team’s failures.
Prime Minister Imran Khan, although often called ‘Kaptaan’, has yet to show anything close to his leadership traits as a cricket captain. Not only is he not able to lead by example or motivate his team, he is especially averse to taking responsibility for the failures of his government.
This is the reason there seems to be so much infighting within his team, and his players are neither willing to work hard nor exhibit discipline and nor certainly willing to accept responsibility.
Take the example of the recent devaluation of the rupee, after which the prime minister said he wasn’t informed, the governor of the State Bank (a man with an unblemished record of integrity and probity) said that he did inform the finance minister and the finance minister too said he did inform the prime minister. The rupee went down by about eight to ten percent, came back up by seven to eight percent a day or so later, there was great turmoil in the currency markets, and to this day we don’t know who first decided to devalue the rupee, who then decided to appreciate the rupee and who was responsible for the whole turmoil. No one led from the front.
Then there is the urban legend of Pakistanis having $200 billion in Swiss bank accounts. When the myth started, it was just Pakistanis having this money in the bank. But then over time in the speeches of Imran Khan and other PTI leaders the myth gained momentum. It became money that was illegally sent abroad by Pakistanis. It then became money that was even illicitly earned by Pakistanis. And finally it became illicitly-earned, laundered money of (non-PTI) Pakistani politicians.
According to PTI leaders, PM Imran Khan was going to bring back the money in no time and in the words of Imran Khan himself this would result in a ten-year tax holiday, reduction in prices, creation of jobs, etc, etc. However, it took only a week into the new government for the myth to be laid to rest.
No one took responsibility for this incessantly repeated falsity and no one ever expressed regret over misleading the nation. The finance minister kicked the ball down to the accountability adviser who then kicked the ball further down the field.
(For all our expert financial and media experts who had been baying for the blood of politicians over the $200 billion, here’s a reality check. It is inconceivable that from a poor country like Pakistan where there aren’t even a dozen private jets there would be even a thousand accounts in Swiss banks. For there to be $200 billion held by Pakistanis, there would need to be an average of $200 million cash holding in each account. Not even billionaires, of which there are no more than ten in Pakistan, have this much money in cash. This myth would have died a death under the burden of its own implausibility had someone spent perhaps ten minutes thinking about this preposterous claim).
All of this brings me to the completely avoidable electricity loadshedding coupled with the massive gas shortages going on all over the country. I wrote about this last week in this space, saying that the crucial mistake was the government not procuring enough LNG to run all the available gas-fired plants.
This much is now apparent even to our ‘tabdeeli sarkar’. They first stopped the import of furnace oil (something our PML-N government had done last year but which for some inexplicable reason was restarted after we left). They are now scurrying about trying to import more LNG. Fortunately, both these are steps in the right direction.
But no one in the ‘tabdeeli sarkar’ is willing to accept responsibility for their failure and for causing the country perhaps a billion rupee per day extra loss due to using wasteful furnace oil plants and closing down factories.
First, the government set up a committee to find out if the MDs of Sui Southern and Sui Northern were responsible for not ordering LNG and causing gas and power shortages. This committee was headed by the Ogra chairperson, a woman who understands the gas sector as well as anyone else in the government. The committee exonerated the two MDs and explained, among other things, why the import of furnace oil had caused a decrease in the production of domestic gas.
The government was not happy with the report as it didn’t recommend what it wanted. So another report was ordered, this time under the petroleum secretary, the top bureaucrat in the sector. He too wrote a report largely exonerating the two MDs and blaming a lack of coordination among the ministries as the prime reason for not ordering enough LNG. But, perhaps understanding the mood of the government and the temperament of his own minister, he recommended that the MDs may be issued a warning to perform better and that there should be improved coordination between the power and petroleum ministries.
Winter loadshedding, however, is an embarrassing failure of the PTI government – and neither the prime minister nor his ministers are willing to accept the blame. So someone had to be made the scapegoat. Both the MDs were fired, even though neither report had recommended it.
When the petroleum minister was asked about the shortage he blamed – well, obviously – the previous PML-N government. When it was pointed out that the PML-N had left seven months ago, and that it had set up the infrastructure for the import and regasification of LNG, for transportation of gas and also sufficient power plants, he then egregiously blamed the two MDs. Yet from him not one word of contrition, much less an apology.
The power minister, however, had the grace to express regret that people are suffering from these power outages.
Sadly, however, no minister or the prime minister is taking responsibility for the great hardship caused to the people and the huge loss faced by the government and the economy.
And what does this say about the Kaptaan’s leadership? As an opposition member, I have always believed that PM Khan didn’t understand the complexities of governance, that he was too tolerant of his party’s shortcomings and that his unshakable belief about the PML-N being corrupt was not just self-serving but also plainly wrong.
However, like much of the nation, I always thought he would be a strong and decisive prime minister. Unfortunately, it is now becoming patently obvious that he’s not really the Imran Khan of the 1992 World Cup but more like a journeyman cricketer happy to keep his place at the top.