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یہ تمام کالمز ڈان اخبار سے یہاں تقل کئے گئے ہیں اور مشکل الفاظ کے معنی نووا سی ایس ایس اکیڈمی کے طلباء کی آسانی کیلئے شامل کئے گئے ہیں۔
Stability & Identity
Muhammad Amir RanaJune 30, 2019
WHILE its effects are palpably [جو صاف طور پر نظر آئے یا محسوس کیا جا سکے] visible in political and economic ambits[scope] , instability also adds to confusion and insecurities, and causes behavioural changes among individuals. It can even trigger crises of personal and social identities, which Pakistani power elites tend to confuse with external factors threatening our national security.
The current atmosphere of political and economic chaos is not new. Yet it presents the country’s renewed challenge to come out of its chronic instability[پرانی یا دائمی]. Apparently, the current political regime is also failing to bring some fresh approaches and new perspectives to cure our economic malaise [بیماری]. On the other hand, it is miserably struggling to sell an impression of stability to the people, who are enormously agonised[ ذہنی تکلیف مین ہونا] by the ongoing economic adjustments and corrections.
Anxiety kills the potential for productivity and creativity, so essential for the growth and development of state and society. The recent Quetta Literary Festival (QLF) reflected this growing anxiety among the intelligentsia and educated youth of Pakistan. For one, most discussions on the future of our state and society linked it to the prospective direction of Pakistan’s stability and identity.
Stability has always been the top priority of any state, because it also indicates that the state is functioning well. However, stability cannot be imposed; it comes as a natural outcome of coherent policies and actions of state institutions and cordial relations between state and society. Instability, nonetheless, triggers various types of insecurities among the state organs and segments of society. A sense of discrimination and humiliation[ذلت] not only compounds this problem but also aggravates[بدتر کردیا] identity crises among communities, particular those with problematic group histories.
Dignity and empowerment may be more important than economics or security.
The common Pakistani faces multiple levels of discrimination[امتیازی برتاو یا سلوک] at the hands of multiple actors and due to many factors. Some believe they are being discriminated against on the basis of their race, language, culture, facial appearance, faith or sect. Ethnic, religious and sectarian-based profiling[امتیازی شناخت] is common and often used by the state as well as majority ethnic, religious and sectarian groups. A study by an Islamabad-based think tank, titled Who Am I? A Study on Identity and Co-Existence in Pakistan, is reflective of debates at the QLF, indicating that while people of small federating units and/or ethno-religious minorities feel discrimination when interacting with public departments or state institutions, two factors in particular aggravate them. The first is linked with human dignity and the second with empowerment.
A significant majority of the study’s participants believed in human dignity more than economics or security, and asserted that it is one’s sense of dignity or lack thereof that develops identity. The dignity factor is relatively new, but has been developing along with securitisation over the last two decades, in the form of security check posts on highways, in urban areas, on campuses and in government departments.
The study also noted that most of the respondents from Balochistan, Khyber Pakhtunkhwa and the latter’s tribal districts had experienced some sort of humiliation at check posts, which they interpret as profiling. One can understand that these two provinces have suffered greatly from terrorism and insurgencies, which have added to their insecurity and sensitivity. Perhaps this is why security institutions have also worked on improving their social skills in recent years, to respect local sensitivities. However, it remains a major factor in the people’s increasing sense of insecurity and humiliation.
It was also noted that educated youth (especially in Balochistan, Sindh, KP’s tribal districts and Gilgit-Baltistan) feel less empowered in society. A big segment of youth, regardless of religious or education backgrounds, joined militant groups, not necessarily by falling for extremist or separatist ideologies, but because they were awed by the militants’ stature, and wanted to be seen the same way. The desire for power and prestige in their areas is so pronounced that these youngsters were suffering from a crisis of identity.
Similar factors can be identified in Pakistan’s identity politics, which is centred on group identities. Nationalist political and social movements want a broader sense of belonging and ownership in the system, which the power elites only share with a select group of cronies[احباب].
It is interesting that, in the majoritarian Punjab, a sense of cultural marginalisation is resurfacing. The Punjabi intelligentsia complains that, for the sake of national unity, it has sacrificed its cultural and ethnic identity. However, voices from other provinces feel that the Punjabi power elites should have adopted a federalist approach rather than emphasising a strong centre and creating uniformity. The federalist approach would have provided a better coherence among the federating units, and Punjab should also have not compromised its cultural background.
The debate on identity and stability cannot be complete without discussing the role of religion. The state and power elites still strongly believe that religion is the only factor that can glue the nation and, in this attempt, promote religiously inspired actors who follow their design. A variety of such actors are at the elites’ service; the latter choose and abandon them as needed. According to the study, using religion for national coherence is not only an inclination [رحجان]in Punjab; such voices’ power is gradually increasing in Sindh and Balochistan too.
One interesting finding of the study was about local-level problems and how people relate these with broader sociopolitical issues. The majority of respondents highlighted civic issues such as access to clean water, education, health, population management, traffic, etc. This was followed by issues related to personal liberties such as freedom of expression and physical security. Strikingly, many talked about local-level disputes in the shape of class differences or local mafias. However, the majority believed that even if the solutions to these day-to-day issues would not help resolve big issues such as an identity crisis, they support more freedom and sociopolitical securities for a better and healthier society and stable state.
Imposed uniformity cannot create lasting stability.
The writer is a security analyst.
Published in Dawn, June 30th, 2019
یہ تمام کالمز ڈان اخبار سے یہاں تقل کئے گئے ہیں اور مشکل الفاظ کے معنی نووا سی ایس ایس اکیڈمی کے طلباء کی آسانی کیلئے شامل کئے گئے ہیں۔
Column 2
Diluting provincial autonomy
Abdul Moiz JaferiiJune 30, 2019
BILAWAL Bhutto-Zardari, in a comprehensive critique of the federal government and its attitude towards parliament during the recent budget session, once again highlighted the order of transfer of the NICVD, the NICH and the JPMC to the federation by the Supreme Court.
The autonomy gained by the provinces after the passage of the 18th Amendment finds its most vocal critics in those who oppose the workings of the PPP-led Sindh government. As a result of the financial space the amendment created, it is argued that the Sindh government behaves in a totalitarian manner, depriving the local governments of their due share or inefficiently administrates the large amounts of money it now has at its disposal.
Recent Supreme Court decisions concerning the three hospitals located in Karachi and the reversion of those institutions to the federation reflect exactly this underlying sentiment, and have given rise to a debate amongst lawyers regarding the scheme and spirit of our Constitution. It is argued that provincial autonomy has been stripped away in favour of a stronger centre as a result of such judgements.
Lawyers supporting the transfer judgement have explained this interpretation of the Constitution going against its plain and expressed meaning by calling it ‘federalism’. They have created the same barriers to entry to the debate that Islamic scholars have done in the past with religion. You are uninformed about the subtleties [ حساس پیچیدگیاں]of the federal concept, hence incompetent to debate it. You are told to first read the history of the US and the federalist’s great use of its constitutional silences to develop a functioning and cohesive [باہم مربوط] unity.
Thinly veiled is the horror of the shrinking federal pie; it means less money for federally funded institutions.
Federalism, as taken from America, has a romantic history. It has roots in the idea of a progressive-minded minority taking the reins of a country otherwise owned and controlled by a regressive slave-owning elite. Cotton needed a backbreaking effort to harvest, and the slaves that the South so desperately wanted to own were forcibly made to execute this. Enter the federalists, the Hamiltons and the Lincolns, who put right these excesses through ingenious readings of the very bare document that was and is the American constitution.
The Pakistani use of the concept of federalism is to effect nearly the opposite outcome — a centralised and regressive minority seeking to prevent what it feels are childish, unprepared provincial governments from exercising autonomy. The excuse is that these provincial governments are run with less than bona fide intent, or by less-than-capable representatives.
Thinly veiled is the horror of the shrinking federal pie — less money for federally funded institutions and the resulting unacceptable accountability to localised and varied power structures.
The desire to do what’s best for the people drives the best of our public functionaries, including the honourable members of our Supreme Court. The rollback of the 18th Amendment, proving impossible due to a lack of parliamentary and cross-party support, is under way through a dilution by interpretation. In what started out as an interpretation of ‘trans-provincial’, where taxation of any authority operating in more than one province was held to be outside the scope of a single province, a series of judgements appear to have overridden the plain meaning of the Constitution.
Even though the subject of health is in the provincial domain, and the provinces are hence competent to exercise exclusive authority over it as clearly delineated in Article 97, the hospitals in dispute were taken away from Sindh on the premise [basis of an argument] that they fell under Entry 16 of the Federal Legislative List. The entry allows the federation to run institutes for the purposes of research, for professional or technical training or for the promotion of special studies.
What was held was simply this: because a (very small) part of the resources of the hospitals in dispute were used to conduct research as well as professional and technical training, the entry in the Federal Legislative List included them (the hospitals).
The predominant function of the hospitals providing health services to hundreds of thousands of patients, as succinctly [واضح طور پر] summarised in the dissent authored by Justice Maqbool Baqar, was ignored in favour of the ancillary [بنیادی اور اتنی جتنی کہ ضروری ہو]research opportunities and the chances of professional training these hospital services generated. It is akin to holding that a sugar mill operates mainly to produce ethanol from molasses.
These actions had landed in the Supreme Court courtesy of brilliant judges who think less as members of the apex court of the province, and more as functionaries of a subordinate court of the federation.
These judgements are much more agreeable because it’s so easy to know what’s good for the people of Sindh, which is where the fulcrum of the provincial autonomy challenge pivots. After all, they protect the people from a more autonomous Zardari. It’s almost the right thing to do.
Justice Baqar mentioned the Children’s Hospital, the Institute of Child Health, the Mayo Hospital and the Services Hospital located in Lahore. He highlighted the research and training that are similarly ancillary and ongoing in all the said hospitals without a federal desire to capture their resources from the government of Punjab. He highlighted the Post Graduate Medical Institute established by the KP government as a separate and independent body to the Lady Reading Hospital in Peshawar.
In summarising his searing [بہت زیادہ تنقیدی] critique of the expansion of the Federal Legislative List well beyond its meaning to a point where it overstepped the boundaries of the articles of the Constitution itself, Justice Baqar stated: “Disregarding the mandatory provisions of the Constitution and the categorical mandate prescribed thereunder would embolden and encourage those who are averse to the rule of law and have scant regard for the supremacy of law, thereby strengthening those who want to create dissension and discord in our national polity.”
The few educated and experienced seated in power must focus on the smallness of their number rather than the vastness of their wisdom. It takes a two-third parliamentary majority to undo our Constitution. It should not take any less to alter its plain meaning.
The writer is a lawyer, and the host of a television show.
Twitter: @jaferii
Published in Dawn, June 30th, 2019
یہ تمام کالمز ڈان اخبار سے یہاں تقل کئے گئے ہیں اور مشکل الفاظ کے معنی نووا سی ایس ایس اکیڈمی کے طلباء کی آسانی کیلئے شامل کئے گئے ہیں۔
Column 3
Rethinking Peca
Omer Imran MalikJune 30, 2019
SEEN as a tool for repressive [جو بنیادی آزادی کے حق کو دبا دے] governmental sanctions on online free speech by rights activists, the Pakistan Electronic Crimes Act (Peca) 2016 was bulldozed through parliament as it was considered necessary by the government of the time to address the inadequacy of Pakistan’s existing criminal legislation and legal system in dealing with new and emerging online threats.
Almost three years later, the federal government has moved to frame stringent[سخت] rules and amendments to make Peca even harsher against anti-state and fake news online. This move has come right after the parliamentary committee on human rights’ direction to the National Commission on Human Rights to suggest amendments to ensure the act is no longer a tool in the hands of the government or military establishment to stifle [گلا گھونٹ دینا] free speech and dissent[اختلاف]. While the federal law ministry and the NCHR race against time to propose workable amendments to be incorporated into the law by parliament, the elephant in the room needs to be addressed: is Peca even constitutionally valid?
According to many legal experts, many important provisions of Peca, which can be considered the linchpins[ضروری حصہ] of the entire legislation, are violative of the Constitution, and thus it should be struck down as an unconstitutional piece of legislation. To understand why, one need only look at the two major functions of the act, both of which are facially unconstitutional.
Firstly, Peca criminalises certain online conduct and then it provides special procedures for the prosecution and trial of these offences before a specific forum and prescribes special sentences for these offences. However, many of the criminal offences provided by Peca are unconstitutional and liable to be struck down because they criminalise conduct which is already criminalised by other special criminal statutes. Examples of this are the provisions on cyberterrorism and online hate speech provided under Peca: these offences are already criminalised under the Anti-Terrorism Act, 1997, which provides its own specialised procedures, sentences and forum for trial and conviction.
Is the cyberlaw even constitutionally valid?
Our Supreme Court in Syed Mushahid Shah v. Federal Investment Agency, which is reported as 2017 SCMR 1218, unanimously held that where two criminal statutes enjoy concurrent [واقعات جوکہ ایک ہی وقت پر ہوں] jurisdiction over the accused for criminalising the same conduct and provide different forums, procedures and punishments for the offence, they are liable to be struck down as this is discriminatory and in violation of the accused person’s right to be treated equally under the law as per Article 4 of the Constitution.
The second function of Peca is that it provides the federal government the power to remove unlawful online data from cyberspace. Peca empowers the Pakistan Telecommunication Authority (PTA) to receive complaints and independently determine if content which is being complained about is liable to be removed if, among other grounds, the authority considers the content to be prejudicial to “the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, public order, decency or morality”.
On closer analysis however, it is clear that the power granted to the PTA under Peca to decide which content is lawful or not is liable to be struck down as it violates Article 19 of the Constitution which guarantees the right to freedom of speech and expression subject to reasonable restrictions imposed by law on seven enumerated subjects. It is well understood that Pakistan’s parliament is the only body which is empowered to make laws under our constitutional scheme and while parliament may allow authorities to create sub-delegated legislation, it cannot excessively delegate its functions.
This view is fortified [تقویت ملنا، استحکام ملنا] by the ruling of the Supreme Court in Pakistan Tobacco Company v. Government of NWFP, which is reported as PLD 2002 SC 460, where it was held that the legislature cannot delegate essential legislative functions to the executive, especially without providing guiding principles. Therefore, any law which provides for specific content based restrictions to limit the exercise of the fundamental right of free speech must necessarily be made by parliament and it cannot be simply sub-delegated to an executive authority such as the PTA.
A cybercrime law is essential for the protection of Pakistani citizens’ rights and interests in the arena of cyberspace. Thus it is the need of the hour for parliament to make Peca compliant with the stringent requirements of our Constitution so that it can survive judicial scrutiny. The current attempts of the federal government to make the law stricter and NCHR’s attempt to make it less strict would both be an exercise in futility if parliament does not deal with the unconstitutionality of Peca first and foremost.
The writer is a human rights lawyer working at the Law and Policy Chambers in Islamabad.
omerimranmalik@gmail.com
Published in Dawn, June 30th, 2019
Column 4
Ransacking privacy
Waqas YounasJune 30, 2019یہ تمام کالمز ڈان اخبار سے یہاں تقل کئے گئے ہیں اور مشکل الفاظ کے معنی نووا سی ایس ایس اکیڈمی کے طلباء کی آسانی کیلئے شامل کئے گئے ہیں۔
RECENTLY, in order to raise tax awareness, FBR and Nadra launched the tax-profiling system (TFP). According to its website, the “FBR Tax Profiling System allows the citizens to view their profile created by correlating their data from multiple data sources of assets, expenses, and lifestyles available with the Government of Pakistan”. It contains the data of 53 million citizens.
Accumulation of personal data online on a massive scale by the state while disregarding citizens’ privacy needs review. It can lead to the loss or manipulation [کسی چیز کو اپنے فائدہ کیلئے چالاکی سے استعمال کرنا] of private information, and inequality. Digital space that disregards privacy casts an impression of a surveillance [نگرانی کرنیوالا] regime. The book Code Version 2.0 by Lawrence Lessig, a law professor at Harvard, provides some key insights.
According to Lessig, citizens’ behaviour can be regulated using four constraints, namely, laws, market, architecture, and social norms. Take robbery as an example: laws regulate this by penalising people who commit robbery. Market behaviour can be regulated through, for example, pricing mechanisms or by subsidising companies that create security products. As for architecture, communities and buildings are built following architectural guidelines that provide protection against robberies. Lastly, because of social norms, robbery is not considered respectable. Mayhem [social disorder] may ensue [start after an event] if these constraints, in fair proportion, are not in place.
These constraints can be applied to see how behaviour around privacy is being regulated in our country. Let us start with laws. We do not have digital data protection laws in place. So, the right to digital privacy is not established. This incentivises individuals, companies, and governments to consider privacy as an afterthought. No enforced laws can lead to data theft, buying or selling of data, manipulation, and disregard of privacy policies.
TFP data can be misused to increase inequality.
Data theft and sale or purchase of data is problematic on several levels. Data stored by TFP is a goldmine. An exposed wallet is a salesman’s dream. So in the case of theft of a rich data set, companies can manipulate consumer behaviour.
In the absence of suitable laws, the data stored by TFP can be used to increase inequality. TFP information can be used to define citizens’ social hierarchy. Based on such information, certain services or transactions can be denied to some social classes while giving privileged access to others, thus further widening inequality.
Due to lack of focus on privacy laws, vendors ignore publishing privacy policies. A good privacy policy would shed light on how data is collected, stored and shared. Surprisingly, TFP does not come with a privacy policy. In the absence of the latter, important privacy information about personal data used by TFP is not available. This shows privacy is not a priority at any level.
Privacy is not regulated through the market, either. Pricing mechanisms and subsidies for companies that take digital privacy seriously are not being used. Privacy is not a concern for vendors competing in the market.
Social norms around privacy in our country leave much to be desired. This is observed daily on social media. No educational programmes around privacy are in place. Even computer science graduates, graduating from local institutes, are not technically well equipped with a strong knowledge of privacy.
Now to architecture. In the digital world, architecture is the code (software and hardware) used by the digital application. Therefore, this constraint raises the most pertinent privacy questions for us. It raises questions such as how the software has been written, reviewed, tested, hosted and deployed. What hardware is being used? How is personal data stored, where it is stored, how does it flow in the application, who has access to it, and is it encrypted or stored in plain text? What happens in case of a system breach? Did we conduct a security audit? What is being logged by the software? Much of this, we do not know with regard to the TFP.
Out of the four constraints, it appears that, right now, privacy is only being regulated using code — giving much regulatory power to the government. This gives an impression of a surveillance regime.
Our government must make use of the four constraints, with minimum costs to citizens. Policymakers should answer privacy questions to eliminate the impression of a surveillance regime. Otherwise, millions will remain vulnerable[one who can be harmed] to theft, manipulation, inequality, and fear.
Regulations have been passed in other countries that establish the right to privacy, to access their personal data, to be forgotten (so they can ask vendors to remove their data), to appoint data protection officers (apparently Nadra does not have one), to educate citizens. Those countries regulate privacy through the fair use of laws, market, social norms and architecture. We should also do so before it is too late.
The writer is a freelance contributor based in Lahore.
wyounas@lumsalumni.pk
Published in Dawn, June 30th, 2019
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