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Dawn Columns: 17.07.2019

Crisis of the judiciary

Updated July 17, 2019

THE Judge Arshad Malik saga is a tragicomedy. His affidavit submitted in the Islamabad High Court is being seen as a testimony of his compromised character. It also exposes the sad state of our lower judiciary and its apparent vulnerability to manipulation. In his statement, the judge confesses to being blackmailed and claims that the Sharif family tried to bribe him. 

But in a purported [alleged، مبینہ] video conversation, he reportedly talks about convicting the former prime minister under duress[دباو میں]. While the credibility of the video has yet to be established, Judge Malik did not deny talking to the persons in the video. The whole episode is scandalous. The judge may have been removed from the accountability court but no disciplinary action has been taken against him as yet. 

Surely the higher courts will decide his fate and the validity of his ruling in the graft case [پیسوں کی خرد برد کا کیس، کرپشن] against the former prime minister. However, it is not just a legal matter; the scandal has become an explosive political issue with both the opposition and the government trying to use the controversy against each other and engaging in a toxic blame game. The incident has brought into question the entire accountability process, given the alleged susceptibility [اثر قبول کرنے کی کمزوری] of judges to pressure from state elements and from the rich and powerful.

True, it’s not the first such case in our judicial history, but there is greater notoriety attached to it on account of it being a politically high-profile incident. The real issue related to the credibility of the entire judicial system has been lost in the cacophony [شور شرابا] of political point-scoring. The case of Judge Malik epitomises [اعلٰی ترین مثال بننا] the ugly face of our judicial system. 

The Judge Arshad Malik scandal has become an explosive political issue.

While the role of the establishment and executive in influencing judicial process is not unheard of here, power and money are also said to be used to bend the law, thus making a mockery of the idea of justice and a fair trial. There may be some talk of a controversial trial; there is also the question of why the Sharif family maintained contact with the accountability judge. 

It seems that Judge Malik was unaware he was being videotaped. The video was released by the PML-N. The inquiry into the affair could lead to more troubling information. Politicisation of the scandal has made things more complicated. It seems that all sides will be sullied[داغدار ہونا، تقصان اٹھانا]. 

It is often said that the independence of the judiciary and the notion of fair trial are myths. It is not only military regimes and the establishment that purportedly seek to control the judiciary; civilian governments and political parties are also accused of trying to manipulate the system for their own vested interests. 

There have been previous instances where the top court has been stormed; there have been allegations that some judges had been bribed and intimidated [خوفزدہ کیا جانا یا کرنا] and judgements dictated. Some judges alleged on record that the intelligence agencies openly influence the courts. It is not just about Judge Malik; it is also a crisis of the country’s judicial system. There are past examples of judges compromising the judiciary’s independence. Self-serving judicial activism and populism arguably damaged the sanctity of the apex court. 

Heralded as the ‘black coat revolution’, the lawyers movement of 2007 was an epic struggle. Although it started as a protest against the removal of then chief justice Iftikhar Chaudhry by Gen Pervez Musharraf, it soon turned into a movement for democracy. The movement drove a historic wedge between the judiciary and executive. It ended the decade-long military-led rule and helped return the country to the path of democracy. It was a historic moment when the chief justice and other judges of the superior judiciary were restored. The resistant judiciary promised to protect its independence and continue its march towards the establishment of the rule of law. But did those lofty ideals cloak[لبادہ پہن لینا] another set of interests? 

Ironically, it was Iftikhar Chaudhry, catapulted [جیسے کہ منجنیق میں رکھ کر پھینکا گیا ہو] to an iconic status during the struggle, who did the most damage to the apex judiciary after being restored. His populism and arrogance brought the judiciary on a collision course with the executive. He virtually tried to establish judicial despotism [آمریت، طاغوت] in clear negation of the basic principles. Some of his judgements cost his institution and the state dearly. His own integrity became questionable after allegations of financial misdeeds against his son. 

Some of his actions also threatened the independence of the judiciary. Nothing was done to reform the system. A number of lawyers and members of the bar who had been in the forefront of the resistance movement were also accused of being responsible for the regression. The so-called revolution turned into a nightmare. 

Some of the chief justices who succeeded Chaudhry did try to inject balance and sanity into the system. But their efforts were undermined by the last chief justice Saqib Nisar. His activism went far beyond that witnessed under Chaudhry, with no limits to his populism. His crowdfunding for dam construction became an embarrassment. His ambition to establish a legacy also compromised judicial independence. Allegations of intelligence agencies influencing the courts became more common. 

Justice Shaukat Siddiqui of the Islamabad High Court went public with his accusations against the ISI. He was known for his retrogressive [ماضی سے وابسطہ] views and some highly controversial judgements. A case of financial wrongdoing had been pending against him for some time. But there were concerns that he was removed soon after he made those allegations. 

Some normality seems to have returned to the superior court after Justice Nisar’s retirement but it will take time to reverse course. The judiciary cannot afford judges with populist agendas. Not only does this damage the judiciary, it also limits judges’ independence. 

The case of Judge Arshad Malik must not be seen in isolation. Judges like him are the product of a system where the judiciary is pulled into a vicious power game that compromises its independence. A tainted[داغدار] judiciary would be in danger of being seen as the biggest threat to the rule of law and democracy.

The writer is an author and journalist.


Twitter: @hidhussain

Published in Dawn, July 17th, 2019

Can opener

July 17, 2019

 ADMITTEDLY, a can opener may not be a priority for Pakistan; the said instrument is only used as an example to illustrate — pursuant to the joke wherein an economist assumed that he had a can opener on a deserted island.

Today, you don’t have to be a rocket scientist to understand leading economic thought; all it boils down to is, free markets and less and less government. Free markets, free trade in goods, services and free flow of currency are supposed to take care of all ills of the economy, in theory at least. Except, in real life, they do not!

Free markets, which substantially operate on the principle of the survival of the fittest, apparently have no solution for the downtrodden of society and to date capitalism struggles to address income inequality. Without the strong arm of the government to enforce and appropriate, the market cannot even operate, let alone correct itself automatically; essentially, without all else being theoretically kept constant, pure free market becomes entirely mythical. 

Further, nowhere in the world have free markets been a catalyst for a developing nation joining the ranks of the developed nations; in history, anytime that happened, protectionism was the driver, which was the underlying theme of an earlier article by the writer ‘Why it won’t work’ — that piece was surely not about who has done it or who is doing it! Everything is not political. 

We have probably forgotten how to make can openers.

One is open to debate on protectionism. However, with even America closing its markets to imports in recent times, to bring manufacturing back home, the chances of a convincing argument to the contrary are bleak. 

Economics argues that free floating currency and inflation-driven interest rates are supposed to make domestic products competitive and spur [آگے بڑھانا] savings. Except, that when you initially opened your markets to the world, the domestic can opener industry could not compete with the shinier and cheaper can openers, and eventually shut down. Now with a weaker currency, domestic can openers might have become cheaper, but unfortunately since the industry had shut down, we don’t make can openers anymore, in fact we have probably forgotten how to make them.

And there is no switch; you cannot suddenly start manufacturing can openers. Setting up a can opener factory can easily take three to four years in normal circumstances, with a lot of luck; developing nations do not generally rank very high on the ease of doing business index. So in the interim you will still need to import can openers at an exorbitant price; until someone starts manufacturing can openers locally.

Unfortunately that is easier said than done.

With a continuing trade deficit, and currency on a free float, a foreigner is rather unlikely to risk investing in a domestic can opener factory, unless he was guaranteed a 30 per cent dollar return by the state; the benchmark set by the power sector. Most likely even with that kind of guaranteed return he would probably stick to an assembly unit; like the automobile sector. 

Finally, irrespective of our affection for FDI, it is marginally better than imports; do compare FDI inflows with primary income deficit annually, a debate for another time. 

Unfortunately, however, the likelihood of a domestic investor risking capital is even more remote. At interest costs as high as 16pc and expected to rise further, and a weak currency, it may not be feasible to import the machinery for a can opener factory or to borrow for the domestic component; the bigger risk is that by the time the factory starts production, imported can openers are shinier and available at cheaper prices.

For the sake of argument, let’s assume that all these hurdles are overcome and we have a go at setting up a can opener factory; even then an international manufacturer of can openers will have the advantage of economies of scale, simply because of the size of the global market they cater too.

At this point the theory of comparative advantage is supposed to come into play; except, in the real world, the consumer is only concerned with price, and if the imported can opener is still cheaper and shinier, so be it, why would he worry about some dumb economic theory?

Controlling imports through tariff hikes or other direct measures perhaps is the sensible, rather only available option. Admit­tedly, WTO will be a pain; except considering our current account deficit, we cannot be forced to keep importing can openers, especially when even America resorts to tariffs.

The probability of our spoilt trading partners blackballing [رازداری سےمسترد کرنا] our exports is reasonably high as well; except why export if every time you do, you have to import twice as much? We really seem to be not good at trading. And we still have not manufactured a can opener! Can we?

We definitely can!

The writer is a chartered accountant based in Islamabad.


Published in Dawn, July 17th, 2019

Reading troubles

July 17, 2019

 THE good news is that a large number of Pakistani children (perhaps almost as many as those of developed countries) are enrolling in kindergarten. The bad news is that only a small percentage of these children remain in school. The terrible news is that of those who do remain in school, very few, only between four to 12 per cent of third graders, are actually able to read fluently while understanding most of the content. 

Where statistics for listening comprehension are concerned, few were able to answer the three questions asked in Urdu. “If they got one question correct, they would score 33.3pc for getting one out of three questions right. Across Pakistan, scores ranged from 19 to 32pc.”

The statistics were published in a recent report, Why Can’t Pakistani Children Read?, released by the American think tank the Wilson Centre and authored by researcher Nadia Naviwala. 

This bad news about education is not new to Pakistan. For many decades, little money was devoted to the country’s education budget. Prog­ram­mes were started and abandoned midway; improvements were piecemeal [characterized by unsystematic partial measures taken over a period of time، بے ترتیب اور بے ڈھنگے طریقے سے کیا گیا] at best. The new report indicates that the situation might have improved on some counts. Pakistan’s budgetary allocations for education have increased over the years, according to the study. Other funds have been pledged by international development organisations.

Sadly, the money that is spent is not producing educated Pakistani children — where ‘educated’ stands for the simple ability of being able to read.

In sum, what is not being taught and not being learned is not for lack of funds. While there is always room for more resources, it can be said that probably for the first time in Pakistan, money is actually being spent on education.

Sadly, the money that is spent is not producing educated Pakistani children — where ‘educated’ stands for the simple ability of being able to read. The well-researched report presents the contradictions, assumptions and failures of a hodge-podge system that, on the one hand, expects teachers to deliver, and on the other, doesn’t seem to have any real way of attending to the failures (such as children being unable to read a sentence in Urdu or English). 

One cause for this is the fact that children rarely learn the language they speak at home in the books they read at school. The consequence (you’ve guessed it) is a tendency to learn by rote or memorisation rather than actually learning to read and comprehend the written language. 

Even worse is the situation of English, reading it or understanding it while it is being spoken to them. Messy assumptions and deceptions rule in this case; for it is not just the children who cannot read, let alone understand the language, it is the teachers themselves who are not familiar with it. 

The report cites a survey that says “…94pc of teachers at English-medium private schools in Punjab did not speak English”. ‘English-medium’, the report finds, dangles[ترغیب دلانا] the possibility of upward mobility and access even while those supposed to teach it are pretending that they refer to the medium of instruction when all they are really referring to is the medium of textbooks. A pile of English-language textbooks then permits a school to call itself an English-medium school.

The report provides an in-depth and comprehensive (including a host of technical solutions and metrics) analysis of the issues observed in the over 100 classrooms which were surveyed. Reading it, however, one cannot but consider how all of Pakistan’s self-deceptions can be witnessed in the condition of its schoolgoing but uneducated children. 

In thousands of Pashto-speaking children’s inability to comprehend Urdu, lie seething issues of language supremacy — which language is a national language and which is a divisive one. In the eagerness (and self-sacrifice) of parents who cut corners and skip meals to send their children to an ‘English-medium’ school is the much-peddled lie that English opens doors, English signifies the possibility of greater things, a life that is less deficient than the one they have endured themselves. 

At the centre of reading ability is the issue of language politics. Locally relevant education and the use of local languages as the first language children are taught to read may be the answer to actually ensuring that they can read, but it prods and pokes at other delicate deceptions. The issues of which languages are the country’s ‘official’ languages, which are ‘unifying’ languages, which may be perceived as the means of division, are all open questions in Pakistan even as it gets ready to turn an elderly 72 years old. 

Attached to the language issue, is the issue of electoral politics that continues, more or less, to be attached to ethnicity. Should every province be granted complete freedom to decide which language is taught to its children? What will this do to the federal funds for schools?

But for now, the report on reading clearly shows that there is a cost to all these unanswered questions, of the class divisions that keep the poor aspiring without the rich ever delivering, and ethnicity and language attached to varying degrees of belonging in a country. 

The result shows itself in the country’s schools. Children go to school, and a lot of them do enrol, full of hope and expectation. In government schools, they are confronted with apathetic teachers (if they even choose to teach) and a curriculum that seems a world away from their own, unfamiliar words, sounds and expectations. 

Unsurprisingly, many stop going to school or are pulled out. Many of the lucky ones, those who do stay and stick with it, cannot accomplish one of the most basic functions of education ie to be able to read with comprehension. 

Unlike previous laments over the educational system, this one does not require the allocation of many billions more. Instead, it asks that the education bureaucracies that run these networks of state schools to consider the truth that they have almost completely failed to educate the children they hoped to teach.

The writer is an attorney teaching constitutional law and political philosophy.


Published in Dawn, July 17th, 2019

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