Bad blood trumps Bollywood
Oh! The Qureshi-Krishna divide… why add masala to a soufflé that stubbornly fails to rise?
By Jyoti Malhotra
Growing up in the small, mining towns across India, in the simple, frugal lifestyle that was a habit, not an exception – "recycling" for example, was not a phenomenon associated with the hard-nosed give-and-take on climate change between small and big powers, but a fact of life where absolutely nothing was thrown away, but used and reused – Bollywood songs intruded even into the most quotidian of moments.

Collective genius
TEDxLahore returns to share some great ideas
By Jazib Zahir
A quarter of a century ago, a pioneering conference was held in California. Some of the greatest minds of the day working on problems of social and economic significance presented their magic on stage for scores of people to appreciate.

A political catch
Taking cue from the Indian Supreme Court, civil society here has decided to make a plea to the apex court to release Indian fishermen
By Shujauddin Qureshi
For Kantilal, it was unbelievable that after four-year imprisonment in the Malir District Jail of Karachi, he was talking to his uncle, an influential political figure and President of ruling Congress Party in his home district in Gujarat, India. The 33-year-old Kantilal, an Indian fisherman and captain of his boat, Dakshini, was arrested by the Pakistan Maritime Security Agency in 2006 along with his four fellow crew members while fishing in open sea near the disputed Sir Creek. Since then, he has no communication with his family. Kantilal said he had written letters to his family through the jail post, but has not received any reply.

Judicialisation of politics
The conundrum faced by the judiciary in Pakistan which derives its strength from two opposing sources of power
By Faisal Siddiqi
The constant and growing penetration of judicial power into the realm of political, social, cultural, economic and even foreign policy issues remains a burning subject. The supporters of this current role of the superior judiciary think that this will lead to better democratic and constitutional governance. The opponents see this as the judicial dictation of politics. What both agree on is the fact that this expanded role of the superior judiciary is leading to the phenomenon of the judicialisation of society and politics in contemporary Pakistan.

Burqa ban
Only 400 burqa-clad women have challenged the secular credibilty of France
By Ammar Ali Jan
In recent months, the issue of Muslim religious symbols has gripped the European imagination. The French and Belgian parliaments have passed legislation banning the burqa, while earlier Swiss voters voted in favour of a proposal banning the construction of minarets on mosques in Switzerland. A vocal anti-Islam Dutch MP, Geert Wilders, has gone a little step further, calling on European governments to ban all mosques from Europe and place strict restrictions on immigration from Muslim countries.

 

 

After Habib Jalib

Balochistan appears in the media only after death and destruction

By Alia Amirali

When I was asked to do a write-up on 'Balochistan after Habib Jalib's assassination', I found cynicism bubbling up inside of me. Balochistan appears in the media only after death and destruction. Moreover, the loss of life has to be accompanied by violence and destruction for those outside of Balochistan to notice it. If Maula Bakhsh Dashti's assassination -- a central figure of the National Party who few outside of Balochistan are familiar with -- had been followed by violent protests (which to the National Party's credit, it was not) we may have given it more than the minimal attention it received.

I do not like lumping Maula Bakhsh and Jalib together, since they are distinct individuals with their own personal histories, but they did have some things in common. Apart from belonging to the pro-federation camp of Baloch nationalists, Maula Bakhsh and Habib Jalib were political animals to the core. They invested their entire lives, right from their student days, in anti-establishment, anti-feudal and pro-people politics. They were humble, self-made individuals. People (including many political opponents) respected them. The respect they were given was based not on traditional sources of prestige, but on their commitment to pro-people politics. They faced harsh political opposition from the young Baloch generation and from pro-independence nationalists on the one hand and were considered 'anti-state', 'subversive' and 'communist' by the establishment on the other. However, different ideologues may construe it, these two people laid down their lives -- like Akbar Bugti, Balaach Marri, Ghulam Mohammad, and thousands of Baloch political workers, students, and ordinary Baloch men and women -- for what they thought was right.

In one sense, Balochistan is very much the same as it was before the assassination of Jalib and Maula Bakhsh Dashti. (For those who do not know, Maula Bakhsh was assassinated in Turbat, his hometown, two days before Jalib was murdered). In the wake of these two assassinations, Balochistan is bleeding once more as it was bleeding before July 14 (when Jalib was murdered) in the form of a long series of assassinations, abductions, torture, violence and uncertainty.

In another sense, Balochistan is different after the murders of Jalib and Dashti. This is the first instance in which the 'moderate' nationalists -- those who are pro-federation in the sense that they do not think an independent Baloch state and armed struggle are currently a viable option for the Baloch -- have been targeted. Speculation is rife about who killed them, if it was the same forces responsible for both incidents, the possible motivations behind the murders. Who was behind the murders is something that only a select few will ever know, so it is futile to continue speculating. Instead of playing cops-and-robbers, which is a convenient way for us to side-step the core issues which have led to the present state of affairs in Balochistan, I believe it would be more fruitful to look at the backdrop against which these incidents have taken place and to focus on our responsibilities as people in the current scenario, not those of the Baloch nationalists or of the State.

The history of the colonization of Balochistan is too long to recount in a few paragraphs. Suffice it to say that the Balochistan-Federation relationship has been similar in its nature to that between East Pakistan and the State (West Pakistan) before the creation of Bangladesh. The State's use of military force, economic exploitation, cultural imperialism and political suppression in Balochistan is reminiscent of all the ingredients that went into creating the Bengalis' desire for separation. Just as our generals would boast in 1971 of being on the brink of victory (where ironically, the enemy was its own people as it is today), so too the military men of today speak of 'crushing' a few hundred 'angry' Baloch hiding in the mountains within days if they so wanted.

But this is not the 1970s. The last decade in particular has seen important changes in the character of Baloch resistance. The resistance is no longer tribal and is moving towards acquiring a national character. Educated young men are taking to the hills, using technology and the media as tools of power. Moreover, the resistance exists not only in the hills, but in the hearts and minds of the new Baloch generation.

But, perhaps, the most powerful agent of change in Baloch society has been the arrogance of the Pakistani state and its ruthlessness in trying to crush any resistance that may emerge against it. It should be remembered that the thousands of Baloch men and women, political workers and students who have been abducted, tortured and probably killed by the military and intelligence agencies, have brothers, sisters, mothers, fathers, sons and daughters who have waited for them, grieved for them. There are no basic facilities in the largest province of this country -- no gas in the very districts which supply it to our homes, no running water in the scorching desert heat, no roads except those needed by the military. That is why in the schools, Baloch children don't sing the Pakistani national anthem, they sing 'Ma Chukki Balochani' (I'm a child of Balochistan). They don't consider Mohammad Ali Jinnah their hero, their heroes are Balaach Marri, Brahmdagh Bugti, Allah Nazar.

The Baloch people, not sardars or tribes, are at war with the State. The best testimony to this can be seen in the plight of military officers serving in Balochistan who are bunkered into their cantonments and cannot leave without taking the strictest security measures. Their families cannot go to marketplaces or parks or interact in the public sphere like normal citizens. Many Punjabi teachers and government officials have left Balochistan, and those who remain feel unsafe. The 14th of August is a Black Day in Balochistan, not Independence Day. You won't see the Pakistani flag flying on rooftops or even on most government buildings. This cannot be the handiwork of 'a few hundred guerrillas'. It is the response of an entire nation which has been utterly dispossessed and which has seen other nations progress at, what it can only construe as, its expense.

Regardless of our individual points of view on the matter, we need to recognise a simple reality first and foremost: the Baloch feel like a colonized people, whether or not you or I agree that they are so. Perhaps this realisation will help us see what is happening in Baloch society, in their families and homes, in their minds and hearts. And, perhaps, if we do that, we will not waste our time on conspiracy theories revolving around questions of who-killed-who and which countries and agencies are fomenting 'anti-state activities' in Balochistan. If we are able to understand the Baloch psyche, our heads will drop in shame at the realisation that it is our country, our military, and of course our silence, which is primarily (though not solely) responsible for what is happening in Balochistan today. Our responsibility in the present scenario is not to be the criminal investigators or the arbiters of justice. Our responsibility is, as the people of Pakistan, to oppose the colonial domination of Balochistan and accept the wishes of our Baloch brethren, whatever those wishes may be. The State will never do this, but we -- the people -- can.

Bad blood trumps Bollywood

Oh! The Qureshi-Krishna divide… why add masala to a soufflé that stubbornly fails to rise?

By Jyoti Malhotra

Growing up in the small, mining towns across India, in the simple, frugal lifestyle that was a habit, not an exception – "recycling" for example, was not a phenomenon associated with the hard-nosed give-and-take on climate change between small and big powers, but a fact of life where absolutely nothing was thrown away, but used and reused – Bollywood songs intruded even into the most quotidian of moments.

It was the radio transistor, of course, that was responsible. Hung carelessly on the handle-bars of miners' cycles as they cycled to work, placed carefully on the side of 'paan' shops as we hung around buying sweet cigarettes, distinctly marking the quarters of the day with morning devotional music, hourly English news bulletins from women with smoky voices and rounding off the night with 'Binaca Geet Mala'.

(Delhi seemed so far away, then, it was probably irrelevant anyway to the lives of my large family of sisters and brothers. Pakistan, on the other hand, was a much more immediate presence -- both my parents were "refugees" from the west Punjab -- and names like Lahore and Gujranwala and Isakhel were like second skin.)

There were so many punch lines those days in the radio music, certainly one for every tacky denouement that spins out in real life these days -- just like the failed conclusion in the India-Pakistan talks last week. You couldn't help wondering if some of the anger was faked when Qureshi and Krishna talked -- or didn't -- or whether other emotions churned beneath other placid exteriors.

'Baar baar tohe kya samjhaaye…" goes the opening line of a song from 'Arti,' 1962, a film that dates me, of course. It could be the theme song of the Krishna-Qureshi non-starter last week.

Actually, the punch line from the same song is, 'Tere bin saajan laage nahin jiya hamaar…', very much part of the 'Braj' tradition from which Hindi film music (it was definitely not called 'Bollywood' then) was still sourced. Meena Kumari, her large, lustrous eyes speaking a thousand words, sings the song to Pradeep Kumar, in black-and-white, around a tree. For all those whose governments have banned music, movies, books, luckily, there's always YouTube.

Now you know where 'Tere Bin Laden' gets its many hundred connotations from, enough to make a hit out of a potboiler-cum-spoof. So what if it's not being allowed to be shown in Pakistan, even if the hero, Ali Zafar the pop-singer, is Pakistani in name, nationality and spirit. There is first of all the hum in the subconscious from its similar-syllabic 1962 hit number, then there's the AR Rehman 'tere bina be-suaadi ratiyaan…'

'Tere bin…'must be the most evocative line in the entire subcontinent, in any language (and god knows, we have a few). So when Abhishek Varma and Ali Zafar, one Indian and one Pakistani get together to spoof the world's most dangerous man, Osama bin Laden, you know you have a masterpiece on your hands.

Anyone who can make a movie with a song called 'Ullu da patha', something all Punjabis living on both sides of the Qureshi-Krishna divide know doesn't mean "son of the owl", has my total respect.

I haven't seen the movie yet, and I almost don't want to. It was released the day after Qureshi and Krishna decided that India-Pakistan, that conjoined, terrible twin, can wait to grow up another day. It should have stolen the limelight across the Indus, considering Ali Zafar had so helpfully removed 'Laden' from the movie's title for its release in Pakistan, reducing it to its still-evocative "Tere bin…", two words that can always mean anything and everything in any language.

One of the reasons TBL is such an evocative movie is, of course, because it is everyone's story, not only that of the Karachi man desperate to get to America, whose visa is turned down time and again, until he hits upon the sure-fire way: He finds an Osama look-alike, shoots a video of him and sends it to the western TV channels.

But censors are spoil-sports, they probably still hanker after their mother's love and their father's leniency. But why take the fun out of our lives? During the day we deal with terrorists stealing our souls from the Data Darbar in Lahore, damaging our hard-built symbols of the present in the Chhatrapati Shivaji train station in Mumbai and our entrepreneurial spirit in the Taj/Oberoi/Marriott hotels, our temples and our mosques.

In the evening, there's the huge disappointment of failed talks between India-Pakistan to deal with. Why add 'masala' to a soufflé that stubbornly fails to rise?

Which is why Qureshi's criticism of Krishna the morning after was not only an angry afterthought, it was also discourteous -- a primary sin in our part of the world. If both sides had left it as it was the night before, agreeing to go their respective ways, it would have been fine. After all, we've seen this kind of behaviour several times before.

Ask any diplomat worth his/her salt and they will tell you that messages between the home country and its representatives during discussions are par for the. course. If India's high commissioner Sharad Sabharwal received two calls from Delhi on his cellphone during the negotiations – a small group was poring over the language of what they would announce at the press conference later that evening – it was certainly not an extraordinary event.

In fact, Qureshi himself offered that he and his delegation would leave the room when Sabharwal received those two calls, so as not to inconvenience the Indian delegation. The small group were negotiating in his room in the Foreign Office, and he said, let them sit here and talk to Delhi in private, we can easily step out.

So why did Qureshi, the suave, dapper and sophisticated face of Pakistan, use the discourteous words he did the morning after? That's the question of the day to think about.

Meanwhile, in Karachi, Kabul and Kolkata, doubtless 'Tere bin Laden' is doing the feverish rounds of genuine sound-tracks and pirated DVDs. Perhaps it's the "parde ke peechhe" effect.

Perhaps its time to replay 'Amar, Akbar, Anthony', an effortlessly secular movie-message if there was one. 'Parda-nashin ko be-parda kar doon toh?" asks Akbar, alias Rishi Kapoor, when the father of his love-interest tries to keep the girl out of Akbar's line of sight. So many secrets would come tumbling out, he warns.

It's a good line to remember, especially across the India-Pakistan firmament.

The writer is a senior journalist based in New Delhi.

 

Collective genius

TEDxLahore returns to share some great ideas

By Jazib Zahir

A quarter of a century ago, a pioneering conference was held in California. Some of the greatest minds of the day working on problems of social and economic significance presented their magic on stage for scores of people to appreciate.

This was the first TED (Technology, Entertainment and Design) conference. TED started out as an annual event in California which later led to the TEDGlobal Conference in Oxford. Seeing the success of TEDTalks and TED's appeal the TEDx programme was launched which has spawned a whole plethora of such events around the world. The TEDx banner allows independent groups around the globe to arrange TED-like conferences as a way to honor genius within their community. All these talks are archived on the TEDx Youtube channel ensuring that this wealth is immortalised in the public domain.

An enthusiastic group of students and professionals has been working feverishly over the last few months to put together the second TEDxLahore. Under the leadership of co-curators Asim Fayaz of LUMS and Areej Mehdi of Kinnaird College, the event has generated significant buzz and promises to be a big hit. The big day is coming on July 31 when the curtain goes up at Ali Institute.

The core attraction of the event is the speaker line-up. The cast includes some familiar faces like economist Dr. Nadeem-ul-Haque of the Planning Commission and environmental lawyer Rafay Alam. But there are plenty of intriguing newcomers too. Mudassir Zia may be a graduate of the University of Engineering and Technology, but he has stories to share of devoting his life to social causes, not the least of which is his current commitment to an English medium school for the underprivileged. Dr. Zeeshan-ul-Hassan Usmani has been drawing attention for his work on simulations of suicide attacks and will be someone to watch out for.

There are 14 speakers in total and all are planning talks accompanied by audio-visual aids to be delivered across in ten minutes or so. The process of collecting speakers was rigorous and the key to the planning of the event. While the organising team welcomed open nominations from outsiders, the final list was developed through consensus to identify people who were really associated with great ideas that were ripe to be shared with the world at large.

In addition to the galaxy of speakers, the show promises to be lit up by musical performances and short films. It is no wonder that hundreds of Lahoris have been itching to book themselves a spot in the audience. Those who wish to attend have been guided towards the website where they fill out a form justifying their selection as a member of the select audience. This ensures that people with genuine interest in the TED ideology earn a seat in the crowd. It is expected that the final audience will represent students, educationists, housewives and entrepreneurs among others. Those who don't make the cut will still be able to watch the event live online or by joining live viewing parties organised around the county.

TEDxLahore is also distinguished by its copious use of blogs, Twitter and Facebook to spread its message. The website itself updates in real-time with updates from the cell phones of volunteers and general well wishers. There is little doubt that all these channels will continue to resonate through the event and for weeks to come as the community continues to exchange views. The event is thus a wonderful showcase of the democratic and vibrant voice of the nation.

The TEDxLahore team comprises individuals who have parceled time out of their busy working schedules to put on the show. While the group includes artists, environmentalists and engineers, all are united in a passion for great ideas and sharing them with the community. Individuals like Nuzhat Saadia Siddiqui, Khurram Siddiqi, Minahil Zafar, Mustafa Hussain, Omer Khalid, Bilal Rashid and Tajdar Chaudhry have taken it upon themselves to make the TEDxLahore 2010 conference a success. With their passion and energy, it is little surprise that they have managed to recruit scores of enthusiastic volunteers across the educational institutions of Lahore. Frequent meetings are held at hotspots like Gloria Jean's to go over logistics, marketing and speaker training.

But the hours of frustration and dedication will soon come to fruition. The participants of the event have much to look forward to. Besides the dazzling speakers and performance there is much associated with the TEDx tradition to make it a memorable experience for the audience. All visitors will be provided an elegant event booklet which will allow them to always have details of the programme on hand. A special gift bag has also been planned for the participants so they will be able to carry memories of the event with them forever.

TEDxLahore continues to gain momentum and is expected to become an even grander event over the years. Many will be a part of this grand occasion and many will realise that Pakistanis have much to share with the world.

The writer is a volunteer in arranging the conference.

 

 

A political catch

Taking cue from the Indian Supreme Court, civil society here has decided to make a plea to the apex court to release Indian fishermen

By Shujauddin Qureshi

For Kantilal, it was unbelievable that after four-year imprisonment in the Malir District Jail of Karachi, he was talking to his uncle, an influential political figure and President of ruling Congress Party in his home district in Gujarat, India. The 33-year-old Kantilal, an Indian fisherman and captain of his boat, Dakshini, was arrested by the Pakistan Maritime Security Agency in 2006 along with his four fellow crew members while fishing in open sea near the disputed Sir Creek. Since then, he has no communication with his family. Kantilal said he had written letters to his family through the jail post, but has not received any reply.

A leader of all the Indian inmate fishermen in Malir Jail, Kantilal opted to talk to his uncle first instead of speaking to his wife or three children just to request his uncle to use his political influence to get him released from this jail. His subsequent call at his home phone number, unfortunately remained unattended.

Awarded a six-month sentence by a local magistrate three years back, Kantilal is still languishing in Malir Jail because both India and Pakistan have stopped exchange of each other’s fishermen after the Mumbai terrorist attacks in late 2008. A total of 582 Indian fishermen are stuck in four jails of Sindh at Malir District Jail (Karachi), Nara Jail (Hyderabad), District Jail (Badin) and District Jail (Naushehro Feroz). Majority of Indian fishermen are detained without any trial, while others who were sentenced have completed their terms, but are still waiting for release due to absence of any mechanism to release the ‘enemy-country’s’ citizens.

About 150 Pakistani fishermen are also detained in various jails of India waiting to be released in a ‘tit-for-tat’ deal. Under Pakistani laws, prisoners who have completed their terms could be detained only for the next three months. However, after expiry of that period, either the prisoners should be freed or the government has to seek permission from the Supreme Court review board for further detention.

Former Supreme Court judge chief justice of Sindh High Court, Justice (Retd) Nasir Aslam Zahid, expressed his astonishment over how the Supreme Court review board could give extensions for years.

It is practically impossible for a jail inmate to talk to his relatives on telephone as no system is in place for such a communication in the well-guarded prisons of Pakistan. But Kantilal and six others were fortunate enough to talk to their families after many years.

A delegation of some civil society organisations visited the Malir District Jail to get the signatures of Indian fishermen on the Vakalatnama to be used for a petition being filed in the Supreme Court of Pakistan to release the detained Indian fishermen who have completed their terms in jail or are kept in the jails without any trial. Civil society organisations of both India and Pakistan decided in April this year to approach the Supreme Courts of the respective countries for release of detained fishermen.

The Supreme Court of India had already given a directive on March 8, 2010, that 17 Pakistani prisoners, who have completed their jail terms in India, be released forthwith. On the basis of that almost revolutionary judgment, Pakistani civil society has decided to make a plea in the Supreme Court of Pakistan to order the release of all Indian fishermen. The Sindh Minister for Prisons, Haji Muzaffar Shujrah, had granted special permission to the civil society organisations of Pakistan to visit Malir Jail to get signatures of Indian fishermen on legal documents.

Pakistan Fisherfolk Forum (PFF), a representative organisation of Pakistani fishermen, along with Pakistan Institute of Labour Education and Research (PILER) and Legal Aid Committee headed by Justice (Retd) Nasir Aslam Zahid, plan to file a petition in the Supreme Court of Pakistan through senior lawyers and Co-Chairperson Human Rights Commission of Pakistan Syed Iqbal Haider.

The jailer at the Malir Jail was initially puzzled when one of the visiting delegates, Karamat Ali, Executive Director PILER, requested him to allow some fishermen to talk to their families in India on his international roaming cell phone. The jailer did not find any excuse to refuse the request, but said he had to get the permission from his incharge, who was kind enough to grant it.

It was a moving scene when about six detained Indian fishermen were speaking to their family members in Gujarati, Katchi and other native languages to share their plights. Twelve fishermen had signed Vakalatnamas, but some of them even did not have telephone numbers of their relatives.

Although these fishermen are getting some facilities including medical help and food according to jail manuals, none of them have any facility to communicate with their families. There is no mention of telephonic conversations with the family in the decades old Pakistani jail manuals. Many had even not received counselling which is mandatory for foreign inmates. These fishermen, most of them illiterate, can only send letters through inland postal systems, but it is often an inefficient mode of communication as their letters do not reach their destinations. "We need clothes, chappal, soaps and hair oil," said Daya, another fisherman when asked about their immediate needs.

Although some civil society organisations provide clothes and other necessary items to Indian fishermen, these items sometimes remain insufficient.

It is a pity that both Pakistan and India have been arresting each other’s fishermen from non-demarcated borders in the waters of the Arabian Sea. "Whoever gets the chance to find the enemy country’s boats in the open sea while fishing, they arrest the fishermen and confiscate the catch and the boats," said Mohammad Ali Shah, Chairman of Pakistan Fisherfolk Forum. Even if the fishermen are released after a deal between the two countries to get political mileage, the boats are not handed over to owners. This causes huge economic loss to the fishermen of both countries.

The fishermen’s organisations of both India and Pakistan have been demanding settlement of the disputed Sir Creek, clear demarcation and stopping arrest of each other’s fishermen. But navies of both the neighbouring countries are still engaged in arresting each other’s fishermen to settle their scores.

Moreover, he said, this convention, which has been signed and ratified by both Pakistan and India, states: "Coastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment." In cases of arrest or detention of foreign vessels the coastal state shall promptly notify the flag State, through appropriate channels, of the action taken and of any penalties subsequently imposed.

caption

Waiting for their due release.

 

 

Judicialisation of politics

The conundrum faced by the judiciary in Pakistan which derives its strength from two opposing sources of power

By Faisal Siddiqi

The constant and growing penetration of judicial power into the realm of political, social, cultural, economic and even foreign policy issues remains a burning subject. The supporters of this current role of the superior judiciary think that this will lead to better democratic and constitutional governance. The opponents see this as the judicial dictation of politics. What both agree on is the fact that this expanded role of the superior judiciary is leading to the phenomenon of the judicialisation of society and politics in contemporary Pakistan.

Whether judged good or bad, our experience regarding the judicialisation of society and politics is not unique. The US Supreme Court has engaged in this judicialisation phenomenon at least since the Chief Justiceship of Earl Warren (1953-1969) whereas, the Indian Supreme Court has taken it to new constitutional heights since 1978.

The US Supreme Court judgment in the ‘Brown Versus Board of Education’ case (1954) ended the legal debate on racial segregation, and, in effect, played a critical role in bringing to an end the formal racial segregation against blacks in America. Since then, the US courts have never looked back and have gone on to decide numerous social, cultural, economic and political issues facing American state and society. Whether, it is issues of poverty, welfare rights, abortion, gender discrimination, gay rights, environmental regulation, political corruption, campaign finance, budget deficits, prisons, mental institutions, health issues, foreign policy issues in relation to the rights of enemy combatants in Guantanamo Bay, presidential elections or presidential prerogatives, the US courts have adjudicated upon all these issues and their judicial interventions have been decisive at times.

Moreover, since the times of Chief Justice Earl Warren, both liberal and centrist judges of the US Supreme Court have never hidden their role as social engineers in society and, like the Pakistani Supreme Court, the US Supreme Court judges have also been constantly accused of being social activists and politicians in judicial robes.

The main reasons for this judicialisation of society and politics in the US are as follows. First, the crisis of governance in US politics, especially in the 1960s and 1970s, resulted in the interventions by the courts in order to deal with a lot of these societal and political issues. Second, through these judicial interventions, the courts were trying to create social relevance and legitimacy for the judiciary in a changing American society. Third, it was believed that the courts could supplement politics, and law was preferable to political mobilisation and compromise because the legal system was perceived as more efficient, transparent and just than the political system.

Close to home, since 1978, the Indian Supreme Court has more or less abandoned its traditional role of a mere interpreter of laws. Instead, the Indian superior courts have actively engaged in actual legislation and have even taken over executive functions in order to resolve social, cultural, economic or political issues through the judicial process.

The reasons for this judicialisation of society and politics in India are twofold. First, the crisis of governance in Indian politics in the late 1970s that was set in with the end of the domination of the Congress party. Enter the Indian superior judiciary with its strategy of social action litigation and its desire to give politics a helping hand. Second, the Indian Supreme Court virtually surrendered before the emergency imposed by Indira Gandhi (1975-77) and abandoned the people of India. In order to regain and increase its social legitimacy, the Indian Supreme Court transformed itself into an activist court by trying to improve the access of the middle classes, the poor and the suppressed classes, to the Indian court system.

Most of the reasons cited above (crisis of governance, belief that courts can supplement politics etc.) also apply to the current judicialisation of society and politics in Pakistan. But something unique happened in Pakistan between 2007 and 2009. Unlike the US and India, the Pakistani superior judiciary has come to realise that public legitimacy and a mobilised civil society is its best defence mechanism against the perceived danger from both the political and the military elite. The courts in the US or India do not fear being suspended or overthrown by the political and military elite but in Pakistan, the superior judiciary is in a constant existentialist crisis. The Pakistani Supreme Court’s constant effort to try to resolve social, economic and political issues, facing Pakistan is based on its desire to re-inforce and increase its public legitimacy and to preserve the potential of political mobilisation in its favour.

In short, the desire of the Pakistani superior courts to be seen as a supplement, and as morally superior, to politicians is a strategy to sustain and increase their judicial power. Moralising comments and judgments by the Pakistani superior judiciary are not strictly about morality but more about the power arising from the discourse of perceived moral superiority.

There is a problem though. Independent judicial power in contemporary Pakistan is based on two sources — formal and de facto. The formal power comes from the text of the constitution which gives the judiciary the power of judicial review and contains formal safeguards for its independence. But this formal power will remain intact as long as there is civilian constitutional rule. In other words, if the current system of civilian democratic government is destabilised as an unintended consequence of judicial verdicts, the constitution will also go and with it will vanish all guarantees for an independent judiciary.

Therefore, in order to ensure constitutional stability, the Pakistani superior judiciary has to find ways of dealing with constitutional evils and violations in a way that it does not destabilise the civilian rule.

On the other hand the de facto judicial power in contemporary Pakistan is derived from public legitimacy and power of public mobilisation in favour of the courts. This de facto power of the superior judiciary will only be preserved and enhanced if it makes a constant effort to enforce the constitution against politicians, military, powerful private groups and even against the judiciary itself: And hence the judicialisation of societal and political issues.

Thus, the superior judiciary is caught between the contradictory demands of its formal and de-facto sources of power. If it strives for too much constitutional stability and does not directly deal with constitutional evils and violations, it weakens its public legitimacy which will lead to the erosion of the judiciary’s de facto power. And if it deals with constitutional violations constantly and upfront, there is a danger it might destabilise the present civilian constitutional rule, which, in turn, may lead to a predicament where there is no constitution and no formal constitutional judicial power. Therefore, the balancing of this irreconcilable contradiction is the judicial challenge of our times.

The writer is an advocate of Supreme Court of Pakistan.

caption

Lawyers or judiciary’s foot soldiers.

 

Burqa ban

Only 400 burqa-clad women have challenged the secular credibilty of France

By Ammar Ali Jan

In recent months, the issue of Muslim religious symbols has gripped the European imagination. The French and Belgian parliaments have passed legislation banning the burqa, while earlier Swiss voters voted in favour of a proposal banning the construction of minarets on mosques in Switzerland. A vocal anti-Islam Dutch MP, Geert Wilders, has gone a little step further, calling on European governments to ban all mosques from Europe and place strict restrictions on immigration from Muslim countries.

The primary reason for such proposals has been the belief that the "Western way of life" is under threat from a regressive Islamic culture. Terminology such as the "West" versus the "East," "Them versus Us" and "civilization versus barbarism" have often been used to differentiate the success of European civilization from the relative "backwardness" of the Muslim world.

To talk of the "Western way of life" is to erase all the contradictions and competing ideologies that have emanated from Europe. Europe is arguably the birthplace of modern socialism, but also happens to be the birthplace of the exact opposite ideology of fascism. Europe has taken pride in being the beacon of democracy and human rights while at the same time it denied the same privileges to those it colonized throughout the world. It has witnessed two world wars on its own territory, while it has also been the site of massive anti-war movements.

It is still astonishing to hear of the "threat" to Western culture, especially when no more than 400 women wear the burqa in France, while the number of minarets in Switzerland is a grand total of 4!

Why should such a minute minority dominate the entire discourse in countries such as France? The answer, according to French Philosopher Alain Badiou, lays exactly in the pointlessness of this entire debate. Today, the French state, much like other European states, is facing a crisis of credibility following the financial crisis and the subsequent budget cuts that have affected working people in Europe. It is a coup, Badiou argues, for the ruling clique that currently has little answers for the growing crisis, but has conveniently managed to divert public attention to an "external threat." This process has been gaining strength as more and more Muslim youth living in ghettoes becomes restless towards the adverse conditions they live in, as well as police brutality that is especially severe towards this segment of the population.

There is precedence for this kind of response to adverse financial conditions. For example, The Great Depression in 1929 led to the growth of fascistic movements all over Europe. These movements singled out Jews as the "enemy within" and the crude propaganda against Europe’s Jewish population led to the worse genocide in modern times. The fact that people calling for the dispossession of Muslims can express their point of view openly and worse, get elected by huge margins, is a dangerous trend that only helps to re-enforce such domination of far-right in European politics.

It is for this reason that it is naïve to expect that community-specific laws will help integrate Muslims in the mainstream. Despite the fact that only 400 women in France wear the burqa out of a Muslim population of 5 million, an overwhelming majority of the Muslim community is opposed to this ban. Such discontent has almost always worked in favour of Muslim religious extremists who are able to reiterate the simple civilizational binary in front of a sympathetic audience. Hence, this entire debate pitches the Muslim fundamentalists against the European far-right, both of whom mutually re-enforce each other.

On the question of women rights, it is important to analyse how the state attempts to fix the contours of acceptable "free choice." Men, as well as states, have had an old obsession of deciding what women can and cannot wear, and when they can and cannot dress. Conservative states such as Saudi Arabia and Sudan have imposed restrictions on how much skin women can show in public, while on the other hand, hyper-secular states such as France have now imposed restrictions on how much skin can they cover.

In both these cases, the state has the power to mould a woman’s body as a representative of its own idea of what constitutes an authentic identity. A woman’s body again becomes a contested space over issues such as enlightenment, religion, secularism, Islam etc. Once again, it takes away a woman’s right to defy limits set by society and to choose an existence that is relatively independent from the wishes of the state, especially since no such restrictions are imposed on men. For example, many of those women who wear burqa in France have already declared that they will not leave their homes if the law is imposed. This will make their condition even worse than the Afghan women under the Taliban who could at least come out of their homes with a male member. However, in this senseless civilizational debate, the woman’s voice is lost between two ideologies are attempting to define their civilization according to the image of "their" women.

The current campaign is led by the far-right to selectively target a particular community at a time when the social welfare state is crumbling. The idea of integrating Muslims by highlighting differences through fake binaries or to "liberate" Muslim women is hardly an effective way of engaging with such questions.

With the alarming rise of the far-right throughout Europe and with the small Muslim minority as the focus of their anger, it is important to re-conceptualise the ideas of "free choice," "multiculturalism" and "citizenship" if Europe is to carve out a harmonious existence with an ethnically and religiously diverse citizenry.


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