reforms
All about (dis)Order
"Admitting anomalies in the Police Order 2002, the government has prepared a strategy to replace it with a new Police Order 2010"
By Babar Dogar
As the December 31 deadline for giving constitutional protection to the Police Order 2002 approaches fast, the provincial governments have started bracing themselves for a new police system. The present police laws were put in place during the Musharraf era by the National Reconstruction Bureau (NRB), allegedly cobbled together under the patronage of the military regime. The police order was brought with the objective of depriving the District Management Group (DMG) of all powers relating to the police.

On the wrong track
The solution does not lie in transferring Pakistan Railways into private hands but in a greater involvement of workers in the management
By Abdul Manan
As privatisation of Pakistan Railways (PR) is on the cards thousands of labourers employed by it fear they will lose their jobs if PR is privatised. Labour unions have vowed that they will put up resistance against the proposed privatisation as they have not been taken on board in this regard. Officials of the PR believe that no proper yardstick is available to enlist and assess the assets of railway appropriately. The labour unions which are protesting against the proposed privatisation for two months blame it on corruption in the bureaucracy which, they say, have cost the PR billions of rupees. On the other hand, PR's high officials favour the privatisation process.

The News on Sunday: Why did you choose Pakistan for your doctoral thesis?

Claude Rakisits: My choice of Pakistan came about because as a Master's student in International Development at Carleton University in Ottawa, Canada in 1980, I had been focusing on Pakistan as a case study. There was no particular reason why I had chosen Pakistan, except that I was interested in an Asian country which was Muslim and which had a diverse ethnic make-up. I had no preconceived ideas about Pakistan or some of its national issues. However, the more I researched on Pakistan the more I became interested in the subject matter. That is how I decided to do a PhD (1982 – 1986) on the subject of national integration in Pakistan, examining the role of religion, ethnicity, and external environment.

TNS: What were the key findings of your research on Pakistan?

CR: My key finding was that the convergence of the three forces of religion, ethnicity, and the external environment had impeded the process of national integration in Pakistan. Moreover, until the national leaders were able to resolve the religious debate, i.e., the role Islam should have in the social and political order of the country, and reduced the centrifugal pull of ethnicity by granting greater provincial autonomy, the Pakistan polity would remain vulnerable to the influence of the external environment, and the process of integration would continue to stagnate. It would seem that these findings have survived the test of time.

TNS: What role do you think Islam has played in the integration of Pakistan?

CR: While Islam was the determining factor in legitimising the establishment of Pakistan as conceptualised in the "Two-Nation Theory", it soon became evident that Islam would not be the unifying force the national leaders had expected it to be. This was mainly due to the presence of three irreconcilable schools of thought, that is, the modernists, the traditionalists and the fundamentalists, regarding the role Islam should have in the administration of the country. The persistent disagreement between the adherents of these three approaches has diminished the power of Islam as the most important locus for affective loyalty and, accordingly, has strengthened the affective loyalty for ethnic groups. Ironically, the rise of the Pakistani Taliban and the religious extremism it seeks to impose on the country has now superseded these theological differences. The debate has moved on.

TNS: How has the ethnic make-up of Pakistan prevented it from emerging as a true nation-state?

CR: It is evident that the ethnic make-up of the country has made it more difficult to establish a firm nation-state. However, this is not the only reason, for as we know many countries have a mixed ethnic make-up. In the case of Pakistan, however, national integration has been compounded because of weak civilian institutions, Punjab's strong dominance over national affairs, differences over the role of Islam, and a hostile external environment.

TNS: What role has the 'external environment' had in the integration or otherwise of Pakistan?

CR: Faced with persistent demands for greater provincial autonomy, continued religious differences and a country whose two wings were physically separated by over 1000 kilometres of Indian territory, the national leaders early on decided that the most effective means to counter potential threats from a hostile environment would be to follow a policy of centralisation. However, this had the opposite effect; instead of smothering regionalism, centralisation increased demands for provincial autonomy. A hostile external environment has also had another negative effect on political development in Pakistan. In an attempt to counter the sense of military vulnerability, Pakistan joined Western security organisations in the 1950s and 1960s and has continued its alliance with the US ever since. Over the years, this has enabled the military to increase its forces, absorb a significant share of the national budget and increase its corporate power vis-à-vis the bureaucracy and the civilians. Furthermore, with Punjabi dominance of the military, the increased role of the military in the decision-making process of national affairs, was (and has been) perceived by smaller ethnic groups as another step in the domination of the Punjab over the rest of the country.

TNS: Do you think that the failure of national integration due to the ethnic mix of Pakistan has been the cause of large-scale political instability and political void in Pakistan, which persists even today?

CR: I do not believe that it is the ethnic mix per se, which has caused political instability in Pakistan over the years; rather, it is the result of poor governance of the country since Partition. This has included the failure to grant provincial autonomy, as outlined in the 1940 Lahore Resolution, weak civilian institutions, the dominance of military in the national decision-making process of the country, and the failure to invest sufficiently in the country's infrastructure, such as education, health, and social services, roads, energy and agriculture. The failure to properly invest in the long-term development of the country in turn compounds ethnic tension, as each group fiercely competes for a share of a development budget which is not big enough to satisfy everyone.

TNS: Are there any linkages of this decade-long political vacuum to the current trends of religious extremism-terrorism of Taliban and sectarian organisation?

CR: If you are referring to the Musharraf years, it is evident that he needed the support of the religious parties to remain in power. These parties, in turn, were sympathetic or at least did not oppose some of the views of the religious extremists. As a result of this, there has been a significant increase in sectarian violence not only between Shia and Sunni but also between the followers of the Deobandi and Barelvi schools of thought. But more importantly, the failure to nip this religious extremism in the bud has led to the growth of the Pakistani Taliban to the point where the military is now having to fight them in FATA and elsewhere in NWFP. Of course, it is important to remember that the growth of these extremist groups did not occur overnight – the seed was really planted some thirty years ago during General Zia's Islamisation programme.

TNS: Have you observed that the failure through political national integration necessitated other measures primarily coercive (the manifestation of which is Pakistani military) to integrate Pakistan?

CR: Presumably, you are referring to the military operations in Balochistan in the 1970s, 1980s and more recently. Needless to say, coercion will not bring about long-term, stable national integration. We all saw what happened in East Pakistan. I am not saying that this will happen to Pakistan. But what needs to be done in order to have a lasting, long-term solution is examine the root cause of the problem in Balochistan. This includes talking to the Baloch political and tribal leaders in order to identify their concerns and be better placed to address them.

TNS: What role you think the Pakistan military has had in the national integration of Pakistan?

CR: Certainly, in the early years following the partition the Pakistan military played a crucial role in the national integration of the country. Even though it was dominated by Punjabis and Pashtoons -- a legacy of the British Indian Army, it was one of the few institutions that had a national outlook. Unfortunately, politicians were weak and lacked leadership, creating a power vacuum at the centre. As a result, the military intervened directly and indirectly in the political arena on an almost regular basis. As a consequence, politics in Pakistan became much more centralised and Punjabi-dominated, making the smaller provinces feel uncomfortable.

TNS: Given that you teach a university course in Geneva called, "In the vortex: Pakistan-Afghanistan", what do you think is the root cause of extremism-terrorism in Pakistan?

CR: As I mentioned above, the seed of extremism-terrorism in Pakistan was planted under the rule of General Zia in the 1970s and 1980s. Under his watch, religious parties became stronger, an Islamisation programme was in full swing, thousands of madrassas were built and, importantly, many Pakistanis joined the mujahedeen to fight the jihad against the Soviet army in Afghanistan. At the same time, Pakistan was host to some four million Afghan refugees and thousands of foreign mujahedeen, many of whom were Arab followers of the fundamentalist Wahabi school of thought. Inevitably, this intense jihadist ideology and mood, reinforced by General Zia's own Islamisation programme, would have an impact on the local population, particularly in NWFP and FATA where most of the refugees and mujahedeen groups were located. And while most of these foreign mujahedeen left Pakistan after the Soviets left Afghanistan, the jihadist ideology took root amongst the local Pakistani population, principally, but not solely Pushtun. This process was made easier because FATA is one of the most impoverished regions of the country, with no industry, virtually no economic development, minimal social and health services, a very high illiteracy rate, and high unemployment. And to make things worse, FATA has a political status quite separate from the rest of the country. Put differently, after more than 60 years of independence, FATA has yet to be integrated economically and politically with the rest of the country.

TNS: Don't you think the failure of Afghanistan to emerge as a nation-state is the cause of religious fundamentalism in Afghanistan?

CR: There are a couple of issues here. First, the problems facing Afghanistan are very much the result of poor governance and civil war for some 30 years. Second, Afghanistan has always been a deeply conservative tribal society. Previous attempts to implement reform, especially with regard to the condition of women and education, have always been met with strong opposition amongst the tribal and religious leaders. Accordingly, it was not too difficult for a religious movement like the Taliban, which promised peace and order, to eventually take over the country following years of bitter infighting between the different mujahedeen groups.

TNS: Where do you think the Taliban insurgency will lead Pakistan and Afghanistan?

CR: That is the million dollar question. No one knows. One can only speculate as to the future of these two distinct insurgencies and what would be the implications. Turning first to the Afghan Taliban, they have a much better chance of succeeding in coming to power than their counterpart in Pakistan. Notwithstanding the presence of some 100,000 foreign troops today, the contributing countries have no intention of remaining there any longer than they need to. And the Taliban know this. Increasingly, there is talk of the possibility of bringing in the 'moderate' or middle-rank Taliban into the fold. With agreed pre-conditions, including most probably a public break with al-Qaeda this could be a credible option to end the war. It is important for the West to remember that the Taliban is a home-grown Pushtun movement, so they are not simply going to go away. Accordingly, they do not need to win on the battlefield; they simply have to wear down the NATO countries' political will to continue fighting in a distant land. And in that regard, they are on the right track.

Turning to the Pakistani Taliban -- Tehrik-e-Taliban Pakistan (TTP) -- their chances of taking over the state of Pakistan are minimal at best, notwithstanding the alarmist predictions of some Western commentators. However, they can create a lot of trouble for the government and the people of Pakistan for quite a while. The government of Pakistan will need to bite the bullet and ruthlessly pursue the leaders of the TTP. This will not be easy because the TTP is a loose, motley group of religious extremists mainly from NWFP and FATA but also increasingly from the Punjab. Similarly, while their presence is concentrated in the northwestern part of the country, there is increasing evidence of their presence in other parts of the country, including in Karachi and Lahore.

TNS: Do you think the term and strategy Af-Pak coined by the Americans is correct?

CR: While I can understand that Washington decided to coin this term Af-Pak because of the interconnections between certain developments in Afghanistan and Pakistan, personally, I believe it demonstrated a lack of cultural sensitivity towards both countries by simply lumping them together into one 'geopolitical basket'.

TNS: What is this strategy Af-Pak after all?

CR: That is a very good question. And I suspect there would be many different answers to that question in Washington, London or Paris. Most NATO countries involved in Afghanistan would broadly agree that the bottom line must be to stop al-Qaeda from coming back to a Taliban-run Afghanistan from where it could safely plot another terrorist attack overseas. And the second objective they seem to agree on is on the need to train the Afghan military and police. However, that is where the agreement would stop. The debate regarding the war in Afghanistan is increasingly becoming bogged down into whether the emphasis should be to go after al-Qaeda (counter-terrorism) or after the Taliban (counter-insurgency) or possibly a mix of the two. This is why the international community is so eagerly waiting to hear what President Obama is going to decide in response to General McChrystal's recent assessment of the situation in Afghanistan: to send or not to send many more troops into Afghanistan.

TNS: What do you think is the right strategy to achieve national integration in Pakistan in real terms?

CR: The best strategy to achieve this objective is really two-fold, political and economic: first, ensure that the country's democratic institutions, such as parliament, political parties, the Prime Minister's office, are strengthened; and, second, that sufficient development funds are put into building up the sectors which have been neglected over the years, such as education, health, social services, roads, agriculture and energy. Unless the basic infrastructure is developed or fixed as a matter of priority today, Pakistan will have great difficulty managing a population of some 300 million in 2050.

TNS: Are movements like 'Greater Balochistan', 'Sindhudesh' and the seemingly reemerging 'Pakhtoonistan' still a threat to Pakistan's national integration?

CR: It really depends how they are handled by Islamabad. As I discussed above, it is important to examine why these movements exist and then see, in consultation with the relevant ethnic leaders, how their grievances and concerns can be addressed. Of course, you will note that all these movements have one thing in common: dissatisfaction with their economic lot. And this brings me back to the need to focus on the economic development of the country, particularly for the most deprived sectors of society.

TNS: Do you consider that the predominance of Pakistani military in the state structure has been a hurdle in the national integration of Pakistan?

CR: Yes, I do. The predominance of the military in the state structures, particularly but not solely under military rule, has stunted the development of civilian institutions (e.g. parliament, political parties), which is an essential ingredient in the process of national integration. It is important to remember that for national integration to genuinely occur it needs to be democratic and popular (bottom up), not state imposed (top down).

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It is common sense that the American invasion of Iraq was motivated in large part by the desire to control the latter's enormous oil reserves. Throughout the history of the world, wars have been waged to secure material riches. However, just as important as the actual acquisition of resources in explaining wars is the economic need of the professional and economic interests associated with war. In other words, without war, professional armies and the multiple industries that create the implements of war are deprived of their raison d'etre.

Dissident intellectuals in the Western world have written prolifically about the so-called military industrial complex and the enormous power that it wields in Western countries, and particularly the United States. The argument is quite simple: overtime munitions and industries have expanded exponentially and their continued profitability requires the persistence of armed conflict. For the most part, munitions industries supply their own war-making institutions. So the major US-based arms suppliers rely primarily on US government contracts. However, like almost any other big industry in the 21st century, the production chains and markets of munitions companies are heavily internationalised.

It is not surprising that the narrative about the military-industrial complex when taken to its logical conclusion is often considered a 'conspiracy theory' because it posits that there exists a very powerful lobby within Western countries that is committed to unending armed conflict. But is this so difficult to believe? A close look at the American economy suggests that the military-industrial complex is one of the few, if not the last, major industries left in the US which has not jumped ship to either Europe or East Asia. There is also a very close link between the military-industrial complex and the corporate media, which, as is also common knowledge, is primarily responsible for moulding 'public opinion'.

The overall picture looks something like this: Americans consume much more than they produce, and rely on the rest of the world to finance their deficits. Meanwhile, the only thing that America produces and exports in a big way is war and weapons, and the whole absurdity of this statusquo is depicted as perfectly logical by the mass media.

Of course, there is also the other side. In Afghanistan, and Pakistan less so, there has developed over the past four decades or so a substantial network of interests that is dependent on the persistence of armed conflict. In the first instance, an enormous number of weapons is smuggled across various borders in cahoots with state functionaries. This smuggling network incorporates the users of the weapons, the transporters as well as a parallel network of drug traffickers (the production and sale of drugs largely funds the purchase and transportation of weapons).

Much has been made about the huge volume of poppy that is cultivated in Afghanistan, processed into heroin and smuggled to Europe. Informed observers are well aware that it is naïve to expect that the well-developed poppy export trade can be eliminated just because it should be. After decades of destruction, Afghanistan's economy is in a shambles and poppy export is one of the last remaining livelihood sources for many ordinary people. It goes without saying that those who are the major beneficiaries of this lucrative trade are hardly interested in a lasting peace which would ostensibly result in crop diversification and a weakening of the poppy lobby.

In Pakistan, the proliferation of militant sectarian groups in the 1980s has also resulted in the establishment of vested interests that are now reliant on the maintenance of a robust market for weapons. For the non-specialist, it is almost impossible to make sense of the various sects that exist in Pakistan now, many of which are very recent concoctions. All of these sects are primarily concerned with establishing their influence over society which means that they are direct competitors of one another. Armed to the hilt, militant sectarian groups serve both the insidious policy goals of the military establishment as well as the economic imperatives of weapons suppliers.

All told, there is a very complex political economy of war which is too often glossed over in mainstream accounts of why conflict persists. The 'war' that has engulfed this region must be understood with reference to this political economy. The question must be asked: Are either the Americans, the warlords/Taliban, or the Pakistani military committed to ending the conflict? Is it possible that any or all three of the major protagonists are actually content to let the conflict drag out because this serves the interests of the shady interests that actually benefit from permanent war?

It is of course impossible to answer this question conclusively precisely because of the shady nature of the interests involved. But recent reports about the quagmire in Afghanistan have confirmed the rather absurd fact that 10-15 percent of the American money flowing into Afghanistan ends up in the hands of the very insurgents who the Americans are purportedly fighting. The short explanation is that Americans (and other Westerners) have to pay to have their convoys protected from insurgent attacks and very often the 'security' that is hired is indirectly linked to insurgents.

Indeed, the very notion that there is a unified insurgency in Afghanistan has been decisively challenged by such evidence. Instead, it appears as if there are myriad warring groups that are keen to get their hands on the spoils of war. One suspects that the situation in parts of FATA is not dissimilar. To some extent, then, this 'war' is less about the heroic ideologies of the Americans, Pakistanis or Taliban/insurgents and more about the cynical material interests that operate slightly beneath the surface. This does not mean that all the protagonists can be considered moral equivalents or even that there does not exist some deeper contradiction between them, but only that it is necessary to factor the dimension that I have outlined above into the explanation for the persistence of conflict. Among other things, a reading of war that acknowledges this fact implies that a genuine politics of working people is more urgent a need than ever before.

Two major theories that explain the arrival of Islam in India are: 1) the religion of sword theory and, 2) the religion of persuasion. Each theory has its own advocates with abundant arguments in support of their viewpoint. It is, however, commonly agreed that Islam appeared in the Indian Sub-Continent long before the Arab military conquest of Sindh. In case of Swat, on the contrary, the introduction of Islam solely synchronises with Mehmud of Ghazni's sword.

The subsequent history of this new faith, Islam, in Swat is the story of contextualisation. Like other parts of central and south Asia, a Sufi form of Islam developed here. This process continued uninterrupted until the British encroachments on the Pakhtun land during the second half of the nineteenth century. After the demise of Akhund Abdul Ghafur alias Saidu Baba in 1877, some fundamentalist clergymen started to dominate the religious scene in the valley. One such legend, Sandakai Mulla, was violently engaged in anti-British as well as puritanical activities at the beginning of the 20th century. It is with him that the mystic form of Islam was disturbed in Swat for the first time.

The East is traditionally associated with spiritual consideration (mysticism) and Swat valley is no exception to this fact. Veneration of darveshs and shrines has been an envious attribute in the area. The personages of Shekh Milli and Akhund Abdul Ghaffur are an epitaph to this characteristic phenomenon of Swat society. On their part, such religious figures never interrupted the evolutionary pace of the society and Swat inherently continued towards progress and development. This natural evolutionary movement halted when Miangul Abdul Wadud, the grandson of the Akhund, assumed the mantle of power as spiritual-cum-temporal leader of the valley in 1917, under the title of Bacha (King). The Mianguls were, at that time, a secularised family with spiritual legacy. They needed to have secular credentials in relation with the British while, at the same time, in the native Swati socio-political context a hagio appearance was needed.

If Sandakai Mulla was associated with the wider programme of Islamic revivalism and reformation the Walis of Swat (1917-1969) proved instrumental in institutionalising religion in Swati politics. Religion was introduced into the politics of Swat with the consent of the Britishers. Only a hagiocracy could provide them a safer border in the region, especially in the face of the perceived Bolshevik threat. Bolshevism was officially declared as something anti-Islamic and loyalty to the British was simultaneously stressed upon. Thus, religion was prudently used in Swat state in the best interest of the British Empire.

Similarly, for ensuring internal peace the British wanted to reduce the influence of militant religious figures. And this problem was also ironed out with the cross-influence of the Mianguls. It is to be noted that this brand of Islam was acceptable and beneficial to both the colonial British and the Walis of Swat. The Walis also acted as religious out of the local political expediencies. Sharia laws were introduced in the state in a way that transformed the nature of politics and society in Swat, an act that helped the Mianguls gain legitimacy and state consolidation.

The judicial system was apparently painted as Islamic sharia. But, in fact, some parallel Codes of Conducts derived from and formulated in the light of customs were also in effect in Swat state. It is not a mare's nest that the establishment of two Dar-ul-Ulooms, in Saidu Sharif (Mingawara) and Charbagh, was a conscious effort towards gradual Islamisation of the judicial system obviously at the cost of the secular national culture of the Swat Pakhtuns (Pakhtunwali). Fetawa-Wadudia also seems to be compiled under this obsessive consideration.

Quite the reverse is the fact to which Ghulam Habib Khan, editor of Riwaj Nama-i-Swat, points out. He writes that though in some tehsils brief and scarce codes of conducts were available but no serious efforts were made in the compilation of Riwaj (customs). The Islamisation programme was not restricted to the legal system of the state alone rather it spread to adversely affect the cultural features of Swat. Historical names of many villages were substituted with Arabic ones, for instance Petai as Fateh Pur, Churrai as Madayan, Baranyal as Behrain and so on and so forth. This process of Islamisation was a conscious effort aimed at the centralisation of power and consolidation of the state authority. In this way, the Walis successfully consigned the powerful Swati Khans, a traditional-secular leadership, to oblivion.

The Walis are generally projected as progressive and secular rulers, especially as compared to the Nawabs of Dir. But there seems no point of comparison as the two had evolved in different contexts. The Nawabs, contemporary of the Walis, had inherited Dir from their forefathers. They were safe from any kind of internal challenge. On the contrary, the Walis' holy family was of no match to the Swati Khans. In this context, the Walis' efforts of modernisation as well as Islamisation seem to have been directed towards crippling the powers of the rival Khans.

The Walis of Swat can be, in a limited sense, compared to the enlightened despots of the mid-eighteenth century Europe. The latter were generous in developmental programme. They patronised enlightenment principles and instituted some rational reforms in realms of education, trade, commerce, and religion. Through their reform measures, the enlightened monarchs clearly looked at enhancing central government's power and thereby their own.

The Walis also shared their cynical disdain for all sorts of individual liberties and freedoms with the enlightened despots of Europe. The fact is substantiated by the persecution of Zardullah Khan, Sundiya Baba and Reful Ustad for their alleged connections with Abdul Ghaffar Khan's Khudai Khidmatgar Movement.

Similarly, Professor Sahar Yusufzai, a well-known Urdu-Pakhto literary figure, was removed from his position as professor at the Jahanzeb College, Mingawara. The professor was famous for instilling the use of reason and free-thinking in his students.

The general phenomenon of socio-political developments at the turn of the nineteenth century in Europe led to democratic values and institutions. But quite the opposite took place in Swat. The political ambience in the second half of the twentieth century, in Pakistan and Swat state, was conducive for the state-patronised religious obscurantism. It is, thus, to be safely inferred that the Walis, the sole policy makers-cum-rulers, were instrumental in the gradual Islamisation of state and society in Swat.

While the whole nation is held hostage to a non-debate on NRO, there is a risk that other important ordinances and institutions established under them may also become prey to the prevailing political environment. The Competition Ordinance, 2007 (the Ordinance) is one such legislation which established Competition Commission of Pakistan (CCP). The commission may meet a pre-mature and unnatural death, unless the ordinance is re-enacted on its expiry on Nov 28, (the cut-off date set out by the Supreme Court in its Order of 31 July, 2009). The Ordinance was promulgated under Article 89 of the Constitution on 3 October, 2007, replacing the outdated Monopolies and Restrictive Trade Practices Ordinance of 1970 (MRTPO). It was given so-called status of a permanent law under the Provisional Constitution Order (PCO) imposed by Gen. Musharraf, which has been declared unconstitutional by the apex court.

The Competition Commission of Pakistan in its short existence has done some commendable work in the interest of the people of Pakistan. It has successfully taken on strong vested interest which holds back the national economy and works to the disadvantage of ordinary citizens. Examples include the cartels in the cement, sugar and banking sector. The commission has also taken on cellular phone companies and other businesses which indulged in unfair and anti-competitive trade practices.

The success of the commission has been made possible due to various provisions of the Ordinance (it is drafted in accordance with the prevailing international best practices of competition legislation) which established a powerful institution coupled with a competent team led by Khalid Mirza, its Chairman. Today, the Competition Commission figures prominently among the few good institutions we have. On a recent visit to India, one heard praise for the work the Commission has done so far.

Taking on strong vested interest has also earned the Commission the ire of the elements involved in anti-competitive and anti-people activities. There have been efforts to influence the government to dilute the powers of the Commission. For instance, amendments reportedly concerning the quantum and basis of penalties prescribed in the ordinance for various violations have been under consideration to be placed before the Senate.

Sensing the urgency and necessity of the work of the Commission, the government placed the law for consideration before the National Assembly's Standing Committee on Finance a few days ago. However, this step provided just another occasion to somehow manoeuvre to dilute the strength of the law which gives the Commission wide powers including that of search of business premises and impounding of records, to initiate enquiries into cartels and other anti-competitive behaviour and unfair trade practices, and to penalise delinquent businesses by imposition of fine up to Rs50 Million or 15 per cent of annual turnover to deter them and others from future violations along with security of tenure to the members of the Commission. The Chairperson of the Standing Committee on Finance has confirmed to journalists that there was a lot of pressure exerted from various stakeholders to reconsider the draft Competition law. Lobbying in the parliament and with the government circles has reportedly forced the speaker National Assembly to send the Competition bill back to the concerned Standing Committee for reconsideration.

It has also been reported in the press that the Karachi Stock Exchange (KSE) in letters addressed to the Sindh Government as well as other relevant quarters in the federal government, has raised several questions regarding the Commission's constitutional status as well as the commission's several powers. It may be recalled that the Commission earlier this year had imposed fines (on the lower side) upon the stock exchanges of the country including KSE for anti-competitive practice of fixing of minimum price on the trading of listed securities in violation of Section 4 of the Ordinance which prohibits agreements that lessen competition in relevant market. The letter was circulated while the vires of the ordinance have already been challenged by KSE and some cement companies in superior courts.

Among the various questions reportedly raised by KSE and others, the most important concerns the federal parliament's competence to enact a law on the subject of competition and cartels. It is the most important question because it goes to the very basis of the law's existence. But, it would appear, that this is the weakest objection. It is argued that the subject is mentioned neither in the Federal nor in the Concurrent Legislative List (subjects mentioned in these two are within the competence of the parliament for legislation). Any legislation on competition, therefore, should be left to provinces. It needs to be emphasised that any scheme of law concerning competition in a federation must transcend provinces. Provinces or states in any federation anywhere in the world face constitutional inability to act on any such scheme. For the sake of making the matter simple, consider: How is the Government of Punjab supposed to act against a company based in Sindh, which is indulging in a behaviour contrary to the public interest of the people of Punjab and vice versa?

The objection to the parliament's legislative competence is flawed as the article 151 (2) of the 1973 Constitution clearly empowers the parliament to enact a law to "impose such restrictions on the freedom of trade, commerce or intercourse between one Province and another or within any part of Pakistan as may be required in the public interest". And even before that sub-article 1 of Article 151 says "(1) Subject to clause (2), trade, commerce and intercourse throughout Pakistan shall be free". Article 301 of the Indian Constitution is comparable to our 151. The Indian Supreme Court has held in Jindal Stainless Steel case [Jindal Stainless Ltd. v. State of Haryana, AIR 2006 SC 2550], that freedom (in Article 301 of Indian Constitution) means freedom from laws which go beyond regulation. Therefore, Article 151 means freedom from laws which burden and thus envisage regulation.

Article 151(2) read with item no. 27 of the Federal Legislative List (…inter-provincial trade and commerce, trade and commerce with foreign countries;…) is comparable to the popularly known Commerce Clause (Article 1, Section 8, Clause 3) of the US Constitution which empowers the Congress "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". Similarly, Section 91(2) of Canada's Constitution Act (1867) empowers the Canadian parliament "Legislative Authority" over "The Regulation of Trade and Commerce."

Similar examples can be found elsewhere in other federal constitutions where parallel constitutional provisions exist. While the jurisprudence on the subject indicates that there is a tendency to limit the federation's general power to legislate on matters concerning interstate/province trade and commerce but the constitutional inability of the provinces/states, jointly or severally, to enact such a law and the need for national rather than provincial/state regulation if a scheme is to be meaningful and effective are two criteria, among others, which the courts are inclined to examine while considering the vires of a federal statute relating to interstate commerce and trade.

Therefore, there is now a general agreement in federally structured states that competition is a subject within the competence of the federation as, inter alia, the provinces/states, jointly or severally, are constitutionally incapable of enacting an effective legal scheme concerning competition.

Reportedly, an argument has also been tried at, based on constitutional provisions of the abrogated constitutions of 1956 and 1962. While the 12956 constitution had a specific item on the federal legislative lis concerning industrial monopolies; the 1962 constitution had no reference to the subject, neither in the substantial provisions nor in the legislative lists. We should not forget that the former anti-monopoly law MRTPO of 1970 (which was promulgated after the 1962 Constitution had been abrogated in 1969) was given protection under the Constitution of 1973. Therefore, any argument on the basis of previous constitutional provisions also does not hold. Any reference to the Indian constitutional scheme in support of the ultra vires argument on the basis that it has a specific item on its concurrent legislative list is also non-productive, which may not be discussed here due to space constraint.

The amendment under consideration by the federal government regarding the quantum of penalty also needs to be considered carefully. The Ordinance provides (subsection 2 of section 38) that Commission may impose fine on any enterprise found guilty of violating its provisions, a fine of Rs50 million or 15 per cent of its annual turnover, leaving discretion with the Commission. The amendment proposes insertion of words 'whichever is less' for imposition of fine from the two amounts. This is clearly at the behest of powerful cartel lobbies in the country and is intended to reduce the quantum of penalty which will substantially take out the sting out of the powers of the Commission. This should not happen. In this regard, it may also be mentioned that international best practices prescribe that penalties be linked to turn over. At this juncture of the development of law and competition regime, it would be best to leave the discretion with the Commission. It can be strongly argued that this is important to deter increasing cartelisation in Pakistan.

Simultaneously, voices have been raised to make penal provisions of the ordinance even stricter by criminalising certain offences under the Ordinance. This may prove to be premature. Investigation and enquiry into cartelisation is a highly complex and difficult task. In jurisdictions where competition offences have been criminalised, it was done after the competition regime had worked for some years and significant expertise had been obtained by lawyers and economists to investigate cartelisation. Corporate and individual criminalisation of offences will give powers in the hands of the Commission for which it may not have the requisite experience. However, any such provisions, if introduced, may be envisaged to come into force at an appropriate future date a few years from now after taking stakeholders on board.

However, certain other objections raised concern the provision of Supreme Court as a forum for appeals against the decisions of Appellate Tribunal of the Commission (section 42) and Commission's powers for search of business premises and seizure of records without obtaining warrants from an independent judicial body (sections 34, 35). The search and seizure powers, without obtaining permission from an independent body, are contrary to international best practices. The law must be amended in this regard by involving a judicial body in the mechanism. The Supreme Court as the direct appellate forum from the Commission's decisions appears on the face of it somewhat problematic and needs to be debated in terms of the Articles, among others, 185, 175 and 212 of the Constitution.

However, such considerations need time which is short at present, as the law must sail through the parliament or promulgated as an ordinance on its expiry on Nov 28 as prescribed by the apex court. Khalid Mirza, the Chairman of the Commission, has reportedly said that in case the law is not passed with all the existing powers, he might resign. The stakes are high, indeed. The Constitution requires the government to regulate trade, commerce and industry in the interest of free competition and public interest. Will the parliament and the government act in public interest or fall prey to manouvrings of the strong cartel lobbies?

Trafficking in Persons Report (TIP), released in June 2009 by United States Department of State Publication, places Pakistan at the centre of issues like forced labour and sexual exploitation. The international face of human trafficking has its own horrifying tales of victims coerced into prostitution in various forms and manifestations. One UN estimate placed 4 million people, among them 2 millions girls, in the age bracket of 5 to 15 years that are trafficked and brought into sex industry each year. Trafficking across borders is primarily from poor countries -- from South and East and Eastern Europe to wealthier countries of Western Europe, the US, Canada, Japan, Australia and the Middle East.

As of 2006, the US State Department reported that women and children trafficked each year to the US are mostly from South East Asia, Eastern Europe and Latin America. Trafficking business is now worth an estimated £10.5 billion globally according to Cambridge Centre for Applied Research in Human Trafficking. Women and children from Afghanistan, Azerbaijan, Bangladesh, India, and Nepal are trafficked to Pakistan primarily for forced labour, according to TIP report.

A few living experiences of women trafficking survivors of Philippines origin are eye-opening. These cases were presented last month during the Beijing plus 15 Conference on Women Rights in Manila. Various factors, emotional and economic, result in people taking to an escape route to vent out anger.

Women trafficking is undertaken by organised gangs of recruiters, traffickers, and their associated networks. Some agencies entrap women on false economic incentives such as offering them jobs in hospitals, secretarial jobs, invite them to cultural events. Many a times visa and passports are taken away and, having no other choice, victims fall a prey to this modern-day bondage. Girls live in constant fear of their employers and end up enduring and encountering sexual violence.

Offering girls in swarah to settle disputes between feuding parties is another form of trafficking. Women from rural and low-income areas are sometimes pushed into seeking employment in cities where they are exploited by all kinds of mafias and often pushed into prostitution. Sometimes girls also try to escape from violence in families and end up in the clutches of traffickers, says Rubina Saigol, a social analyst.

Prostitution also puts a victim at health risks throughout her life. Is it sane to imagine that someone would voluntarily choose to become a prostitute? According to United Nations Anglican Observer, Hellen Akwii-Wangusa, deception, betrayal and abuse of power are the tactics used in trafficking. In Pakistan, bonded labour remains an unresolved issue in brick-making, carpet-weaving, mining, and leather tanning -- a practice that is operative in Sindh and Punjab.

The aforementioned TIP report states that the government is hesitant in showing evidence of addressing issues of bonded labour, forced child labour and trafficking of migrant workers by deceptive and fraudulent labour recruiters. The government of Pakistan does not fully comply with the minimum standards for the elimination of trafficking. However, Pakistan is making significant efforts, such as prosecution of some trafficking offenders and launching of public awareness programmes, the report says.

Pakistan has Prevention and Control of Human Trafficking Ordinance with penalties ranging from seven to 14 years imprisonment. For internal cases of trafficking, Emigration Ordinance is in place. In addition, Bonded Labour System Abolition Act has penalties ranging from two to five years imprisonment and fine or both. Under the reporting period, the government made convictions of 28 trafficking offenders but the specifics of punishments awarded to offenders were not available. On the other side, 147 law enforcement officials were disciplined for complicity with human trafficking under the government service rules and regulation revealed in the TIP report. Pakistan has not ratified the 2000 UN TIP Protocol.

Najma's saga

Some unfortunate women, hard pressed under poverty, violence, forced marriages, and under-age marriages, find themselves left with few options. One such heart-wrenching story is that of Najma (not her real name), a 26-year old who worked as maid in Lahore and was later forced into prostitution. Ever since I met Najma, I cannot forget the despair and dejection in her eyes and the smiling yet pale face of her two-year old baby girl. Najma fell prey to a gang of women traffickers, but was fortunate enough to extricate herself from the gang, only to become their target again. Najma's naivety to the social evils in society became one of her drawbacks. Najma tells The News on Sunday (TNS) that she and her husband used to spend a comfortable life in the servant quarter of a businessman where she worked part time and her husband as a chauffeur. Coming from rural surroundings, where Najma faced abject poverty, city life was a breath of fresh air.

By a twist of fate she landed in the clutches of human traffickers. She was travelling in a rickshaw to visit a friend along with her infant girl. Since she did not know the exact address, the rickshaw driver, who happened to be a contact of human traffickers, took her to the place of the gang. Najma's hue and cry was of no avail. Later, she was offered to various clients.

The baby was given under the charge of a middle-aged maid of the house. Finally, a middle-aged client of Najma helped her to travel to Rawalpindi and got her settled as a housekeeper at a working women's hostel. Meanwhile, Najma's husband filed a First Information Report (FIR) for her missing wife. The police were hesitant to register the FIR of abduction case. Najma's husband was humiliated by the police who said his wife had eloped with some acquaintance.

Eventually, after gaining her freedom from the gang, Najma contacted her husband but she was not accepted back home. Meanwhile, Najma also lost her job in the working women's hostel. Now Najma lives alone, frequently changing places. She clings to her child with a resolve to secure her future and education. When asked why she resorted to prostitution she burst into tears explaining she had to do that in order to survive. She showed the scribe her diary which was full of contact details of her clients.

As the December 31 deadline for giving constitutional protection to the Police Order 2002 approaches fast, the provincial governments have started bracing themselves for a new police system. The present police laws were put in place during the Musharraf era by the National Reconstruction Bureau (NRB), allegedly cobbled together under the patronage of the military regime. The police order was brought with the objective of depriving the District Management Group (DMG) of all powers relating to the police.

Under the system of executive magistracy, the deputy commissioner played a pivotal role in the district. The district magistrate wielded vast powers under the Police Act of 1934 and Police Rules of 1934. Under the previous police laws, the district magistrate exercised general superintendence over the district police and the District Superintendent of Police was answerable to the district magistrate in matters pertaining to law and order and human rights.

The district magistrate and the assistant commissioner/sub-divisional magistrate could inspect police stations in the district. They could hold judicial enquiries against police officers accused of committing excesses against the public. The police was bound to take orders from the district magistrate and his subordinate magistrates in matters relating to law and order. The district magistrate would initially write a portion of the Performance Evaluation Report of the District Superintendent of Police. However, later, this power gave way to writing a separate special report on the performance of the SSPs. Under the Police Rules of 1934, the district magistrate had the power to approve posting of the Station House Officers (SHOs). However, with the passage of time the SSPs started posting SHOs independently. Under the previous laws, permission for holding processions and rallies was also granted by the district magistrate.

Under the devolution plan, the institution of executive magistracy along with the district magistrate was abolished. For the purpose, criminal law amendments were brought, which amended the Criminal Procedure Code 1898. Likewise, a new police order with the name of Police Order 2002 was promulgated. The Police Order was brought with the high claims of freeing police from political pressures. The continuous political interference was not only marring the performance of police officers but also adversely affecting the provision of justice to the common man.

The police was brought out of the control of provincial governments by minimising the control of Home Department over the police and transferring its reigns to civilian control. There was a provision of Public Safety Commission, a watchdog body comprising people from the civil society at the federal, provincial and district levels to control the police. Nevertheless, due to political exigencies and manoeuvering of police officials, the Public Safety Commissions remained a toothless body and was not allowed to function properly.

Despite the fact that police is purely a provincial subject, the Police Order was promulgated as a federal law by General Pervez Musharraf in his capacity as Chief Executive. Some of the consultants, then working with NRB, had expressed their reservations regarding promulgation of the Police Order as a federal law. However, the powerful and well-entrenched police lobby in NRB prevailed and the Police Order was promulgated as a federal law.

The Police Order 2002 envisages that any amendment to the Order can only be made by the federal government. When the Parliament was elected in 2003, it validated all the Ordinances and Orders of the Chief Executive under Article 270AA by a two-third majority.

There is a difference of opinion regarding the repeal of or amendment to the Police Order even after it is denuded of its constitutional protection after December 31, 2009. Police and DMG officers view the law through different lenses. Police officers maintain that the Police Order is no more within the domain of the provincial governments as it has been validated by the two-third majority of the Parliament. The DMG officers, on the other hand, maintain that police is neither in federal government nor in the Concurrent List of the Constitution and thus is purely a provincial subject. Hence, promulgation of the police law is entirely unconstitutional and after December 31, when it is excluded from the sixth schedule of the constitution, the provincial governments will adopt it and thus amend it.

There are two options available to the provincial governments to bring new police laws. First is a compromise with the federal government under which the present Police Order may be repealed and a new law may be framed by the federal government and given to the provinces to adopt it like the Local Government Ordinance was done. The other option is the judicial forum, meaning thereby that since the promulgation of the Police Order as a federal law is violation of the constitution, the courts can strike down the Police Order.

Keeping in view the intricacy of the situation, the viable option for the federal and provincial governments is to sit together and bring consensus laws. For bringing about an effective administrative system according to the demands of the provinces, amendments in Criminal Procedure Code for restoration of Executive Magistracy and in Police Order for creating control of the District Magistrate are necessary. These amendments can only be made by the federal government. Some quarters, especially Daniyal Aziz, ex-Chairman NRB, strongly opposed the restoration of Executive Magistracy on the ground that its restoration would be negation of the doctrine of separation of Judiciary from the Executive.

The Law Reforms Ordinance 1972, which served as the basis of separation of Judiciary from the Executive and which was made part of the Constitution of 1973, provided for retention of the institution of Executive Magistracy. They further cite the example of the Indian Constitution which also contains provisions of separation of judiciary from the executive. However, the institution of Executive Magistracy still exists there.

The present Police Order 2002 does not provide considerable safeguards against human rights violations. The entire police order revolves around the Public Safety and Complaints Commissions. It was claimed at the time of promulgation of the Police Order that community involvement would be ensured. Even at the initial stage, the commissions were packed with members having strong political affiliations. Later, MNAs and MPAs were included in the commissions whose very political survival depended on their performance in thana and kutchery.

Prominent lawyer on criminal procedures Aftab Bajwa, tells The News on Sunday (TNS) that Police Order 2002 had some inherent flaws which had caused difficulties in providing justice to the masses. "The decision to separate investigation from operation caused further difficulties for the masses instead of facilitating them". Bajwa is of the view that the absence of proper checks and balances on police after abolishing the office of District Magistrate made cops unruly, adding that the concept of community oversight over police has utterly failed. A two-tier system of oversight over police needs to be put in place to safeguard human rights. Bajwa suggests that a district magistrate should be empowered to conduct enquiry against errant police officers but the matter of punishment should be left to the court which should not be inferior to the Sessions court. Entrusting powers of judicial enquiry of police encounters with the Judicial Magistrates has not worked as a deterrent against fake encounters. Bajwa believes this power should be given to the Sessions Judges while the power to disperse unlawful assemblies should be given to the Executive Magistrates.

Talking to TNS, Punjab Law Minister Rana Sanaullah Khan admitted anomalies in the Police Order 2002 and claimed the government had prepared a strategy to replace it with a new Police Order 2010. He told TNS that the ministry had constituted a working committee to work on Police Order 2010 after identifying lacunas in the Police Order 2002. Sanaullah termed meaningless the Public Safety Commissions and Police Liaison Committee, which were part of the draft of Police Order 2002.

The minister claimed that the separation of Investigation wing from the Operation wing had damaged the concept of unity of command in the police department and encouraged corruption. He said the ministry was planning to bring it under one control. Moreover, he was of the view that since the Police Order had created new posts and consequently brought unprecedented promotions among police officers that made the police hierarchy top-heavy. Sanaullah said they had plans to further clip some of the powers of DPOs and transfer these to the office of District Magistrates, adding that under the Police Order 2010, DPOs would not be able to transfer Station House Officers (SHO) before a period of one year.

As privatisation of Pakistan Railways (PR) is on the cards thousands of labourers employed by it fear they will lose their jobs if PR is privatised. Labour unions have vowed that they will put up resistance against the proposed privatisation as they have not been taken on board in this regard. Officials of the PR believe that no proper yardstick is available to enlist and assess the assets of railway appropriately. The labour unions which are protesting against the proposed privatisation for two months blame it on corruption in the bureaucracy which, they say, have cost the PR billions of rupees. On the other hand, PR's high officials favour the privatisation process.

According to government officials, PR has been running in losses for decades. Last month, Federal Minister for PR Ghulam Ahmad Bilour stated that PR was incurring losses of Rs 16 billion. According to government statistics, various governments have made a number of attempts to cut losses but failed. In 1997 the Council of Common Interest (CCI) approved the privatisation of PR to put it on the right track but the decision did not materialise. PR has been divided into three business units: passenger, freight, and infrastructure but, according to PR's officials, this composition badly flopped in 1999.

Other actions taken in 1997 by CCI were that all the surplus assets and non-core assets were to be transferred to Railway Resettlement Authority (RRA). The RRA will be a statutory body. The mission of the RRA is to dispose of all the surplus assets and liquidate long-term liabilities. It was also decided that Railway Policy and Regulatory Framework document would be formulated. Discussions were held by PC with the ministry of railways to discuss future modalities.

PR General Manager Saeed Akhter tells The News on Sunday (TNS) that no actions mentioned above have been implemented. Talking about the current development of PR's privatisation he says that recently Cabinet Committee on Privatisation (CCOP) has discussed the proposed "Pakistan Railway Corporation Act (PRCA)" and referred it to the Council of Common Interest (CCI) for approval. He says that PRCA after getting the approval from CCI will soon be implemented.

According to government statistics CCOP is the macro-level decision-making body for approving, modifying, and implementing the privatisation policy of the government. It was established simultaneously with the establishment of PC 1991. Article 153 of the Constitution provides for a CCI comprising the chief ministers of the provinces and an equal number of members from the federal government. The public entities, interests etc, contemplated to be privatised are brought before the CCI if it is so required.

Saeed Akhter maintains that if people define privatisation as mere transfer of ownership then he would disagree to it. He denies that there are plans to privatise PR, saying the government of Pakistan has reviewed the existing privatisation policy in order to model it on the concept of Public Private Partnership (PPP) wherein the management may be transferred to investors while ensuring transparency. He said that the main objective of privatisation policy through PPP model is to put national resources and assets to optimal use, adding that the PR has recently exercised this by planning a project with two Karachi-based private companies to establish Praim Nagar Dry Port in Lahore.

According to statistics give by some government officials who do not want to be named, PR is giving services to around 40 million people across the country and around half a million people of the city are associated with the PR as employees. They claim that the private sector will not run their trains on low profitable branch lines and question job security of the employees. They also say that since PR has great strategic importance, especially during wartime, private sector might create problems for movement of trains carrying equipment for the army.

Representatives of labour unions have expressed their views against the privatisation. Chairman Railway Mehnatkash Union, Khadim Hussain, says that PR is a national institution and it should not be privatized as it employees about 80,000 employees, including some 65, 000 workers between the basic pay scale of 1 to 12. He fears that if PR is privatised the fate of workers will hang in balance.

Hussain complains that PR has not taken them on board, as they are major stakeholders of the privatisation process, adding that privatisation of government institutions have failed in the country in the past. By the same token, he believes, the privatisation of PR will also fail. He cites Federal Minister Bashir Ahmed Bilour who had stated in the Standing Committee of Senate a few weeks ago that PR's officials had committed corruption of around 14 billion rupees. He believes that if administrative flaws are removed from the PR then it can be turned into a profitable institution.

General Secretary Pakistan Railways Traffic Yard Staff Association, Syed Shujat Hussain, alleges that transporters are major players in PR's privatisation process in order to make their transportation business more profitable. "Transporters have political influence. They want to run their buses on the routes used by trains."

Chairman Praim Labour Union (CBA) Sheikh Anwar maintains that since PR is a commercial and strategic institution its privatisation will be taken as an act of high treason. He suggests that PR should adopt Open Access Policy (OAP) instead of its corporation or privatisation, adding that through OAP, PR should invite foreigners and rent out railway tracks to run their own trains. He believes OAP can solve PR's problems. Anwar tells TNS that some sections of PR were privatised in the past but it proved to be a bad experience. He cites an example where a train bound from Faisalabad to Lahore was privatised in 1996 at the cost of Rs 20 million per annum but it ran into losses of about Rs 30m per annum. He says that PR's privatisation will leave workers insecure.

Anwar believes that it is the PR's administration at the top level that should be downsized instead of the lower staff. "India runs 14000 trains per day while Pakistan runs 293 trains per day. India has only one slot of General Manager while Pakistan has three GMs, three additional GMs, eight divisional superintendents and 16 deputy divisional superintendents."

Central General Secretary of Railway Mehnatkash Union Muhammad Iqbal Shad tells TNS that PR's privatisation will deprive workers from their basic human rights as private sector will deprive them of basic facilities such as residences, free healthcare, and education. Shad says PR's privatisation will also withdraw the 20 percent job quota of PR's employees, adding that PR's administration has not signed any contract with any labour union for the last 30 years.

Representatives of various labour unions, such as, Praim union (CBA), Railways Mazdoor Union, Railways Labour Union, and Railways MehnatKash Union tell TNS that all the labour unions will stage a protest against PR's privatisation if it takes place and can even go to the extent of blocking the railways system across the country.

Aasim Sajjad Akhtar, a human rights activist, expresses his views on PR's privatisation. "We are against the process of corporatisation leading to privatisation. This is because commanding heights of the economy, such as telecommunications, railways and oil and gas should be public monopolies that guarantee employment and service delivery. Besides, these organisations can earn money for the public exchequer. The performance of PIA and PTCL has, in fact, gotten worse after corporatisation/privatisation."

Aasim believes labourer's apprehensions about their job security are well-founded. "This is a fairly accurate threat perception. The example of PTCL after privatisation proves that worker retrenchment is one of the primary actions taken by private management".

On the bureaucracy concerns regarding PR's privatisation Aasim says, "Bureaucracy is of course motivated by its own narrow interests. I believe that the bureaucracy is part of the problem but the solution is not to transfer public enterprises like PR into private hands, instead, the solution is to take concrete steps towards greater involvement of workers in management. Aasim maintains that public private partnership is just a fancy way of doing corporatisation leading to privatisation.