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profile A “sorry”
tale agenda The route to
conflict Sceptic’s
Diary
profile At 7.30am on August
30, 2012, all was set for the hearing of Rimsha Masih’s case in the
sessions court of Islamabad in the F-8 Sector. Camerapersons of national and
international media were busy fixing their devices at suitable places outside
the court room. A good number of people from the Christian community from all
over the country were also present there to witness the hearing. Rimsha’s lawyers reached
the court at around 8:15am, hopeful that they will get her released on bail.
A medical report had already declared her 14 years of age, uneducated with a
mental age below her physical age. It was enough evidence for her lawyers to
plead for her bail in the court. Sources in the government and police were
almost sure she would be granted bail that day as the government did not want
to drag this case. The hearing that was
expected to start at 8am began at 9:30am as the duty judge took more than an
hour and a half in his chamber before appearing in the court. As the judge
started hearing the case, a lean youngish lawyer presented the power of
attorney on behalf of Malik Amad, the complainant in the case. The judge
allowed him to contest the case. He took no time in getting full control of
the case and questioned every plea of the lawyers of Rimsha. He challenged
the legal status of the medical report which the court accepted and adjourned
the case for next hearing. The lawyer came out of the
court and gave a fiery speech in front of dozens of cameras, terming Rimsha
guilty of blasphemy. “Doctors, police, the government, everybody is
supporting her,” he said in a very emotional tone. He said he did not want
the Rimsha case to be used against the blasphemy laws. “Let the courts
decide the case on merit. Do not make her another Aasia Bibi. There are many
Mumtaz Qadris in the country,” he warned. The lawyer was 32-year-old
Rao Abdul Raheem, chairman of Namoos-e-Risalat Lawyers’ Forum. He terms
Mumtaz Qadri, murderer of Punjab Governor Salmaan Taseer, his hero, and is
one of the lawyers representing him. He also represents the accused in the
Benazir murder case. Rao, who considers himself
first a Muslim, then a Pakistani and then a lawyer, takes such cases as his
religious duty. “There are some cases in which I charge fees from my
clients but then there are other cases like the Rimsha’s in which nobody
can pay my fee and I would charge it after death from Allah Almighty,” he
tells TNS, sitting in his spacious chamber at F-8 in Islamabad under the
picture of Mumtaz Qadri which also reads “Qadri we salute your courage”. Rao, who hails from
Burewala in Vehari district, was on vacations as August is the month of
holidays for the courts in Pakistan and had no plans to come to Islamabad
before September 1, the first working day. He made a special effort to reach
the court on August 30. “I travelled for 6-7 hours and reached Islamabad
only a few hours before the court hearing. My forum contacted the complainant
and they informed me on August 28 that my name has already been finalised to
fight the case,” he says. “I am not a good practicing Muslim but when
somebody burns Quran I feel like he/she is burning me.” He blames the foreigners
and NGOs for turning a “normal case” into an assault on Pakistan’s
Muslim majority. He thinks that the new
twist in the case involving Maulvi Khalid Chishti, one of the accusers and
prayer leader of the mosque of the locality where Rimsha lives, has further
strengthened the case of his client. “It has been clearly said by all
witnesses that Khalid Chishti added two pages of Holy Quran in the evidence
but nobody has denied that half of the burnt pages of Quran were not
recovered from Rimsha. For me both Khalid Chishti and Rimsha are guilty of
blasphemy. We do not care about religion, sex, creed or age of
blasphemers,” says Rao. He believes that charges
against Khalid Chishti are part of the efforts of the state machinery to
grant bail to Rimsha. “In the next step, the police will register a case
against the complainant but we will not back out from the case.” Medical board, according to
him, can only judge the age. “It has no authority to judge the mental
health or education of Rimsha. I do not understand why mentally-ill people
only burn the Quran. Have you ever heard of some mad person burning Bible or
any other religious book? This is not madness but in fact an effort to secure
a visa for a foreign country and to defame Pakistan.” Some of Rao’s colleagues
think he is affiliated to a banned sectarian outfit. However, he denies it,
saying: “I am member of only one party and that is Namoos-e-Risalat
Lawyers’ Forum. As a Muslim, it is my fundamental right to defend Islam and
as a Pakistani it is my basic right to defend Pakistan and I am only doing my
job.” The forum, which is
established to protect the dignity of the Prophet (PBUH), played a very
important role in the Mumtaz Qadri case. It submitted a petition in support
of Qadri which was signed by 1,000 lawyers of Islamabad and Rawalpindi. Its
members used to greet Qadri in the court by showering him with rose petals.
“It was after our efforts that all lawyers of Islamabad and Rawalpindi
refused to take up the murder case of Salmaan Taseer,” he says. Rao also maintains a
Facebook page under the title of ‘Namoos-e-Risalat Lawyers’, that was
updated last time on August 26, 2012. On this Facebook page, a booklet in
support of Pakistan’s blasphemy laws, pictures of Mumtaz Qadri, Ghazi Ilm
Din Shaheed and Ghazi Amir Cheema Shaheed have been posted. But, ironically,
Rao got a case registered against the Facebook in May 2012 in Islamabad for
posting blasphemous material. His forum also strongly
criticised the government for awarding Tamgha-e-Pakistan to Salmaan Taseer,
terming him a blasphemer. “For me, Mumtaz Qadri is
a hero, he did the right thing and that is why I am representing him in the
court. I want to make it clear that we will defend blasphemy laws and if
somebody tries to change these laws by force, we will reply with more
force,” declares Rao. He has already submitted
two different applications with the Islamabad police station for registering
a case against the Geo TV under blasphemy law as it aired ‘blasphemous
movies’ like The Message and the Tenth Commandment. In June, 2012, he also
approached court and got a stay order against the Beaconhouse School System
for arranging a debate on gays and lesbianism. He not only succeeded in
stopping this debate but also filed an application with the police to
register a case against the management of the school. He was also among those
who burnt American flags at the entrance of Islamabad court in July 2011 in
protest against the act of American priest Terry Jones who burnt the Holy
Quran. Some of his speeches in
favour of Mumtaz Qadri and blasphemy laws have also been uploaded on YouTube.
In one of the videos filmed at ‘Ghazi Mumtaz Hussain Qadri Conference’
held in Islamabad back in October 2011, Rao roars in support of Qadri in
front of scores of charged supporters of Qadri, terming him a follower of
Ghazi Ilm Din Shaheed and Salmaan Taseer a follower of Raj Pal. “We did not
know about Aasia Bibi, but this ‘Mardud’ (Salmaan Taseer) publicised her
through his press conference”.
A
“sorry” tale Shortly after
midnight on September 26 last year, Pakistan’s border post of Salala in
Mohmad Agency was attacked, not by the terrorists but by its own ally in the
war on terror. The event was the last straw for the already disgruntled
Pakistan Army. Starting with the furor
that erupted over the Raymond Davis case to the raid on Osama bin Laden’s
compound in Abbottabad, the army was kept in dark, at least officially. The
Salala attack killed 24 soldiers and wounded many. Immediately the Pindi
headquarters were approached which transmitted the message to the Afghan
based Nato office. “The message was not only received but acknowledged, and
a promise was made to halt the aggression,” according to a Pakistan’s
highly placed defense official. This Salala incident
finally sunk the already floating and mistrusted relationship between the two
countries. It took eight months and exhausting communication efforts between
the officials to keep the relationship workable. The matter is still so
sensitive that all the officials who commented for this article asked not to
be named. All interviews were carried out in strictly private settings. By the time the news of the
attack reached Washington, it was already late in the morning on Saturday, an
official holiday. Pakistan Embassy officials contacted their point persons in
the Defense and State Departments. The initial meetings issued a condemnation
of the attack. The American side reciprocated right away. Secretary Clinton,
Gen. Dempsey and Gen Allen each called their Pakistani counterparts to offer
condolences. As a result of this attack,
however, the Nato supply routes going to Afghanistan through Pakistan were
blocked. The US-Pakistan relationship shifted from “I scratch your back and
you scratch mine” to “you twist my arm and I twist yours,” commented
one US official. Rather than any demands, chaos reigned. “This confusion stems out
of the internal struggle that has been going on between different Pakistani
institutions like the parliament, judiciary and the army since 2007,” says
Dr Manzur Ejaz, a renowned anthropologist and historian, based in Virginia.
What added fuel to fire was Pakistan’s refusal to attend the Bonn
Conference in Germany on the future of Afghanistan. But Pakistan’s message
was conveyed. It’s angry, it’s upset. Now once the Ground Lines
of Communication were suspended, the US started treating Pakistan as its
adversary, claims Manzur Ejaz. “Americans were aware of their weakness, so
they used the northern route across Central Asia. At this point it was the
matter of ego.” Pakistan later came up with a demand for apology, while
suffering from funds it deserved, whereas the US had to spend at least 10
million dollars a month for the alternate route. Pentagon announced that it
would conduct a thorough investigation into the matter. Pakistan refused to
cooperate. “Pakistan had witnessed such mistrust before,” said a
Pakistani defense official. “We wanted to put an end to such an aggression
from an ally.” In December, 2011 the findings and conclusions were
forwarded to the Pakistani, Afghan and Nato leadership. According to the
investigation officer Brig. Gen. Stephen Clark, the U.S. forces acted in self
defense. However, efforts to talk to
Pakistan were made. State Department representatives were not allowed to
visit the country, let alone talk extensively and openly on the issue with
their Pakistani counterparts. Ambassador Munter met with the President Asif
Zardari and Chief of Army Staff Gen Kayani to lift the ban on the Nato supply
lines, but the meetings were in vain. Munter reported back that none of the
leaders he met asked for any apology. “He miscalculated, and wasn’t aware
of the growing sentiments,” said one Pakistani official. The US stands behind its
report while Pakistan calls the findings “not credible enough”. To up the
ante further, the Pakistani government also announced that its parliament
would debate a resolution about the future of the relationship. In the vacuum
of inaction, a war of words erupted in American and Pakistani newspapers. One
side was accused of breaching trust, the other was accused of being an
unreliable and greedy partner attempting to extort more money for its
services. Pakistan, officially and on the record, never asked to raise the
price for each Nato truck crossing through Pakistan. “This might have been
under discussion but was never considered seriously,” another Pakistani
diplomat told TNS. Nevertheless, the story about the truck fees made it into
the pages of the Washington Post, resulting in another round of criticism. Almost all the US officials
we talked to maintain that Secretary Clinton was the one who wanted to issue
an apology right away to restore relations, but apparently the White House as
well as the Defense Department had reservations. The State Department’s
diplomatic corps at one point won the argument and was ready to issue the
apology around February but was asked to wait by the Pakistani authorities.
While the Americans were waiting for the “right time”, the Pakistani
diplomats were pushing for the parliamentary review to finalise its
recommendations. By the time they were ready, a Quran-burning incident in
Afghanistan brought embarrassment for the western security forces. Issuing
one apology after another became a cliché for the Obama administration. This fact never came out
that in the meantime there were at least four to five drafts for an apology
that were exchanged between the US and Pakistani officials. Apparently, the
language of the letter became an issue in itself. According to a well-placed
US official, Pakistan’s military chief proposed the content too — which
was dismissed. This exchange and the time consumed tried the patience of
Pentagon officials. Military bigwigs announced that they prefer the Northern
Distribution Network (NDN) route and want to move on without any apology.
“The emotions were running high,” said one US official, adding that
“such statements represented nothing but mere frustration.” The administration was
getting mixed signals — to apologize or not to apologize. There were
conflicting reports as to whether Pakistan would agree or refuse to resume
the Nato routes. The recommendations were forwarded by the parliament in
April but by then a lot of water had passed under the bridge. In May, 2012, Pakistan’s
Foreign Minister Hina Rabbani Khar stated that Pakistan had made its point by
closing the border and now was ready to work with the international
community. A week before the Nato summit in Chicago, Islamabad also announced
that they had approved the reopening of the supply routes, but the new
accord’s final details were not worked out. This decision prompted Nato
officials to ask the White House to extend an official invitation to Pakistan
for the Chicago meeting. Authorities aware of the
situation recall that just as the administration decided to rescind the
invitation, Pakistan agreed to attend. The authorities add that President
Zardari was given a clear indication not to commit to anything, especially
the reopening of the routes. But the mere attendance was not good enough for
the parties concerned. The White House announced that President Obama had no
plans to meet President Zardari. “President Obama’s
address to the summit snubbed Pakistan by pointedly excluding mention of
Pakistan while praising the Central Asian states that provided the US access
to Afghanistan through the Northern Distribution Network,” wrote Reza Jan
in an article. Reza, an analyst and the Pakistan Team Leader for the Critical
Threats Project at the American Enterprise Institute, a Washington think
tank, told TNS, “Their message was clear that the US was not going to
entertain Pakistan.” The diplomats from both
sides “arranged” a coincidental meeting between the presidents. “This
was much needed to break the ice,” a US official commented. Meanwhile, the sideline
talks were set in motion. Secretary Clinton had a long meeting with the
Pakistani delegation headed by President Zardari. Insiders informed TNS that
Clinton was “not happy” with the situation, though the delegation pushed
President Zardari to ask for an apology. He did and the point was taken. After extensive
communication, Thomas Nides, deputy secretary of state for management and
resources, and Pakistani Finance Minister Abdul Hafeez Shaikh successfully
negotiated the route opening deal. But the final deal, officials hint,
include the role of strategic assets and their shares after the US leaves
Afghanistan. Soon after the language and
the time of the apology were agreed to, Secretary Clinton called the
Pakistani foreign minister, and later issued a statement that said: “We are
sorry for the losses suffered by the Pakistani military.” “The word is ‘sorry’
not ‘apology’ so it really depends who you speak with about it,” Reza
said. Dr Manzur Ejaz agrees. “It’s not an ally-friendly relationship.”
The new policy for Pakistan bears few carrots and more sticks, he further
said, adding “politically, the Pakistan army took charge of the affairs
once again and the civilian government takes a back seat.”
In recent months,
killings of Shia Muslims in Pakistan have touched new heights. The killers,
ostensibly from the jihadist Deobandi groups, have invented new methods.
Buses are stopped on the highways and sects of passengers are identified with
the help of their names on the national identity cards. Those who are
identified as Shia Muslims are killed. In other cases, people are
made to take their shirts off to see if their backs carry any signs of
flagellation. Those with marks of flagellation on their backs are brutally
killed. The state is unable to
bring the killers to justice. The rise in the killings of Shia Muslims
coincides with the release of hundreds of terrorists including Malik Mohammad
Ishaq, Pakistan’s top terrorist and one of the founders of the
Lashkar-e-Jhangvi (LeJ), the armed wing of the Sipah-e-Sahaba Pakistan, by
the High Courts and the Supreme Court. The anti-Shia sectarian
violence drastically increased after Malik Mohammad Ishaq was released on
bail in July 2011 by the Lahore High Court. The Punjab government had to put
him under house arrest more than once to silence the public protest against
his release. He was released for the last time earlier this year after the
public protests died down. After his final release,
Malik Ishaq also became active in the Defense of Pakistan Council (DPC)
activities. The DPC is an umbrella alliance of more than 40, big and small,
terrorist groups and some political parties. Its members include Jamatud
Dawah/Lashkar-e-Taiba (JuD/LeT) and Sipah-e-Sahaba Pakistan and
Lashkar-e-Jhangvi (SSP/LeJ). The latter is known to be a Pakistani affiliate
of the al-Qaeda. Hundreds of
Kalashnikov-toting workers of the LeJ and its parent party, the
Sipah-e-Sahaba Pakistan (SSP), welcomed Malik Ishaq outside the jail. As he
came out of the jail gate, Ishaq said that he and his followers were ready to
lay down their lives for the honour of the companions of Prophet Mohammad (PBUH).
Interestingly, the welcome group outside the jail was led by Maulana Ahmed
Ludhianvi, the head of the Sipah-e-Sahaba Pakistan, which has been claiming
to have no links with the Lashkar-e-Jhangvi, which removed whatever doubts
there could have been about their links. Pakistan’s political
system is still able to absorb terrorists while the judicial system is unable
to punish them. Malik Ishaq confessed in an interview with an Urdu daily in
October 1997 that he had been “instrumental in the killing of 102
people”. Still he can be a free man. Soon after his release on
bail, Malik Ishaq started his campaign against the Shias which resulted in
more violence against them. Consequently, the local administration put him
under house arrest. In spite of all such half-hearted efforts, the anti-Shia
violence went considerably high. Later, the government extended the detention
period for another 30 days. As the 30-day detention period was about to
expire, the government extended the detention for another 60 days. In
December 2011, the Provincial Review Board agreed to extend the detention
period for another 30 days. However, the Lahore High Court finally released
him on January 20, 2012. The SSP/LeJ is one of the
few terrorist groups which has been taking part in the elections and also
winning in some constituencies. However, more importantly, the election
results have shown a solid following of the group in several other
constituencies where the SSP candidates cannot win. According to a jihadi
publication, Ummat, his release had been made possible through an agreement
between the SSP/LeJ and the Pakistan Muslim League (Nawaz), the governing
party in Punjab. The SSP/LeJ helped the incumbent Chief Minister, Mian
Shahbaz Sharif, get elected unopposed from District Bhakkar with the help of
Malik Ishaq’s brother. The claim does not seem far fetched, given the
political links between the two parties. Soon after the Pakistan
Muslim League came into power in 2008, it started providing financial support
to Malik Ishaq and his family. According to a senior security official, the
Pakistan Muslim League (Nawaz) and the SSP/LeJ have agreed to silently
cooperate with each other in the next general elections. The LeJ was first banned in
Pakistan by General Pervez Musharraf in August 2001, however, no practical
measures were taken to demolish its organisational infrastructure. The United
States designated the LeJ as a terrorist group in 2003. One of the reasons
was its involvement in the kidnapping and later murder of the Wall Street
Journal journalist Daniel Pearl. Malik Ishaq was born and
raised in village Tarinda Swai Khan in District Rahim Yar Khan. He went to a
local school and then to a local madrassa. Later, he set up his own shop in
Rahim Yar Khan in the early 1980s. At the same time, he started taking
interest in local politics. He also organised a union of local shop-keepers. As the forests around Rahim
Yar Khan attracted a lot of Middle Eastern royals for illegal hunting, he
came into contact with some of them. Malik Ishaq’s Arab contacts helped his
mentor and the founder of the SSP, Maulana Haq Nawaz Jhangvi, to organise his
group in 1986. For the next decade, the SSP was involved in scores of
terrorist attacks on the Shia Muslims in Pakistan which resulted in hundreds
of deaths. As the pressure on the SSP
grew, it decided to separate its armed wing under the name of
Lashkar-e-Jhangvi in 1996. From then onwards, the SSP did politics and the
LeJ the killings. The two pretended to have no links. According to a senior
security officer, the separation of LeJ from the SSP was brought about to
have close cooperation with the al-Qaeda. Henceforth, most of the LeJ
cadres were trained in the al-Qaeda training camps in Afghanistan. On July 11, 2011, the
Lahore High Court granted bail to Malik Ishaq for lack of evidence in the
much publicised case of attack on the Sri Lankan cricket team which he was
alleged to have planned from behind the bars. Like other cases of terrorism,
the prosecution had hardly worked on this case. The prosecution produced two
witnesses who stated that they had heard some people saying a group had
planned to carry out an attack on the Sri Lankan team in Lahore to get Malik
Ishaq released. The case of Malik Ishaq was
not a lone case. Soon after releasing him,
the Lahore High court ordered the provincial home ministry to stop the
provincial police from keeping another 25 SSP terrorists under their watch. Malik Ishaq is an accused
in 44 cases of terrorism and murders. He has already been acquitted in 34 of
44 cases. He had confessed and was convicted in two cases and served the
sentences. He remained behind bars for 14 years. Five witnesses and three of
their relatives were killed during the trial. Ishaq was acquitted for lack of
evidence. Many of the witnesses and
their relatives in cases against him, like in cases of other LeJ terrorists,
were killed. When four witnesses identified Ishaq during a trial of a case in
which 12 Shia Muslims were killed, Ishaq told the judge during his trial that
“dead men cannot talk”. Five witnesses and three of their relatives were
killed in terrorist attacks during the trial. In March 2007, the LeJ carried
out a bicycle bomb to kill a judge who was on his way to hear his case. The
driver of the judge and two policemen also died in the attack. Ishaq was
charged with planning that attack but he was acquitted for lack of evidence. For Pakistan, Malik Ishaq
is a good Taliban as his group does not carry out attacks on the Pakistani
military and is ready to carry forward the military’s national and regional
agenda. The Tehreek-e-Taliban Pakistan (TTP) attacked the General
Headquarters in Rawalpindi in 2009 and Malik Ishaq was one of the terrorist
leaders who was reportedly flown in special military airplane to negotiate
with the hostage takers. Being in a jail, Malik
Ishaq was, according to sources, flown in the personal aircraft of the army
chief, General Ashfaq Pervez Kayani. Another plane, belonging to the ISI
chief Shuja Pasha, reportedly flew Maulana Ahmed Ludhianvi to Rawalpindi.
Other good Taliban who were flown by the Pakistani military to Rawalpindi
included Maulana Fazalur Rehman Khalil, the ameer of Harkatul Mujahideen, and
Mufti Abdul Rauf, the younger brother of ameer of Jaish-e-Mohammad Maulana
Masood Azhar. According to another
security officer, the Pakistani military had also agreed to help release
Malik Ishaq and some other SSP/LeJ terrorists for the role the SSP/LeJ played
during the siege of the Army General Headquarters in 2009. The military’s
support made the task of the PML-N easy. (Presently, Malik Ishaq is
in Kot Lakhpat prison, Lahore, on judicial remand.) The writer is a US-based
journalist and author of ‘Shadow War — The Untold Story of Jihad in
Kashmir’
The
route to conflict Gilgit Baltistan
made it to the front pages of national newspapers at the start of year 2012
— not for its lush green valleys and frequented tourist spots. The year
dawned with grim killings of innocent people and so far 45 lives have been
lost to sectarian terrorism. Overall Gilgit Baltistan
has enjoyed religious harmony among various sects of Islam, except in Gilgit
city where the social fabric is divided along sectarian lines. The recent
wave of terrorism seems to have shifted to the northern side of the country
with repeated terrorist acts mostly targeting the Shia community. “There is a consensus
among various groups of people in the area that these are acts of terrorism
and terrorists manipulate the situation and try to give it a sectarian colour,”
says Rahat Ali, an MBA student. Rahat Ali substantiates his
argument by saying that many Sunni people have also lost their lives trying
to protect their Shia fellows. While sharing his story
with TNS, Sajjad, a professor in a public sector university, who was
travelling in the ill-fated bus on August 16, 2012, says in the Babusar bus
carnage four Sunnis were killed by terrorists as they came forward to save
their Shia fellows. He claims that his life was saved due to the Sunni
driver, adding that terrorists beat up the Sunni passengers for not being
supportive in identifying the Shia passengers. The people of Gilgit Baltistan
see these heinous acts as acts of terrorism meant to destabilise the
strategic area and a potential trade corridor for Pakistan. Nawaz Naji, member GB
Legislative Assembly, says that the real problem behind sectarian unrest lies
in the curriculum being taught in educational institutions that produce
corrupt minds in the society. He says Pakistan may be saved only by
introducing an unbiased curriculum in educational institutions. “Sectarian
issue in Gilgit is a product of this curriculum,” he says. Majority of people think
that nothing has been done by the security establishment and the government
to curb terrorism and secure the strategic route of Karakoram Highway (KKH). Chief Minister GB Syed
Mehdi Shah claimed during a recent Baltistan Student Federation convention
that 410 security personnel have been deployed on KHH and now it is a secured
route. Federal Minister Rehman Malik had also visited Skardu and held
meetings with different sects. He is of the view that these are terrorist,
not sectarian acts. Raja Azam Khan of the MQM,
Minister for Planning and Development, has a different point of view. He says
that mindset of the people needs to be changed to strengthen sectarian
harmony in the area. He suggests formation of an ulema board consisting of
people from all sects to restore peace and harmony in the Gilgit city. It is worth mentioning that
a mosque board has been set up by the government in January 2012 consisting
of 14 members in Gilgit belonging to Shia and Sunni sects. Following this
initiative, nobody is allowed to use controversial sermons during the juma
prayers. Terrorist acts are also
causing economic losses as the only supply route to and from GB is KHH which
remains closed for weeks after every such incident. KKH is also the main
trade corridor between Pakistan and China. Ghulam Rasool, a trader in Gilgit,
says that truck drivers are reluctant to ply on KHH for security reasons,
affecting the demand and supply in market that affects ordinary people. The writer is The News
correspondent in Skardu
Sceptic’s
Diary Seeing a liberal
praying for a conservative to arrive on the scene isn’t something you are
likely to witness often. In that sense we are witnessing a truly historic
phase in Pakistan’s history. Many in Pakistan who identify themselves as
‘liberals’ (from politicians to media folks) are in effect now praying
for Supreme Court Justices who believe in judicial conservatism. Judges following this
ideology place a premium on democracy taking its course and prefer waiting
for the legislature to fix problems — even if the legislature doesn’t
act, judicial conservatives abhor getting involved with ‘legislation from
the bench’. For some the downside to this approach is that the written word
is construed strictly and rights not expressly granted are not read into
constitutions. But their defence is powerful: if the people want certain
rights or policies, it is the legislature’s job to enact these. If the
legislators don’t do their job then let the people vote them out. Judicial
conservatives also oppose going into inherently vague areas such as the
intention of the legislators. They read words and interpret them. They
don’t claim to know what can’t be known, e.g. what motivated a person.
They firmly believe that the people and their representatives should have the
final say. And they never claim that courts represent the voice of the
people. The history of judicial
decision making in this country is replete with instances where conservative
social attitudes of judges have informed their decision making — often
hurting various segments of the population. Judicial conservatism, of course
distinct from social conservatism, has been present in court judgments but
there is no organised intellectual platform pushing for it. It is in the
interests of politicians and policy makers to facilitate training of young
lawyers and judges in this tradition since the lack of patience by judges
with democracy, and resultant hyper activism, can prove fatal to it. Let’s
also remember that the only way military coups have been validated in
Pakistan is through judicial activism — courts have gone beyond the text of
the constitution to invent doctrines. Learning that one has to be
patient with democracy is half the battle for its continued existence.
Dictatorships are like summer flings — offering a departure from the norm
with some excitement thrown in. Democracy is a lot more like a real
relationship. It involves compromises by all involved and requires a certain
amount of faith in what you are trying to build. This faith isn’t always
present in individuals or institutions. It requires work and training. It
also requires foregoing opportunities to make history with your name stamped
on it. The Supreme Court, at present, is ostensibly finding it hard to resist
such temptations. A good way to guard against such temptations in the future
is to pack the court with judges steeped in judicial conservatism. Those arguing that an
inactive legislature or allegedly corrupt Executive justify hyper judicial
activism should analyse their reasons once again. Consequence based reasoning
is hardly ever a sound basis for enduring systems and institutions. Suppose
if the courts fail to convict terrorists or take too long or are just too
conservative would the Executive be justified in carrying out extra-judicial
killings? Speak to anyone who has been involved with such killings and they
will give you a moral justification: if the police don’t kill these
suspects in “encounters” the courts will set these people free and they
will terrorise or commit crimes. And this makes me think: do hyper judicial
activism and extra judicial killings have certain parallels? This isn’t a
conclusion, merely a question for you to consider. In both situations an
institution or its agent makes a call that another institution isn’t doing
its job properly and a solution is required. Also present is the public
welfare/utilitarian argument. The cover of law eventually is extended to both
but underlying it all is politics. So what if one thing is a crime and the
other is not? Anyone not naive could easily explain the irrelevance of what
you define as a crime. As much as our courts may
not like the policies or actions of the Executive or Legislature they must
exercise restraint to the greatest extent possible. And they are not doing
that at present. A judge saying that his patience has run out and pointing to
certain issues in society is and should not be the test. In his latest book, Justice
Scalia of the US Supreme Court has elaborated on approaches to interpretation
that those interested in judicial conservatism can learn from. One hopes that
all of our Supreme Court Justices will read it. The Foreword of this book by
Judge Easterbrook makes another powerful argument why judges must stay away
from policy making. Legislators and even the Executive in a democracy are
always on a tight leash — their terms are of a relatively short duration
— compared to judges who, unless they do something seriously wrong, will
stay till retirement. Therefore accountability matters in a democracy. Also,
let us face it, our Supreme Court has not been very amenable to the idea of
accountability through elected officials or bodies composed of them. If ‘all law is
politics’ then why not treat it like politics. Judicial conservatism is
what the politicians and think-tanks of Pakistan should invest in. It is what
they should fund at law schools so future judges and lawyers can be immersed
in it. Pakistanis who identify themselves as liberals in a blanket way should
also consider the good that at least one form of conservatism can do for this
democracy right now. The writer is a Barrister
and has a Masters degree from Harvard Law School. He is a practicing lawyer
and currently also an Adjunct Professor of Jurisprudence at LUMS. He can be
reached at wmir.rma@gmail.com or on Twitter @wordoflaw.
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