of an idea
The battle for the Constitution
The issue is not whether the parliament is supreme or not
but whether the
By Faisal Siddiqi
"The Supreme Court is the ultimate arbiter of law and the Constitution" — Chief Justice Iftikhar Muhammad Chaudhry, The News, 7-10-2010
"Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents and purposes, and not that person who first wrote or spoke them" — Bishop Benjamin Hoadly
Unlike military battles, in constitutional battles, the pen [law/constitution] is mightier than the sword [executive]. And even mightier than the pen, or the pen-holder [parliament], is the institution [judiciary] which gives ultimate meaning or interpretation, to what the pen-holder has written or legislated. The issue, therefore, is not whether the parliament is supreme or not but whether the interpretation of the constitution has supremacy over the ‘constitutional text itself’?
In other words, the current constitutional battles about the legality of the NRO judgment, the correct interpretation of presidential immunity under Article 248 of the Constitution and the power to strike down provisions, or to request (impliedly direct) the parliament to rethink the provisions, of the Eighteenth Amendment, raises the question about the power and limits of the interpretational power of the judiciary.
If re-phrased in the form of a question, one would ask whether the judiciary can constitutionally re-write or change the meaning of the ‘constitutional text itself’ by the process of interpreting the constitution.
But as poet Munir Niazi would say, "since the questions were wrong, therefore, no answers could be given". To say that the judiciary is re-writing or changing the meaning of the constitutional text itself by the process of interpretation is based on a highly problematic presumption — that there is a correct, recognised and discoverable meaning of the constitution which the judiciary is allegedly changing or mis-interpreting.
The modern legislative/political elite’s presumption of a correct, recognised and discoverable meaning of the constitution is, at best, a desire and, at worst, a modern rational myth. Any edition of the fat and expensive copy of "Lloyd’s Jurisprudence" would at once bring home the fact that even the best legal minds like Austin, Hart, Dworkin, Habermas etc. have not been able to agree on an answer to the very basic question: ‘what the law is’?. Or for that matter, for the last over 200 years, the numerous judges of the US Supreme Court can’t even agree on a common interpretational approach to the US Constitution i.e. whether a literal or liberal or historical or dynamic or purposive or reading down, interpretational approach is the correct approach. It is precisely for this reason that, over the years, the US Supreme Court has invented and constructed multiple contradictory meanings of the US Constitution.
What the above discussion points too is the recognition that the only agreeable meaning of the Constitution is that there is no agreeable consensual meaning. In short, like life, an existentialist crisis is at the heart of constitutional interpretation. Instead of trying to resolve this interpretational debate about the correct meaning of the constitution, historically, the American and Indian political elites simply handed over the custody [interpretational supremacy] of the Constitution to the Supreme Court. In other words, whether discovered, interpreted or constructed, the meaning of the Constitution literally became what the Supreme Court says it is.
By making the Supreme Court the "King of Interpretation," the American and Indian political elite avoided constitutional interpretational civil war between various organs of the state over the correct meaning of the Constitution. But they didn’t fully understand the power implications of this handing over of interpretational constitutional supremacy to the Supreme Court. In Foucaultian terms, judicial power [interpretation constitutional supremacy] produced exclusive constitutional knowledge [meaning of the constitution] and this exclusive constitutional knowledge reinforced and increased judicial power. For example, if the prime minster’s powers under the constitution are produced [discovered, interpreted or constructed] by the judiciary, then in essence, the extent and limits of the prime minister’s powers is dependent on judicial interpretation/power.
It is in the abovementioned historical and philosophical context that the Chief Justice Iftikhar Muhammad Chaudhry’s doctrine of ‘Judicial Constitutionalism’ [The News, 7-10-2010] has to be understood. The Honourable Chief Justice does not like to call this approach as ‘judicial activism’ but as Shakespeare would say "What’s in a name? That which we call a rose by any other name would smell as sweet". But the true brilliance of this term lies in its prioritisation/conceptualisation: it is ‘judicial constitutionalism’ and not ‘constitutional judicialism’. The judiciary discovers, interprets or constructs the meaning of the constitution and not the other way around. In other words, the judiciary constructs constitutionalism and, in return, constitutionalism constructs judicial power in favour of the judiciary itself. In short, the judicial [construction of] Constitutionalism confirms the judiciary’s victory in the battle for the constitution.
It is in terms of the chief justice’s doctrine of Judicial Constitutionalism that certain ‘novel’ orders of the Pakistani Supreme Court have to be understood. For example, neither under a literal or liberal interpretation of the Constitution (a) could the Supreme Court extend the legal life of the NRO for another four months beyond the four months as laid down in Article 89 of the Constitution [Sindh High Court Bar Association judgment Dated: 31-7-2010], or (b) nor could the Supreme Court request (impliedly direct) parliament to reconsider a constitutional amendment in terms of its judicial observations [Order dated: 21-10-2010 in the 18th Amendment case].
But these ‘novel’ orders are completely understandable if the judiciary has constitutional supremacy to discover, interpret or construct constitutional meaning. In short, the judiciary is the constitutional driver which drives the constitutional car and the constitutional car will go where the judiciary takes it.
But this is not a wild trip because the Pakistani Supreme Court has given concrete indicators which determine its interpretation of the Constitution. First, "not every interpretation is possible" as the postmodernist would have us believe. For example, the constitution cannot be used to justify military rule because where military rule exists, by definition, the constitution does not. Second, there will be no compromise on judicial independence.
Third, there is respect and recognition of the role as well as, most importantly, the power of other institutions of the state. Orders such as in the Eighteenth Amendment case are endeavours in, what Kamran Sheikh calls, the "constitutional dialogue between institutions".
Fourth, the enforcement of fundamental rights of the citizens is the tool through which the public and political legitimacy of the judiciary is created, sustained and increased. Or as a former chief justice of the Indian Supreme Court noted, public legitimacy and effective orders, not constitutional theory, guides the constitutional doctrine of the Supreme Court.
Fifth, the constitutional approach is not based on discovering the "true" or "ideal" constitutional path but rather by arriving at such a negotiated constitutional meaning which has the most utility for the people of Pakistan, and is the most pragmatic and practical path in these very difficult political and constitutional circumstances.
The path narrows
By Sarwat Ali
Asad Qizilbash, the only sarod player of any note in the country, has been receiving threats and these threats have been directed against his music and his effort to propagate it by teaching it to as many as those willing.
And the threats have not only been limited to his person but have also engulfed his family. He was asked by a group of men to remove the board outside his house. "I recently tried to start music classes at my house for those who are interested in learning the art. I got a small board painted with different musical instruments and displayed it outside my house. My son playing in the street with his friends, was approached by a group of young men. They asked him who lived in the house where a music class board was installed. They scolded him and told him to convey the message to me to immediately remove the board and stop teaching music."
Asad said he did not take the threat seriously and left the board on display and continued to teach music to a few students who joined his classes.
Only two days after the first incident, the same group of young people turned up again at the site where his son was playing with his friends and this time they were much harsher in their attitude. "We told you to tell your father to immediately remove this board and stop teaching music. But your father has neither removed the board nor has he come to us to explain his position. There are enough evils in society, which have tarnished the image of Islam and we don’t want anybody to add to these evils anymore," they threatened.
If there has ever been a harmless soul, it is Asad Qizilbash. All his life he has struggled to learn the instrument which has few takers at the popular level. Sarod has almost disappeared from the music horizon in the country and his lone struggle has given immense joy to those countless who have heard him reach a definitive level in his playing.
In the past few months or should it be said a few years, the unimaginable has been happening over the length and breadth of this country. Data Darbar was attacked as indeed was the shrine of Abdullah Ghazi , and as if all this was not enough, Baba Fareed — the doyen of the sufis and the first great Punjabi poet’s dargah — was also made the target last week.
All this terror is part of a chain, quite systematic in design and execution. When the shrine of Rehman Baba was destroyed, it could have been considered a one-off thing but the subsequent events have proved it to be otherwise. Sufi shrines have been sanctuaries for all and sundry, irrespective of faith and creed, the last refuge of the dispossessed and the fallen.
In the last thousand years in the subcontinent, during various regimes and orders belonging to many religious denominations, these shrines have been the haven of peace; their doors have never been closed to humanity, always offering food to the hungry and solace to the rejected.
This institution also created space for the arts in its precincts but all this is now under threat. The doors are now being closed on the sad silent humanity.
It started with Khyber Pakhtunkhwa as the musicians came under attack and certain cable operators had their offices ransacked. Armed holy warriors raided the balakhanas in Dabgari Gardens in a crusade to rid society of obscenity and vulgarity. And then it spread all over.
About a couple of years ago, blasts at the Alhamra Complex-Open Air Theatre Festival when many artistes and people had gathered to take part in the an International Festival forced the organisers to shift their venue to the Puppet Museum /Peerus Café as a site for subsequent festivals. And then a number of blasts rocked the Cafe itself.
Other organisations involved in the promotion of the arts, especially the performing arts, have either been the target of bomb blasts or have received threats from time to time. Bombs were detonated at the Alfalah and Tamaseel Theatres in Lahore as a warning to the producers and the audiences to stay away from cultural activity.
Some of the musicians and vocalists have been killed and many attacked just for being musicians/ artistes and the opportunities taken away from them. The occasions where such programmes can be held have been drastically reduced, throwing artistes out of work. Similarly, many theatre artistes for one reason or another have been either harassed to the point of quitting the profession.
The persistent woes of Ajoka too have been the consequence of the authorities narrowing further the path being treaded. The drumbeat of the values being contrary to our traditional culture are deafening out the possibility of an alternate way of thinking and living.
There has been a certain pattern in these blasts designed to warn the people against an activity which, in the eyes of some, is detrimental to the good of the society. Things have come to such a pass that the only way to express one’s intention is through violence and that too in the form of bomb blasts. It is the right of every individual to have an opinion and then to be able to express it openly, and that can only be made possible in an environment of open debate and discussion.
The threat of being blown to pieces shrinks totally the space for debate and discussion.
It is clear now that this interchangeability of immorality and art is a deliberate effort at creating confusion. But the issue is that a certain type of order is being imposed whereas the space for arts, particularly the performing arts, does not exist. And this order also has no place for education, particularly girls education, for coeducation and surely no space for building a society that cherishes openness above all else.
It is quite sad that the arts become the first victim of this way of life and perhaps that is why it is so important to open further and wider the door to the arts.
The recent group show at Poppy Seed is an example of how a show can be salvaged from the dregs of mediocrity by curatorial intervention
By Nafisa Rizvi
The recent show at Poppy Seed titled ‘Querying the Label — Pakistani artists’ responses to the term Islamic Art’ served up an unrealistically paradoxical scenario in which the art shown was commonplace but the statement made was ‘impactful’ because it revealed caveats of some significant ideas as well as the articulation of those ideas.
This is an example of how a show can be salvaged from the dregs of mediocrity by curatorial intervention and be redirected to serve a much larger goal in the landscape of theoretical debate and learning.
There were some inherent flaws in the structure of the show. For starters, the title is far too open-ended to ensure focused, coherent and lucid production so the degree of rambling and disconnect that we find in the work becomes understandable if not forgivable. Also, the premise is just too vast to be articulated by a handful of artists. It requires the accrued energy of at least 50 art practitioners and theorists, sustained over a long period of time for the discussion to evolve into a truly meaningful debate.
Secondly, in the present political scenario, artists are too vitalised by their concerns about religion to actually voice notions about spirituality, which is where the debate should eventually lead. In this slightly garbled morass, it is unrealistic to expect to find a lucid context within which the artwork can develop robustly and with intelligible consequence.
To make matters more convoluted, the label of Islamic art and its inferences are so diverse that they span an entire spectrum of ideologies, from the suggestion that there is no such thing as Islamic Art to the validation that Islamic art exists as much in the transcendental realm as the temporal one.
In spite of all this, to say that the show is a complete washout is akin to throwing the baby out with the bath. There are some sparks of creativity that are indeed electrifying. Manizhe Ali’s short film is as hair-raising as it is facetious. She addresses the Muslim fixation with halal products by creating a fictitious product; Pak Halal cosmetics for women. Her commentary contains the language and tone of a pompous sermoniser and speaks of the mindless pursuance of ritual and dogma.
The young ceramist Zaid Hameed has a more direct though mundane approach. On circular disks of clay, he recreates recognisably Islamic motifs without interpreting the ornamentation or even understanding the more profound aspects of the art in terms of searching for divine perfection in the circular motion of patterning, or the dematerialisation of the object in relation to the word indicating the permanence of the idea versus the transitory nature of the object.
Riffat Alvi’s installation is sensuous in its visual and tactile qualitativeness. Myriad shards of pottery, each piece delineating a calligraphic gesture, are hung in layers forming a cube, ringed on the floor by earth and more of the rubble-like pottery, effectively reconstructing the perpetual and devotional act of moving around the Ka’aba by Muslims. Structured in this three dimensional form, it gives us a perspective on the way things might look from ‘up there’ and suddenly the act itself takes on new meaning in terms of the geometrical design in Nature and so many more nuances come into view. The focal point is still and enduring. It absorbs the energy of the relentless circular motion of devotees speaking His name aloud. There are many other physical signifiers to the acts of fidelity: the layers point to the earthy impediments that obstruct the clear path to God but though the layers are dense, they are not impenetrable; the broken pieces are made of the most organic of all materials, earth.
Other works like those of Asad Hussain can be appreciated for their endeavour to find an inscrutable route to the representation of the idea. Hussain weaves a charpoy by which a baby dangles in a simulated hammock. A fifth leg of the charpoy stands as appendage to the installation. Thus the notion of the five pillars of the religion by which tranquility and safety can be achieved is suggested.
Works by Shakira Masood do not belong in the show as they are romanticised, puerile attempts at depicting a transcendental issue and look more like cutesy posters for a teen’s bedroom wall than art pieces.
Perhaps the most enigmatic inclusion in the show is the work by Imran Mir. A series of five paintings, it depicts the movement of the eye as it looks into the confines of a formal box-like structure and travels from left to right until it reaches the culmination wherein the rudimentary skeletal structure of an organic form is birthed. Away from the context of this show, the work can be read as a modernist production, replete with all the thematic concerns of say de Stijl rather than an embodiment of Islamic principles. Mir’s paintings reflect accurately the Dutch artist van Doesburg’s words when he claimed that "we speak of concrete and not abstract painting because nothing is more concrete, more real than a line, a colour, a surface".
The visual balance and equilibrium that Mir achieves in his work can perhaps be denoted as signifying Islamic ideals if we were to stretch our imagination very far and open our hearts and minds very wide. However, if we were not inclined to be magnanimous, we would say that the rectilinear vocabulary is modernist and nothing more. It would be interesting to discover how the curators surmised the Islamic principles of geometry in Mir’s work.
The most interesting part of the show is not the artwork. In the write-up in the flyer accompanying the show, the two curators actually admit that they "were interested in the reaction to the over-broad label of Islamic Art, but the artists did not address the in/adequacy of the label itself, suggesting that the term has little currency outside of theoretical discussions".
This kind of introspective critiquing is rare for Pakistan where the glorification of mediocrity abounds. What a feat of courage, integrity and honesty on the part of the curators to publish this self-criticism and hope that from it is born a debate of larger proportions!
Ayesha Jatoi’s recent show is both a comment and a specimen
of miniature painting
By Quddus Mirza
Ayesha Jatoi’s show at Rohtas 2, Lahore, illustrates two aspects of artmaking: idea and its execution. Trained as a miniature painter from NCA, she has been venturing into the arena of conceptual art for some time now. The recent body of works, comprising two pieces, was an example of her fascination with conceptual art, along with the usage of minimal means.
A line of text in red spread through the entire walls of the gallery — a personal comment disguised as a narrative on the practice of miniature painting. The artist also showcased two pages from her sketchbook/ journal, in which she had apparently copied entries on ‘Mimesis’ and ‘Miniature and Illumination’ from the Encyclopaedia of World Art Vol. X. In a gesture reminding of Jorge Luis Borges as well as Ayaz Jokhio, she recreated the original description accurately, but in tiny script in pencil on paper. These pages were part of her sketchbook that contained her other works, some of which were shown in previous exhibitions.
The artist intelligently picked the two entries, ‘Mimeses’ and ‘Miniature and Illumination’, which coincidently — and especially so in our context — are connected to each other; mainly because miniature making is often understood to be a form of recreating works of past.
Miniature painting in our scenario invokes issues about originality, authenticity, inspiration and imitation. Ayesha Jatoi has dealt with these concerns by replicating a page that described the practice of miniature painting. Something similar to Borges’ story in which a man in a small town of Spain undertakes the task of rewriting Don Quixote, word by word, identical to the actual book by Cervantes. So the work (the title of Jatoi’s exhibition was Mirror, Mirror!), a reproduction of an existing text, was supposed to be a comment upon the custom of revamping past images in the name of miniature painting.
The significance of this traditional art format in modern times was probed in the second piece from the show. The text beginning from the usual story teller’s opening sentence "Once upon a time…", was about a girl who was "delicate yet seductive, and an accomplished storyteller (A Magic Realist)." The tale continues about her father locking her up "in the basement of their home, with only the facilities of cable TV", and on her contemplations on herself, till "She ‘missed being loved and sought after…. once lively, and vibrant, her colour faded and as the years passed, the lustre left her’; to end on "she was sad and lonely and her imagination was failing her."
The words meticulously transferred on the white walls of the gallery were a lament on the present state of miniature painting and how it has been treated, tried, and transformed under the guise of safeguarding tradition. One can replace the girl in the story with the artist and this could be her personal saga. Beyond that (because every art work is supposed to be a self portrait), the script contained thoughts and recollections of miniature art in the present day Pakistan. How this glorious heritage, once picked from the shelves of history, was cleaned, crafted and offered to the connoisseurs both from the East and the West. How the conventional forms, materials and methods were changed in order to satisfy the taste of a different time. So that modern miniatures have been infused with all ingredients of our contemporary life — transport imagery, weapons, pop songs, cinema actors and optical devices.
In that sense, the work of Ayesha Jatoi was both a comment upon and a specimen of miniature painting. A paradox that does not seem like a paradox if one compares the levels of execution in the art of Jatoi and immaculate surfaces from Mughal miniatures to Pehari School and Rajput states. A modern-day miniature trained artist’s work at Rohtas 2 was executed in as meticulous a manner. Letters varied in sizes, but the whole text was composed inside the gallery in such a way that being in the gallery was like being inside a book, and discovering different pages (walls) of the whole narrative. The level of this execution put Ayesha’s work at par with contemporary art from anywhere, which thrives upon an incredible rendering and professional handling of imagery and material.
However, it was the meaning behind these precisely manufactured words (visuals) that was more important to a viewer. The convincing comment upon miniature, as a mimetic endeavour as well as its loss of imagination in the age of contemporary art, was a personal expression but it appeared as an observation upon the failing state of miniature painting in the present art world. On how this practice, after being glorified as the most important art movement from Pakistan in the last decade of twentieth century is now fading away into oblivion. Yet it is envisaged that miniature painting, like many other forms of art, like calligraphy, fresco and tempra, will survive in future, but most probably on the margins of mainstream.
One could identify with the feelings of Ayesha Jatoi on the prospective loss of another "tradition" but looking at the work, its level of execution and the depth of understanding, one wondered why the question of miniature painting still haunts her; because an artist of her calibre must not be bound by the traditional arts of this land.
(The show was held from October 19-30, 2010)