This has been a
rollercoaster week for our nation. And as our media channels and public
debate attempts to grapple with the news of the hour — hooliganism of
“Ishq-e-Rasool Day” and the drama of writing the Swiss letter — one can
be forgiven for having missed the detailed order of the Supreme Court of
Pakistan in striking down the Contempt of Court Act, 2012 (COCA, 2012).
Let me state at the outset
(as I have in the past) that, in my opinion, COCA 2012 was a bad law. It was
an ill-conceived and frenzied attempt, by a government backed into the
corner, to provide legislative cover to its persistent defiance of the apex
court’s orders. And as such, it was destined to be struck down. In this
regard, the short-order of the Supreme Court (announced in August) was
legally sound and constitutionally imperative.Be that as it may, the detailed
judgment (almost 150 pages-long) requires a deeper look.
The judgment, purposefully,
starts by putting COCA, 2012 against the backdrop of the NRO saga. There seem
to be two reasons for this: 1) the judgment emphasizes that understanding
this background is important for deciphering the legislative intent, and 2)
the petitioners’ counsels emphasize this background to establish that COCA
2012 was a ‘colourable’ legislation, passed for individualistic rather
than public good. And in this context, the judgment traces the history of
contempt law, emphasizes its importance, discusses the ‘independence of
judiciary’ at length, and quotes customary religious passages as well as
While a comprehensive
comment on the entire judgment is beyond the scope of this piece, the
essential conclusions of the court can be summarized as follows: i) Article
204 of the Constitution gives court the power to punish “any person” who
is convicted of contempt, and does not envision immunity for any particular
class of individuals; ii) immunity to certain “public office holders”
from contempt of court, per COCA 2012, violates Article 25 of the
Constitution (discrimination); iii) Article 248 does not provide any
protection against criminal proceedings, and thus it cannot be made the
touchstone for providing immunity from (criminal) contempt; iv) per Article
204, read with Entry 55 of the Federal Legislative List, the legislature may
“regulate” the “procedure” for contempt, but powers of the Supreme
Court cannot be curtailed; v) by defining ‘contempt’ as “scandalizing a
Judge in relation to his office” (instead of using “Court”, as in
Article 204) the legislation attempts to curtail the circumference of
contempt; vi) the automatic suspension of a contempt order, under COCA 2012,
is an appropriation of the judicial function by the legislature; vii) a
legislated method of transferring cases from one bench to the other infringes
upon the powers and discretion of the pater familias; viii) the legislation
propagates delay in the dispensation of justice; ix) repeal of the previous
contempt enactments has been done without assigning any reason; and x) owing
to these fatal flaws, no part of the legislation can be saved and thus it
must be struck down in its entirety.
And, as expected, while
deliberating each of these issues, the underlying ethos of the judgment has
been that provisions of COCA 2012 violated the sacred principle of
‘independence of judiciary’.
The judgment is legally
sound and constitutionally coherent. But still, some questions must be asked:
first, while deliberating the limits of parliament’s authority to legislate
on issues concerning the judiciary (per Article 70(4) and Entry 55 of the
Federal Legislative List) the judgment talks about the importance of
interpreting provisions of the Constitution through ‘literal’ (or golden)
rule of interpretation — meaning the judiciary must interpret the words per
their prima facie stated meaning. This begs the question whether the court
will be willing to employ the same standard while interpreting Presidential
Immunity (under Article 248(2))? Or why the court shied away from this
‘golden rule’ when entertaining the challenge to the 18th Constitutional
Amendment, when the Constitution plainly bars such jurisdiction of the court
(per Article 238(5) and 239(6))?
Separately, while frowning
upon the parliament’s attempt to legislate a method of transferring cases
from one bench to another (or larger bench), the judgment declares that
“under the Constitution” and the law “it is not only the privilege but
the duty and obligation of the Chief Justice to personally preside over all
For those students of law
who consider the office of the honourable Chief Justice as simply the
administrative head of the judiciary (and not judicially ‘higher’ to that
of any other judge of the apex court), this declaration rests unwell. Are we
to assume that cases heard by benches not headed by the honourable Chief
Justice are not “important”? Is it really an affront on the independence
of judiciary to dispassionately automate the procedure of bench formation and
case allotment? Would such a procedure, not dependent on any individual’s
discretion, not be more ‘independent’? Would it not have dispelled the
(even false) allegations of tainted justice if Dr Arsalan’s case had been
fixed before a bench, per the law, rather than per the discretion of the
honourable Chief Justice?
Alongside this order,
Justice Khawaja and Justice Khilji have added their ‘brief note’, both
touching upon the themes of independence of judiciary. The first of these, by
Justice Khawaja, emphasizes an extremely important distinction between
‘disobedience contempt’ (committed by flouting a judicial decree) and
‘scandalizing contempt’ (committed by ridiculing or debasing the court or
a judge). Only the second of these, the note describes, has any (possible)
nexus with judicial ego. In making the point that the judiciary has been
exercising restraint, and not using contempt law as an instrument of ego,
this note discloses the number of contempt cases filed over the past four
years, and emphasizes that a very small fraction relates to ‘scandalizing
However, a closer look at
the numbers reveals that while only 2 (out of 371 cases) related to
‘scandalizing contempt’ between 2009 and 2011, this number has jumped to
20 (out of 77) for the current year. Is this not a symptom of a
hypersensitive contempt culture? Can it not be argued that the ensuing
turf-war between the judiciary and the government has provided people with an
opportunity to pick sides and use contempt proceedings as a sword rather than
In all, while striking down
COCA 2012 on constitutionally cogent grounds, the judgment enters into an
elaborate discourse on the need and importance of independence of judiciary.
This idea perseveres as the judicial theme across most of the recent apex
court judgments — e.g. SHCBA, NRO, Wajihuddin’s case, 18th Amendment, and
even Dr Arsalan’s case.
While everyone agrees that
‘independence of judiciary’ is instrumental to our democratic
dispensation, we must question whether this reason alone justifies it to be
the touchstone for all judicial dictates? Judicial ‘independence’ is not
simply a catchword; the temptation to use it as a battle-cry each time that
the troops need to be rallied, must be resisted. ‘Independence’ does not
simply mean being ‘anti-government’. It is much more wholesome. It
embodies the idea that lady justice wears a blindfold and decides each case
without passion or prejudice (be it in favour of the government, or against
the need for judicial ‘independence’ in every judgment does not establish
it per se. Especially when, in instances such as Dr Arsalan’s case, it
seems that lady justice is not just peeking from behind the blindfold, she
has dispensed with it altogether.
The writer is a lawyer
based in Lahore. He has a
Masters in Constitutional Law from Harvard Law School.
He can be reached at: firstname.lastname@example.org
the great divide
Vladimir Putin will not for now become the first Head of State from his
country to visit Pakistan.
His visit, scheduled for
early October has been postponed, along with the quadrilateral summit
featuring Afghanistan and Tajikistan alongside Pakistan and Russia that he
was to attend in Islamabad. But this does not mean Pakistan’s growing
warmth with Russia is not significant.
The country has, of course,
lost the great power it once wielded as the major republic making up the
defunct Union of Soviet Socialist Republics which disintegrated in 1991. But
given its geographical location, its status as an arms exporter and its past
rule in the region, Putin’s links to Islamabad still have immense
significance. This is all the more so as it comes at a time when relations
between Pakistan and the US are under immense strain, with the controversial
film released lately doing little to help complex matters that revolve
chiefly around the issue of militancy and Afghanistan.
As such, the hand Pakistan
has put out to Russia which has largely ignored the country through many long
decades of history — all through the long Cold War years, regarding it as a
US ally — is significant.
Pakistan and President
Zardari clearly want to signal to Washington that they have other options. It
is also true that the country desperately needs friends at a time when even
its closest ally, China, has sometimes taken on a somewhat chilly approach to
bilateral relations. Pakistan clearly does not want to become completely
isolated in the world and has begun to look in other directions. Its
proximity to the eastern parts of Russia and the other nations located in
that region mean that it may be sensible for it to seek out friends in this
Clearly, there is a lot to
be gained through co-operation between nations making up central and South
Asia. A Russian company, for instance, has already offered investment in a
proposed gas pipeline running from Turkmenistan to Afghanistan, Pakistan and
India. Other energy needs could also be met by accessing the vast resources
of the nations in this zone.
Russia, of course, has
other reasons for moving ahead with attempts to improve links with Pakistan,
the groundwork for which was laid when President Zardari visited Moscow in
May and then high ranking officials from that capital held further talks with
Kabul and Islamabad. Putin, who needs a plan to keep the Russian economy
stable and prevent further deterioration, is seeking new markets for arms.
Russia is the world’s
second larger exporter of weapons, holding 24 per cent of global markets
compared with 30 per cent by the US. There has been anxiety over this issue
lately in Moscow after India’s new chumminess with the US and
Washington’s overtures to New Delhi as an ally of strong standing. The
suggestions made during this process include the possible sale of arms to
India. Since India has for the past many decades mainly procured from Russia,
concern in that country that there may be a need to secure other buyers is
high. Pakistan is clearly being seen as one nation which may wish to buy
But there are many other
factors going beyond this. Under Putin, Russia has been keen to re assert
itself as a global superpower, whether in terms of political influence or on
the sporting field. It is, therefore, eager under its aggressive president to
secure influence and at least keep open the possibility of adding Pakistan to
nations it has ties with — possibly even tearing it away a little from its
closely hemmed relationship with the US.
A total interchange in
roles with India switching to the US camp and Pakistan to the Russia’s is,
of course, completely unrealistic. This will simply not happen. Russia and
India have ties welded by history and are comfortable in their embrace with
each other. Even if this bear hug is loosened, it is unlikely to break apart.
Similarly, Pakistan cannot really do without the US given that Russia is not
in a position to offer it the same level of aid and defense support which it
needs to keep it propped up. Things then are not set to change dramatically;
but the direction from which the breeze blows could alter just a little.
This change could indeed
prove to be immensely significant. Things in Afghanistan are, after all, set
to change in the very near future. Both Pakistan and Russia look at that
country as a familiar playing field. Their joint power could decide a great
deal, especially if India also agrees to line up as a partner, pushing the
country towards some kind of sanity. Afghanistan, of course, ties in with the
question of militancy. Russia is keen to gain Pakistan’s help in
controlling its own Muslim insurgents and has also remained worried around
the security of Pakistan’s nuclear weapons. It clearly believes better
bilateral ties could help sort out some of these problems or at least make
them shrink in size.
There are other areas where
Russia could help. According to reports, plans for coordination include
expanding and resurrecting the Pakistan Steel Mills, set up by the Russians
in the 1970s when ties had thawed enough to let layers of ice melt. Since
then, the massive Mills have fallen into disarray. We could certainly use
some help in lifting them up again and also in other Russian investment in a
country that desperately needs support from the outside world to recover from
its plethora of problems.
Perhaps Russia can offer
this help at a time when more and more nations around the world appear ready
to leave Pakistan stewing in the unhealthy broth it has cooked up for itself,
adding new ingredients as the years have passed.
The day meant to
show reverence for the prophet was to be remembered for senseless
bloodletting, arson and looting, but by midday Friday, September 21,
Islamabad streets betrayed neither love nor hatred towards anything or
It was a pleasant sunny day
and deserted roads gave the city the atmosphere of Eid. Islamabad is
naturally handsome and pleasing to the senses … especially when everyone
leaves it for wherever they call home. Left with a few soul mates, the
usually quiet and shy Margalla spruces up its foliage, fills its crevices
with the kohl of shadows, and rearranges its curves to reflect the sunlight
back as a smile — an inviting and seductive smile that is hard to resist.
With the hurried
announcement of Friday as a national holiday, impromptu plans were made for
the long weekend, some going away after work on Thursday to be with their
families, others bringing their families to the foothills for onward plans to
visit Murree, Abbottabad and Nathiagali.
Friday morning saw rioters
take control of the entry points to the city, attacking motorists they came
across, but luckily Daman-e-Koh route was still open and the panoramic Pir
Sohava offered the perfect alternative to visitors wishing to get away from
it all. Inside the city, it was calm and peaceful — too calm and eerily
peaceful. Traders, private businesses, service providers, self-employed
tradesmen, even bakeries, restaurants, pharmacies and diagnostic laboratories
… everything was closed for business. Everyone seemed eager to not only
keep their shutters down but also to announce it loud and clear, and denounce
the offending film through banners and loud speakers — more out of fear of
vandalism than anything else. Whether or not children will get milk and
patients their medicines and treatment was a non-issue for all concerned.
There is still time before
Juma prayer but Aabpara is already buzzing with undirected energy. Scores of
men in shalwar qamees and prayer cap are gathering here to watch the show
from the start, or to play a part in it, and hundreds of policemen are
fortifying their positions around the square in anticipation of trouble. It
is promise of live righteous action that is bringing excited men and boys out
on the roads; prayer is a mere formality today.
Across 7th Avenue expansive
green belts between sectors are teeming with the more sporty men and boys,
playing cricket freestyle — several groups sharing the space with their own
batters and bowlers. Proper cricket grounds have club teams playing
competitive games in all-white kit. A few friends and family members sit
around enjoying fair weather, if not the game. This is what Islamabad looks
and feels like on any holiday.
I drive around town,
sensing fear in the air, watching the sporting fun on the ground, and trying
to make sense of the two. There’s a reality check for me in G 11 where a
thoroughfare is blocked for traffic by burning and smoking tyres, before I
run into hooligans head-on, in F 11 Markaz, one of the trendiest high streets
A group of more than 50
boys waving wooden clubs and iron rods, occupies the empty road in front of
me, marching in my direction. I stop and look around: there’s a little boy
running towards me from the left with a little stick in hand and a teenager,
not part of the mob but seemingly one of them, approaching me from the right.
There’s no other vehicle in sight. I fix the little boy with a stern grown
up’s stare that freezes him mid-action, stick raised in the air, and engage
the young man through my driving side window. ‘What’s happening here?’
He seems amused by my question. ‘They have been asked (by the local
mosque’s prayer leader, Pervez Hoodbhoy tells us the next day) to attack
and burn every vehicle seen on the road. ‘Why are they …’ the young man
cuts me short with an urgent rolling of the eyes towards the advancing mob:
‘No time for questions uncle. You want to save your car and yourself, you
better go, fast’.
I saw both of them a couple
of days later, at the same intersection. The little boy was begging in the
garb of selling knick knacks and the older one was working on a car at one of
the several auto repair shops that line the road. We did not exchange a
familiar look. Like everyone else, we went about our business pretending as
if Friday the 21st never happened.
Swat is almost back
to normalcy, but the Pakistan Army isn’t ready yet to lower its guard.
Troops level are down to 30 per cent as two divisions out of the three
deployed by the army in 2009 to conduct the Operation Rah-e-Rast against the
Tehrik-i-Taliban Pakistan (TTP) militants have been pulled out. The remaining
one army division, along with Frontier Corps troops, is deployed in all of
Malakand division, which includes Swat and six other districts — Chitral,
Upper Dir, Lower Dir, Malakand Agency, Buner and Shangla.
Though internal threat is
still there in the form of the occasional suicide bombings, targeted killings
and blasts caused by improvised explosive devices (IEDs), the focus has
largely shifted to the long and porous Pak-Afghan border due to the
cross-border attacks being carried out by the Afghanistan-based Pakistani
Taliban in Chitral, Upper Dir and Lower Dir districts. The Maulana Fazlullah-led
TTP militants from Swat and rest of Malakand division moved across the Durand
Line after suffering defeat at the hands of Pakistan’s security forces and
found refuge and support in Afghanistan’s Kunar and Nuristan provinces.
In a recent interview with
The News on Sunday, the operation commander in Swat, Major General Ghulam
Qamar, provided figures to show the significant level of threat emanating
from across the border and highlight the response of Pakistan’s security
and law-enforcement forces to deal with the situation. Below are his answers
to questions put to him:
The News on Sunday: There
have been a number of cross-border attacks in the area of your command in
2012 and in some cases the militants managed to explode bombs and carry out
targetted killings. Can you update us about these attacks?
Maj Gen Ghulam Qamar:
During the last nine months since January 2012, there have been 17 major
cross-border attacks, mostly in Lower Dir and Upper Dir and some in Chitral
districts. Besides, there were 118 fire raids when the terrorists fired
across the border into Pakistani territory. There were also two suicide
bombings and two incidents of targetted killings in Lower Dir, killing
civilians. There was one sniping incident when the police at a checkpoint on
a bridge in Munda were attacked and two cops were shot dead. Fifty-two
personnel of law-enforcement agencies and soldiers were killed. We managed to
kill 261 terrorists.
In two intelligence-based
actions, we busted two gangs of militants in separate raids and arrested 104
men in April and 21 in September. In 2011, there were four physical
cross-border attacks by the militants based in Afghanistan and 22 fire raids.
There were also two each suicide bombings, three IEDs attacks and four
targetted killing incidents. We suffered 71 casualties including six army
soldiers, 34 FC men, 31 police and Levies personnel and 46 civilians. The
number of terrorists killed was 25.
TNS: Lashkars, peace
committees and village defence organizations were constituted to assist the
military and the administration in defending villages and keeping the
militants at bay. How much are these bodies active now that the security
situation in Swat and other districts of Malakand division has improved?
GQ: We call them village
defence committees and none has been disbanded. These were set up in every
village in Swat. The committees meet once a month and army officers remain in
touch with the members. The committees have been effective in maintaining
peace and pre-empting militants’ plans to launch attacks.
TNS: The security
transition from the military to the civil administration has been slow. In
what stage are your plans to withdraw troops and hand over security to the
GQ: The army has gradually
been reducing its presence in the area. We earlier had joint checkpoints with
the police. In Kalam and Bahrain, the civil authorities have taken over and
there are no soldiers at the roadside checkpoints. There is token presence of
the soldiers concentrated at one place in Kalam. The army is manning only one
checkpoint in Buner district and has a token presence in Shangla. We had
planned to hand over security to the civil administration in Malakand Agency
by the end of this month, but there is no police there and the capacity of
the Levies force operating in Malakand to handle law and order is
questionable. We have asked the provincial government to post police officers
in Malakand Agency and undertake development work, but it would take time as
the law has to be changed through an act of parliament.
Regarding rest of Swat
district, the plan is to hand over security to the civil administration by
the middle of next year and for this purpose the training of the police by
the army is continuing.
TNS: The army was earlier
directly undertaking reconstruction and development projects in Swat. How
much is the army’s involvement in development activities now?
GQ: The army has completed
projects in the education, health and communication sectors and used all the
funds at its disposal. We repaired the Fatehpur-Kalam and the Kalam-Mahodhand
roads and bridges damaged by the floods and built schools. The army now has a
supervisory role and all the development projects are being run by the
Commissioner of Malakand division. Saudi Arabia and the United Arab Emirates
are funding most of the reconstruction and development projects.
TNS: The plan to establish
an army cantonment in Swat has slowed down. Has the plan been altered and
what are the hurdles impeding the establishment of the cantonment in Swat?
GQ: When the Army chief
visited Swat sometime back, the people demanded permanent military presence
in the district. The chief minister of Khyber Pakhtunkhwa promised to provide
land for building the cantonment in Swat, but the provincial government later
said the federal government should provide funds to buy land for the purpose
as this was a federal project. The case has now been sent by the Ministry of
Defence to the Prime Minister Secretariat. When the funds are made available
the acquisition of land for the Swat cantonment would begin. The army already
has at its disposal funds for building the infrastructure of the cantonment.
We would build some infrastructure in Malakand town where an army unit was
based since long at the fort. The army also has presence in Khwazakhela and
the third place where the cantonment would be built is Kanju near the
TNS: Controversy has been
generated owing to the rising number of militants’ deaths in the custody of
the security forces in Swat. Official sources cite heart attack as the reason
for all these deaths. How do you explain so many deaths, reportedly 132
todate, and why postmortem isn’t done as demanded by the Peshawar High
Court to determine the cause of the deaths?
GQ: These figures are
exaggerated and alarming. I don’t know how this figure of 132 deaths was
put together. The record of the prisoners and deaths is with the police as
they run the internment centres set up for the militants in September 2011
under the control of the KP government. The army is responsible for providing
security only at these centres. The provincial government hasn’t posted
doctors yet to treat the militants at the internment centres. Recently, it
constituted a medical board for the purpose, but its members have yet to come
The army has been treating
the militants and using its funds to buy them medicines. The army’s field
hospital has limited capacity and it cannot perform advanced medical tests.
Regarding postmortem of militants dying in custody, the police officials
would be able to answer this question. However, there are no postmortem
facilities in the hospitals in Swat. Also, due to religious and cultural
reasons, the families of the deceased militants are averse to performing
postmortems when the bodies are handed over to them by the police.
TNS: Do you think the fresh
deployment of troops on the Pak-Afghan border in Chitral, Upper Dir and Lower
Dir is enough to cope with the cross-border attacks by the militants?
GQ: We believe the
deployment of troops is enough as it has delivered.
Kashif, a pupil of
an illegally-built seminary in Islamabad, made no effort to conceal his
ignorance about the anti-Islam movie that triggered destructive protests
across the globe. What he knew was that some “disciple of Satan” had once
again insulted the Holy Prophet (PBUH).
“And that was enough,”
he said, while marching towards Islamabad’s Diplomatic Enclave, along with
his companions. They all believed the American government had hatched yet
another conspiracy against the ummah.
It was September 21,
Youm-e-Ishq-e-Rasool, a public holiday announced by the government to
channelise public anger against the controversial movie. A day earlier,
university, college and seminary students had already wrought havoc near the
Living in Kohistan as a
young boy, Kashif had been sufficiently exposed to the concept of jihad and
idealised the legendary characters in Islamic history. He thought mere words
were not enough. He was ready to lay down his life in the name of religion.
But on that day, Kashif and
his companions were eager to reach the American Embassy than listen to the
sermons of their elders. When they joined their fellow protestors near the
Serena Hotel, there was no going back. For hours, they played hide and seek
with the police before pushing a huge container aside to open the road and
clear the way ahead. Army troops were guarding the Enclave from inside so any
attempt at trespassing could be a risky business.
A couple of hundred yards
from the police cordon, the operatives of banned outfits, like Sipah-e-Sahaba
Pakistan (SSP), now Ahle Sunnat Wal Jamaat, were congregating to listen to
their firebrand leaders. The second-tier leaders, responsible for cooling the
emotions of the crowd, were urging them to maintain discipline.
But even hardcore sectarian
or militant outfits, with extremely strong hierarchal order, failed to
control their charged workers.
Their mission was to hold a
demo outside the American Embassy. But they failed. They dispersed after
damaging public and private property. Islamabad police and army fought well,
as if defending a fort from invading armies.
The protestors heading from
Rawalpindi to Islamabad did not face obstacles on the way. Small rallies
joined bigger ones at Aabpara Chowk.
IG Islamabad Bani Amin Khan
claimed the strategy of holding back the protestors outside the Enclave was
based on realistic analysis of the situation. “We don’t have enough force
to hold them back at the main entrance of Islamabad. We could not afford to
get engaged in pitched battles in every nook and corner of the city.”
The strategy adopted, said
the IG, was successful — “At least, it kept the marchers at bay, without
letting them reach their target.” Slightly more than 1700 police personnel
were deployed outside the Enclave.
On September 21, apparently
a large number of protestors, including operatives of the banned outfits,
emerged from the infamous Lal Masjid. But Maulana Amir, deputy imam of Lal
Masjid, said the mosque administration never incited public to resort to
violence. He deplored some people were using Lal Masjid to further their own
Islamabad remains in media
glare for obvious reasons. Anything happening on the streets of the federal
capital makes headlines. The small time religious outfits love to demonstrate
their anger or frustration before dozens of television cameras here.
The presence of proscribed
outfits in the rallies offered no surprise to the observers. For instance,
the SPP was banned in January 2002 but survived under some other
nomenclature. The SSP leadership have always yearned for occasions where it
could play with public sympathy and sentiments — hence, the ‘Innocence of
Muslims” provided a perfect opportunity.
The proscribed outfits
could not work legally after the government of Pakistan took U-turn on its
pro-Taliban policy. However, the process of banning contained several lacunae
which allowed the operatives, who escaped the noose of law, to work under
different names but under the same ideology. Every major proscribed outfit
maintains its local chapters in Rawalpindi and Islamabad, therefore, they
were never short of supply of manpower during the demonstrations.
“Civil society does not
agree with the kind of protests we saw on Sept 21. We believe the response
has to be made in strategic manner instead of resorting to violence against
innocent people,” commented human rights activist Dr Farzana Bari.
With no apparent shift in
the thought pattern of society in foreseeable future, the nature of protests
would be more or less the same depending on the severity and sensitivity of
There are blessings
that flow from not being responsible for important matters. One such matter
is that of governing in the Islamic Republic of Pakistan.
Many have taken a
stand that what happened on Friday the 21st of September (Ishq-e-Rasool Day)
represents a capitulation on the part of the PPP government. It was stupid,
goes the argument, to cave in to the hysteria of the mobs. What is a casualty
in such discourse is an appreciation of how the “polis” works in
The decision to declare a
holiday should not be exaggerated. It strains logic to suggest that the
declaration of a “Day of Love” is somehow responsible for the violence
that ensued or has somehow increased the power of those on the Far Right. If
there are issues with the role of religion and its power in the Pakistani
state then this did not dramatically change on Friday the 21st of September.
In the time between sunsets
on Thursday the 20th and Friday the 21st only one thing changed about the
power of violent mobs claiming to be lovers of religion: another example of
their power to wreak violence was added — the argument regarding their
power didn’t change and neither did its force. Even this example, confused
with an argument, has nothing to do with a holiday. This distinction between
focusing on the argument instead of an example is crucial and I suggest that
a failure to grasp this characterized much of the discourse surrounding this
By declaring a Day of Love,
the PPP government did not surrender — it tried to assuage passions. Now
you can throw your head back and laugh but the government had an important
choice to make. It knew that regardless of a holiday, protests would ensue.
Violence would ensue. Stopping these protests was out of the question so the
focus had to be controlling violence. When someone raises the slogan of Islam
in a country like ours, clamping down on them is hardly ever the first
option. The message? Let’s celebrate a day of solidarity. A gamble? Yes. Naïve
or stupid? Hardly so.
This I would suggest was
important at two levels. First, the government wanted to send a message to
the international community that speech offensive to Muslim sentiments needs
to be taken as a serious issue. This contention of mine is supported by the
fact that President Zardari raised the issue in his speech at the UN. One may
or may not agree with that message but the logic behind it is at least
comprehensible. The other reason was to control things. Governments, unlike
journalists, have to worry about such things.
This wasn’t about votes.
This wasn’t about re-election. Anyone with a rudimentary understanding of
the PPP’s vote bank knows that it doesn’t need to beg the mullahs. What
the PPP did have an interest in was giving itself the best shot at avoiding
havoc — and havoc was coming. When the Danish cartoons controversy
happened, there was no holiday declared. Did it stop the mobs? Was the
destruction any less? So why not join in the protest? I only said protest —
not the violence.
The federal government did
not tell schools or businesses to close down but schools and traders
throughout the country announced their decision to remain closed because they
— unlike many PPP critics — understood that things, regardless of what
the government does, may well get out of hand. The foreign journos who think
PPP was being naïve should try running an Islamic State — you can’t
pretend to look the other way while mobs promise violence. You try and
The alternative, not
declaring a holiday, wouldn’t have changed things. The violence would still
have occurred. Fine, the decision didn’t really work to prevent mobsters in
the big cities. But also consider this: the fact that violence occurred
primarily in big cities shows that the mobs were going to use violence to
make a statement anyway — they wanted the world’s cameras to catch them.
And they would have done so regardless of a holiday. You might say “and
what of the church that was burned in Mardan?” To which I say, since when
did folks in this country need a holiday to burn churches? Get real.
The appeasement that many
are complaining of didn’t happen with a holiday. It has happened through
consistent state practice for no one government or a holiday is responsible.
The targeting of the Shia community should remind us of the limits of
focusing on official acts of alleged appeasement. There is more mess under
the surface than on the surface so we are better off worrying about that. We
are better off focusing on the argument rather than the example.
Most failings of law and
order should be seen in light of the fact that policing is a provincial
subject. But I can’t really blame the provincial governments either. They
did their best to stop the violence. Policemen, as ever, were incredibly
brave. Things were going to get out of hand — it was only a question of
controlling violence, not stopping it. Those who disagree should run for
office and try making these decisions. They might be surprised at what is in
And here is another thought
about capitulation: no mullah will think after Friday the 21st that the PPP
isn’t to blame or that it did enough. Any talk of surrender is meaningless
to the mullah as well as any rational debate. The mullah doesn’t need a
holiday in this country to make his power known. The protests on The Mall
aren’t going to rely on a holiday. They never have. What the PPP government
tried to rely on was winning the goodwill of the population at large — not
the votes of the mobs. By focusing on the mobs and by blaming the holiday you
are giving an irrelevance far too much credit.
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 email@example.com or on Twitter @wordoflaw.