The Pakistani rabid media is guilty of something much more serious than bad journalism. Their misreporting, their distortions, their unattributed, unsourced tirades about governmental instability are infectious, and could very well become self-fulfilling prophesies. As the nihilistic narrative goes viral, western media picks up the theme and starts to run with it. When Pakistan’s FOX cable rampages morph into New York Times and Washington Post headlines, not only is the government of Pakistan destabilized, but the future of democracy in the country becomes problematic and with it any chance for the Pakistani to break into a new socio-economic environment where there is hope for their children’s future. The anti-government blood-sport may be good fun for the chattering classes of the Punjabi elite, but for Pakistan’s position in the community of nations, it is deadly serious. And for victims of this summer’s monsoons, this distraction is nothing short of tragic.

Pakistan has many problems, most build up after decades of governmental inaction, economic mismanagement, military coups and terrorist insurgencies. Any government now in power would be under enormous stress from the complexities and the enormities of the current multifaceted challenges. But to use this as an excuse to destroy Pakistani democracy, to destabilize the democratically elected government and to functionally empower terrorists, is shameful.

Maybe it’s at last time for patriotism to replace opportunism for the Pakistani media, for the Pakistani military, for the Pakistani political opposition, and for the chattering Establishment class that thrived under dictatorship. The infection has spread from the cables, to the salons and has made its way across the Ocean to the White House, the State Department and the Pentagon. It threatens not only bilateral relations with the United States. It fundamentally threatens Pakistan’s existence.

Watching Pakistani television is like watching fifty Fox News television stations, but much less restrained, more like staged professional wrestling than objective journalism. In the “anything goes”, government-trashing, US-baiting, conspiracy-obsessed barrage of ignorant talking heads that dominate the Pakistani media, one senses that the Establishment, through its new rabid cable mouthpieces, is once again determined to undermine the still fragile democratic infrastructure of the country, destroy the domestic and international credibility of the elected government, and all but forfeit Pakistani’s place in the community of nations to a pariah state.

When you turn on Pakistani television, or hear the edicts of the politicized Supreme Court, or the anti-government, anti-American rantings of the right-wing political opposition, one hears nothing of relevance to the lives of average Pakistanis, and certainly nothing that will address the crisis in the lives of the flood refugees. There is no talk of economic development or international investment. There is never a mention of opening up world markets to Pakistani imports. One never hears a word about increasing Pakistani agricultural and dairy production and getting protein into the stomachs of our children in public schools.

No, to the pro-military rule Establishment and to those they fund on national television, it would seem that the main problem facing Pakistan is not rebuilding its destroyed infrastructure and finding housing and employment for eight million homeless people, but rather reopening stale twenty-year-old charges of corruption against people now in government who have been elected with the fresh mandate of a newly democratized electorate. These old charges were brought by forces that used this issue for decades to thwart the democratic process.

The fact is that there have not been any new corruption charges brought against this government in its two-and-half years in power, none directed against the Prime Minister or the President. Yet personal hatred of the ruling Pakistan Peoples Party and its chairman, President Asif Ali Zardari, removes from the public discourse any sense of cooperation and unity. The Establishment is too busy trying to destroy the government than to help it build a new Pakistan. As the rest of the world acknowledges that the reason that only 1,800 Pakistanis were killed in the greatest natural calamity in its history was the quick attention and mobilization of the Pakistani government to evacuate huge masses of people before the flood waters descended (a sharp contrast to the refusal of New Orleans officials to evacuate the city and thus cost thousands of unnecessary American casualties five years ago), the Establishment assumes as its highest priority is ridiculing Zardari for traveling internationally to mobilize world government action and public opinion to assist Pakistan in its moment of crisis.

Maybe Zardari’s trip to beseech French President Sarkozy and British Prime Minister David Cameron was not great politics, but in terms of its results it certainly was good policy. But the Pakistani Establishment will not give the devil his due, and continues its rampage, in the midst of this horrific human tragedy, to undermine and sabotage the government.

It is a sad spectacle, but predictable in terms of Pakistan’s sixty year history. One need not wonder why Pakistan today is increasingly thought of as anarchistic. One need only watch the self-destruction and national abuse blasting 24 hours a day from the Court House to the cable station, to understand that patriotism seems to be a word that the Pakistani Establishment just can’t spell.

Quite a few groups and individuals wish to resurrect what they describe as Jinnah’s Pakistan. The argument in support of the effort is that decades of disregard for the Quaid-i-Azam’s vision of Pakistan has landed the country into one crisis after another and its future cannot be guaranteed without a return to its foundational premises.

Although the Quaid’s views on Pakistan’s ideal (he usually avoided the expression ‘ideology’) have not escaped controversy, there is substantial agreement among historians and analysts that he stood for a constitution framed by none else than the representatives of the people, a system of government that he described as people’s democracy, and full citizenship rights for the minorities.

These conclusions are mostly derived from the Quaid’s Aug 11, 1947 address to the Constituent Assembly after he had been elected its president. While conscious and democratically-minded citizens have always held that in this speech the Quaid defined the essential and unalterable features of Pakistan’s polity, a few elements have tried to minimise its importance.

They have argued that the Quaid’s Aug 11 speech was not in harmony with the ideas he had consistently advanced. The Quaid-i-Azam had himself pointed out that he could not make “any well-considered pronouncement at this stage” and had said “a few things as they occur to me”. Through these observations he defined the priority tasks for the government: maintenance of law and order, “so that the life, property and religious beliefs of its subjects are fully protected by the state”; elimination of the poison of bribery and corruption; eradication of black-marketing; and suppression of the evil of nepotism and jobbery.

These views had not been expressed by the Quaid for the first time. They had inspired his frequent attacks on the colonial administration in the course of his long and illustrious career as a parliamentarian. What followed his observations on governance was new because he was speaking about the state of Pakistan that was to come into being three days later. And what he said was this:

“Now if we want to make this great state of Pakistan happy and prosperous we should wholly and solely concentrate on the well-being of the people, and especially of the masses and the poor … If you change your past and work together in a spirit that every one of you, no matter to what community he belongs, no matter what relations he had with you in the past, no matter what is his colour, caste or creed, is first, second and last a citizen of this state with equal rights, privileges and obligations, there will be no end to the progress you will make.”

These words and his reference to the Muslims’ ceasing to be Muslims and the Hindus’ ceasing to be Hindus in the same speech, constituted the Quaid’s solution to the issue of religious minorities that had undermined the struggle for the subcontinent’s freedom for many decades.

Although communal differences had been accentuated during the 1857 uprising, the minority question acquired a new shape when Muslim leaders, Sir Syed in particular, gave vent to their fears of rule by elected representatives. For several decades they sought safeguards to which they were entitled as a minority. The failure of these attempts led the Muslim League to abandon the status of a minority and claim the rank of nationhood.

However, the formulation of the demand for a new nation-state called Pakistan did not end the minority issue. The authors of the Lahore Resolution of 1940 had themselves realised this when, after asking for the creation of independent states in Muslim-majority areas, they said:

“That adequate, effective and mandatory safeguards should be specifically provided in the constitution for minorities in these units (provinces) and in the regions (i.e. the Muslim zones) for the protection of their religious, cultural, economic, political, administrative and other rights and interests in consultation with them; and in other parts of India where the Musalmans are in a minority, adequate, effective and mandatory safeguards shall be specifically provided in the constitution for them and other minorities, for the protection of their religious, cultural, economic, political, administrative and other rights and interests in consultation with them.”Soon after the Lahore Resolution was adopted questions about the fate of non-Muslims in the Muslim-majority provinces (zones) began to be raised. A group of Sikh representatives met the Quaid, and what did he tell them? Besides assuring the Sikhs of all the protection a religious minority was entitled to in a civilised state he offered them the status of an autonomous region within Punjab and told them that they would be better off in Pakistan than in India.

Those who argue that the Quaid’s defence of the non-Muslims’ right to equal status with Muslims in his Aug 11 speech was not a well-considered formulation may read the account of his press conference in Delhi a month earlier.
Asked to make a brief statement on the problem of minorities as Pakistan’s governor-general-designate, he said: “I shall not depart from what I have said repeatedly with regard to the minorities. Every time I spoke about the minorities, I meant what I said and what I said I meant. The minorities, to whichever community they may belong, will be safeguarded. Their religion or their faith or belief will be protected in every way possible. Their life and property will be secure.

“There will be no interference of any kind with their freedom of worship. They will have their protection with regard to their religion, faith, their life, their property and their culture. They will be in all respects treated as citizens of Pakistan without any distinction of caste, colour, religion or creed. They will have all their rights and privileges and also the obligations of citizenship. Therefore, the minorities have their responsibilities also and they will play their part in the affairs of the state. As long as the minorities are loyal to the state and owe true allegiance to it and as long as I have any power, they need have no apprehension of any kind.”

When pressed further on specific issues, such as separate electorates, he said: “I cannot go into these details. The actual provisions with regard to protection and safeguards can only be discussed in the two constituent assemblies in which the minorities are represented.”

The Quaid was asked to comment on the recent statements and the speeches by certain Congress leaders to the effect that if the Hindus in Pakistan are treated badly, they will treat Muslims in Hindustan worse. The answer was:

“I hope they will get over this madness and follow the line I am suggesting. It is no use picking up the statements of this man here or that man there. You must remember that in every society there are crooks, cranks and what I call mad people in every part of the world, and this is hardly the place where we can say, ‘what about this man’s statement and what about that man’s statement’.”

It was at this press conference that the Quaid-i-Azam was asked: “Will Pakistan be a secular or a theocratic state?” His reply was: “You are asking me a question that is absurd. I do not know what a theocratic state means.”

A correspondent suggested that a theocratic state meant a state where only people of a particular religion, for example Muslims, could be full citizens and non-Muslim would not be full citizens.

The Quaid said: “Then it seems to me that what I have already stated is like throwing water on a duck’s back. For goodness sake, get out of your head the nonsense that is being talked about. What this theocratic state means I do not understand.”

Another correspondent suggested that the questioner meant a state run by maulanas. The Quaid replied: “What about the government run by pandits in Hindustan?” When you talk of democracy I am afraid you have not studied Islam. We learnt democracy 13 centuries ago.”

It should not be difficult for any independent observer to conclude that even before Aug 11, 1947 the founder of Pakistan had a clear thesis on the rights of the minorities. The core elements of this thesis were:

— The Lahore Resolution called for mandatory safeguards drawn up in consultation with them.

— In July 1947 the Quaid made a pledge to the effect that the Constituent Assembly, in which the minorities are represented, will lay down safeguards in the constitution.

— Democracy is not incompatible with Islam, hence belief cannot be invoked to curtail the rights of the minorities.

In his Aug 11 speech the Quaid-i-Azam took a radical step beyond unexplained safeguards and called for excluding religion from the affairs of the state and offered the non-Muslim citizens complete equality with their Muslim compatriots. This may well have been the result of his reflection on what had happened between July 13 and Aug 11, 1947, especially the madness of communal slaughter and the exchange of population between the Indian and Pakistani Punjabs, a course he had ruled out in July.

The greatest irony about this address of historic importance is that it is generally believed to have addressed only the minorities’ rights. This is only partly true. The Quaid’s words were directed at all citizens of Pakistan; the progress of the entire population depended on burying the past (communal politics). What he clearly meant was that discrimination against the minorities would impede Pakistan’s progress. Thus, in Jinnah’s Pakistan the rights and interests of the minorities will be protected by the constitution and the law not only as something due to them but also as an insurance of the state’s integrity.

Tired due to the prolonged special transmission on flood relief, I was trying to unwind in my office when a senior colleague came dancing to my chamber. “What is the good news?” I asked him thinking of some big accomplishment in relief efforts. “Someone has thrown a shoe at Zardari!” he exclaimed in joy.

I was simply shocked. Here was a career journalist, otherwise supposed to be neutral, and tasked with overall responsibility of the office, absolutely radiant with joy, over an incident of national humiliation if not petty worth. I immediately switched my television on to learn more. The media was ecstatic. Most of the channels had forgotten the floods and relief efforts and were obsessed with the apocryphal piece of gossip which lacked even a shred of credible evidence. I surmised that the Islamic republic is back at what it does best: scapegoating.

It is impossible for me to justify the foreign visit of President Zardari. I have little doubt that the time spent abroad could have been put to better use for the sake of morale boosting.  But that’s that. Here is a state imploding in front of the burden of its innate contradictions, natural calamities and the sheer opportunism of the entire nation, and we are busy blaming one man. Again, I cannot digest the official claim that the president was oblivious to the scale and nature of the calamity. A head of state cannot hide behind the excuse of ignorance. If he didn’t know at first, he could have obtained information and cut short the visit to rush back to the country. Yet, I cannot deny either that we have this knack of undermining the scope of a tragedy or disaster, sidestepping the main issues and blaming one person for everything.

Tell me what could the president have done? Even if he could ignore the fact that he was nothing but a titular head of the state after the eighteenth amendment? He could have gone to visit some flood affected areas. There our complaint would have been that the president was busy in photo-ops. And due to the mere photo ops the entire district management, otherwise entrusted with overseeing the relief effort, was busy in receiving and entertaining his person. So had he not gone abroad, our displeasure would have still been unaffected.
Frankly there are two major reasons why all this anger is pouring out against President Zardari. One smacks of good ol’ realpolitik, the other of obscurantism. The first reason is that our defense establishment was not too chuffed about our president’s visit to the UK so soon after David Cameron’s statement in India. The very statement in essence is connected to the second reason. The fact remains that our nation, courtesy the very establishment and the mainstream (read right wing urdu media), is highly obscurantist. While the state apparatus has been forced to fight the fundamentalists (emphasis on mental!), our nation (primarily our Punjabi brothers essentially because they can afford such kind of entertainment) think that it is an unjust war and that the Taliban have quite the right idea. Since the war continues, first Musharraf was evil and now President Zardari is. Most of the people I have interacted with think that the Almighty is punishing us through the floods for:

(1) fighting and killing the virtuous (read terrorists),

(2) the presence of the current rulers.

My question is simple. If the Almighty is so angry with the rulers why doesn’t he punish them directly rather than taking innocent lives? Or else the truth is that religion has nothing to do with our current state of affairs and incompetence and ineptness of state has more to do with everything.

Had we not been so obscurantist we could have tolerated any form of government and tolerated enough to let the democratic institution building process take root. But no our zealotry will ensure that this government will go and so will the next and the next. And yet we will never find solutions to our plight.

The real stakeholders were the democratically elected chief executives of the federation and the federating units and the army chief being the uncrowned king of the country. But you will never hear any intellectual or media person complaining about the army chief’s visit to the UAE in this hour of national catastrophe and devastation.

The fact of the matter is that instead of assuming the responsibilities of a nation state, we as a nation want to be a pan Islamic global movement which exports terrorism as a cause. Had our focus been nation and institution building believe me our troubles would have been over already. But we are more focused on supporting the Taliban than actually building bridges and dams (is Kalabagh the only dam that can be built?).

This streak of obscurantism translates in our security doctrine as well and somehow we fail to put an end to the blackmail of the terrorists. To me, anyone who believes that he has a right to coerce me into doing anything represents the Taliban. Till the time we do not finish such people, statements will come from foreign leaders. If you want to know our exact moral fiber, you should go to bazaar in the flood affected areas or even during Ramazan check out the prices being charged staple food. Only then will you understand our double standards and moral decay.

And till the time these issues are resolved, removing Zardari, Gilani, Shahbaz Sharif or any other leader will resolve nothing.  A mere incident of shoe throwing can never change our destiny.

Relations between the judiciary and the executive are deteriorating, if a certain section of the media and the political class is to be believed. The first alleged source of tension: the government is not acting on the Supreme Court’s directives in the NRO judgment.

But is the government really in violation of the NRO judgment already? Does the Supreme Court have to first decide what it is going to do with the review petition filed against the NRO judgment before the government is required to act? These are technical questions of law, whereas thus far the criticism directed at the government appears to be anything but technical. We must await clarification about the true legal position before any comment on the government’s obligations is in order.

The second source of tension is the apparent conflict over judicial appointments — an age-old tussle between the executive and the judiciary, but with a twist this time. The fate of two judges in particular appears to lie at the centre of the ‘dispute’: Justice Khalil Ramday (retd) of the Supreme Court and Justice Khwaja Sharif, the chief justice of the Lahore High Court. Justice Ramday retired earlier this month after reaching the constitutional age limit, but then was recommended as an ad hoc judge to the Supreme Court by Chief Justice Iftikhar Chaudhry. However, Justice Ramday’s retirement created an opening for a permanent judge in the Supreme Court and the government is believed to want to fill that position first — and therefore has held back on appointing Justice Ramday as an ad hoc judge.

The picture of confusion is completed by Chief Justice Khwaja Sharif of the Lahore High Court. Apparently, according to the rules of promotion determined in the 1990s, Chief Justice Sharif should be elevated to the Supreme Court to fill the position of a permanent judge vacated by Justice Ramday. But neither Chief Justice Sharif of the LHC nor Chief Justice Iftikhar Chaudhry of the SC appears interested in having the LHC chief justice go to the Supreme Court.

Why would a judge resist promotion to the Supreme Court? There can be many reasons, not least that the seniority rules could adversely impact the LHC CJ’s chances of eventually becoming chief justice of the Supreme Court. Of course, politicians are prone to seeing all sorts of conspiracies and those reasons could extend to judges being perceived as belonging to ‘other’, unfriendly camps. There is, though, an irony in the present appointment ‘tussle’: historically, the judiciary has sought strict rules to reduce the executive’s discretion in judicial appointments; this time, it is the judiciary that appears to want to deviate from non-discretionary rules.

When General Ashfaq Parvez Kayani was elevated to the most powerful job in Pakistan, many hoped that he would efface the shame of eight years of military rule under his predecessor, Pervez Musharraf.

Keen to rebuild the army’s much-damaged domestic image, Gen Kayani pulled all serving officers out of civilian institutions within weeks. The 2008 general elections also slipped by with no obvious military interference, a veritable rarity.

The army chief has also won plaudits for the military’s impressive displays of resolve against Taliban militants, first in Swat and now in South Waziristan. Under Gen Musharraf, earlier offensives lacked public support and ended in ruinous peace deals.

But since the return to civilian rule, in the unlikely shape of President Asif Ali Zardari, observers note that the military has jealously guarded what it sees as its own traditional prerogatives.

On paper, Mr Zardari is the “supreme commander of the armed forces” and his prime minister, Yousaf Raza Gilani oversees the Inter-Services Intelligence (ISI) agency. But these are, as one senior western diplomat puts it, “constitutional fictions”.

In 2008, an attempt to bring the ISI under civilian control backfired within 24 hours. After the Mumbai massacre, Mr Gilani’s decision to dispatch its chief spy to Delhi was thwarted. More recently, Mr Zardari was forced to reinstate Chief Justice Iftikhar Chaudhry after discrete pressure from the army.

On the foreign policy front, the army has regarded Mr Zardari’s proximity to Washington with scarcely disguised concern. Last autumn, the army publicly protested against what it saw as humiliating conditions attached to a US bill that tripled civilian assistance.

Fresh accusations that the army continues to resist attempts at reconcialition with the disgruntled Baluch will now add to the sense among its critics that it remains unprepared to yield elected civilians the power they would take for granted in established democracies.

Under a media blackout, the vast and resource rich province of Baluchistan has drifted away as nationalist fighters battle Pakistani troops in the mountains, activists mysteriously “disappear”, and long-simmering discontent has boiled over into a clamour for separatism.

After tough negotiations, the political class has now united behind a move to divide the national budget equitably, cease military operations, and lure the province’s most recalcitrant elements to the negotiating table.

If that process is in jeopardy, it augurs poorly not just for Gen Kayani’s burnished reputation, but the very stability of Pakistan

Yousuf Raza Gilani promised on Wednesday that the 1973 constitution will be restored to its original form. While the statement of intent is commendable, we urge the prime minister to support his words with action on the ground at the earliest opportunity. Let’s face it, the PPP-led government has lost face on numerous occasions since it came to power early last year.

First there was the inordinate delay in the restoration of the higher judiciary. Also, question marks still linger over whether this democratically elected government is sincere in doing away with the 17th Amendment and returning to a genuine parliamentary system of governance. It has troubled many that the president, Asif Ali Zardari, has been exercising a form of authority in which the powers of the head of state and head of government appear to be conflated. That is not in keeping with the norms of parliamentary democracy and this impression must be dispelled sooner than later.

Going by the numbers in parliament, there is no stopping the government from doing away with the distortions made to the constitution by “dictators”, which is how the PM described those who amended the state’s charter to their short-term benefit. Surely the PPP will be supported by the PML-N and several other parties if it decides to table a resolution asking for the scrapping of the most contentious aspects of the 17th Amendment, specifically the powers enjoyed by the president. The question is: how many dictators are to be included in this review? Nawaz Sharif’s PML-N appears to be interested only in undoing the steps taken by Gen Musharraf. But what about Gen Zia and his blasphemy laws and the Hudood ordinances? If the constitution is to be restored to its original form, those distortions to the constitution must also be discarded. But will the PML-N, whose members enjoyed Zia’s patronage and is far more conservative in its outlook than the PPP, agree to such fundamental changes?

Mr Gilani has offered an olive branch to Mr Sharif by stating that the PPP is in favour of discarding the third-term bar on premiership. After the assassination of Benazir Bhutto, only Mr Sharif is in a position to benefit from this constitutional change. The PM has also made an effort to emphasise that there is no gulf between his office and that of the presidency. This resolve is important when some in the country are rooting for selective accountability. Let us not forget that many charged with corruption went scot-free under the Musharraf regime simply because they agreed to play ball. Everyone deserves a fair hearing.

The fact that in its response to the Supreme Court judgment of Dec 16 the nation is divided cannot be denied, and prudence demands that the causes of this division should not be brushed aside without careful scrutiny.

A large section of society believes that Pakistan has become a corruption-free entity and a judicially controlled democracy while a none-too-small section feels deeply hurt. Much can be said for and against both sides.

The hailers are largely guided by their desire to wipe off the shame of becoming one of the most corrupt states in the world. They appear full of zeal for righteousness. However, they will do their cause enormous harm if they fall for the universally repudiated view that the ends always justify the means. The people of Pakistan paid a heavy price for taking this route when they welcomed the usurpation of power by Ayub Khan, Ziaul Haq and Pervez Musharraf.

The wailers are largely moved by the apparent setback to their group. They think the law has been used for a political purpose. They have strong memories of the Tamizuddin and Nusrat Bhutto cases and the judgment against Zulfikar Ali Bhutto. They could be wrong. However, they will do themselves enormous harm if they appear to be defending corrupt persons or practices.

Somewhere between the two extremes stand those who wish to make sure that good intentions do not lead to the dreaded hell. Some of them have a longer record of denouncing corrupt rulers and condemning the NRO than the born-yesterday anti-vice squad. They believe the NRO was a bad law, that it should not have been made, that no one claiming public support should have sought to benefit from it and that those who made this obnoxious law as well as its beneficiaries should pay for their lapses.

According to them the Supreme Court verdict has two parts: one dealing with the NRO, the other with broader themes. They have no quarrel with the first part. They only want to have their fears of the long-term implications of some of the assumptions underlying the court order duly and properly addressed.

The NRO was such an easy target that a single shot (Articles 4, 8 and 25 of the constitution) was enough to demolish it. A fusillade from heavy cannons (Articles 62 (f), 63 (i and p), 89, 175, and 227) has created problems.

The clauses of Articles 62 and 63 cited now constitute part of Ziaul Haq’s arbitrary amendments. They have never been debated by a representative assembly and have been consistently denounced by democratic opinion. It has often been said that the legislatures have not touched them. But this argument should be examined in the context of the circumstances in which the post-Zia assemblies have been elected and the conditions under which the democratic regimes have been allowed to function. Invoking Ziaul Haq’s interpolations in the 1973 constitution, whose revival in its original form is the battle cry of all democratic parties, is like quoting a PCO judge’s ruling before today’s independent judiciary.

Further, reference has again been made to the ‘salient features of the constitution, i.e., independence of the judiciary, federalism, parliamentary form of government blended with Islamic provisions’ and ‘no change in the basic features of the constitution is possible through amendment’. The argument was last heard in May 2000 when 12 judges of the Supreme Court had not only upheld the Pervez Musharraf coup of October 1999 but also allowed him the power to amend the constitution.

Now, the debate over certain parts of a national constitution being outside parliament’s authority to amend them has been going on in Pakistan, India and Bangladesh for over 40 years (Indian Supreme Court verdicts of 1967, 1973 and 1975; Pakistan Supreme Court verdicts of 1963, 1997 and 2000). Professor Conrad, the German scholar who has done much to promote this principle, has succinctly put it thus: ‘Any amending body organised within the statutory scheme, howsoever verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its constitutional authority.’

An essential question is: are courts the sole forum for determining the basic or fundamental or salient features of a constitution? In many countries (including Canada, Germany and India) the provisions that cannot be routinely amended by parliament are identified in the constitution itself. This is an issue that calls for a thorough debate.

In any case the issue before the Supreme Court was not an amendment to the constitution that would have attracted the basic features theory. The issue before it was an ordinary presidential ordinance. And for laws and ordinances that conflict with the constitution clear remedies are available.

By invoking Article 227 in the present case the Supreme Court seems to have put Islamic injunctions in command of the whole constitution. Quite a few lawyers argue that this amounts to overruling the court’s judgments in the Hakim Khan (1992) and Kaneez Fatima (1993) cases.

The position as far as a lay writer can understand is this: the power to strike down a law for being repugnant to Islamic injunctions lies with the Federal Shariat Court and no other court. Article 227 only allows the Council of Islamic Ideology to recommend changes in laws on the ground of repugnancy to Islam. The article does not empower any forum to strike down any law. When 17 judges of the highest court invest Article 227 with the power to nullify a law it could amount to constitution-making. It is necessary to dispel the fears that the courts could start striking down any law they consider violative of Islamic injunctions.

Besides, the matter is not one of law alone, it is essentially political. The ‘salient features of the constitution’ theory has no answer for conflicts between these features — between a parliamentary form of government and Islamic injunctions, for instance. And what will happen to the independence of the judiciary if one accepts the view propounded by many Islamic scholars that in an Islamic order the ameer is the head of all state organs — the executive, the legislature and the judiciary?

One cannot forget the case started by Mr Kaikaus, a former Supreme Court judge, in a Shariat appellate bench but which was dismissed by the Federal Shariat Court on a technical ground. He appealed to the bench but withdrew his plea because he did not think the judges on it were Muslims! Mr Kaikaus had branded the parliamentary form of government, the system of elections, and the existence of political parties as un-Islamic! Fears of many such cases coming up are not groundless. The people of Pakistan have every right to ask whether Ziaul Haq’s agenda has been revived.

The NRO case, Dr Mubashar Hasan and others versus the federation, has once again stirred a hornet’s nest.

There is thunderous applause for bringing the accused plunderers and criminals to justice and widespread speculation on the resignation of the president. Very little analysis is being done on the overall effect of the judgment itself.

While, the NRO can never be defended even on the plea of keeping the system intact, the Supreme Court judgment has wider political implications. It may not, in the long run, uproot corruption from Pakistan but will make the apex court highly controversial.

Witch-hunts, rather than the impartial administration of justice, will keep the public amused. The norms of justice will be judged by the level of humiliation meted out to the wrongdoers, rather than strengthening institutions capable of protecting the rights of the people.

There is no doubt that impunity for corruption and violence under the cover of politics and religion has demoralised the people, fragmented society and taken several lives. It needs to be addressed but through consistency, without applying different standards, and by scrupulously respecting the dichotomy of powers within statecraft. In this respect the fine lines of the judgment do not bode well.

The lawyers’ movement and indeed the judiciary itself has often lamented that the theory of separation of powers between the judiciary, the legislature and the executive has not been respected. The NRO judgment has disturbed the equilibrium by creating an imbalance in favour of the judiciary.

The judgment has also sanctified the constitutional provisions of a dictator that placed a sword over the heads of the parliamentarians. Moreover, it has used the principle of ‘closed and past transactions’ selectively.

It is not easy to comprehend the logic of the Supreme Court that in a previous judgment it went beyond its jurisdiction to grant life to ordinances — including the NRO — protected by Musharraf’s emergency to give an opportunity to parliament to enact them into law.

If the NRO was violative of fundamental rights and illegal ab initio, then whether the parliament enacted it or not it would have eventually been struck down. By affording parliament an opportunity to own up to the NRO appears to be a jeering gesture unbecoming of judicial propriety.

The NRO judgment has struck down the law also for being violative of Article 62(f), which requires a member of parliament to be, ‘Sagacious, righteous and non-profligate and honest and ameen’.

Hence, the bench will now judge the moral standing of parliamentarians on these stringent standards set by the notorious Zia regime. This article of the constitution has always been considered undemocratic and a tool to keep members of parliament insecure.

If parliamentarians, who also go through the rigorous test of contesting elections in the public domain, are to be subjected to such exacting moral standards then the scrutiny of judges should be higher still.

After all, judges are selected purely on the value of their integrity and skills. Judges who erred in the past seek understanding on the plea that they subsequently suffered and have made amends. Should others also not be given the same opportunity to turn over a new leaf? How will sagacity and non-profligate behaviour be judged?

Apart from Dr Mubashar Hasan, not even the petitioners of the NRO case are likely to pass the strenuous test laid down in Article 62 of the constitution. This could well beg the question whether it is wise for those in glass houses to be pelting stones.The judgment goes much further. It has assumed a monitoring rather than a supervisory role over NAB cases. In India, the supreme court directly interfered in the Gujarat massacre but it did not make monitoring cells within the superior courts.

Is it the function of the superior courts to sanctify the infamous NAB ordinance, the mechanism itself and to restructure it with people of their liking? It is true that the public has greater trust in the judiciary than in any other institution of the state, but that neither justifies encroachment on the powers of the executive or legislature nor does it assist in keeping an impartial image of the judiciary.

The long-term effects of the judgment could also be counter-productive; perpetrators are often viewed as victims if justice is not applied in an even-handed manner and if administered in undue haste with overwhelming zeal. It is therefore best to let the various intuitions of state take up their respective responsibilities because eventually it is the people who are the final arbiters of everyone’s performance.

Here is his latest piece in The News of November 24, 2009 which I took from his website.  

Indian Prime Minister Manmohan Singh’s official visit to the United States should have been the major story in Pakistan’s media. But our right-wing anchors and columnists and “get-Zardari” editors are far more focused on the domestic power struggles to realize that the nightmare of Pakistan’s strategic encirclement may already be on the brink of becoming reality.

The less attention Pakistanis pay to fighting terrorism and figuring out a way of dealing with the world, the more likely it is that India — the country with which Pakistan has fought four wars in 62 years — will continue to gain ground. India already has better relations with the governments of Afghanistan and Iran, our western neighbours. The more we demonstrate hatred towards the United States, the more we contribute to making the India-US relationship into an anti-Pakistan alliance, which need not be. We could complain and get angry with the US, as the Jamaatis and the Ghairat lobby advocate, or we could analyse the rising Indian influence and figure out ways of combating it.

It is interesting to note that in the ongoing Pakistani debate about US-Pakistan ties, India is seldom mentioned. Our jihad sympathizers relate their anti-Americanism to US actions against Muslims around the world, without realistically examining whether shouting slogans for our Arab brothers gains us any advantage in defending Pakistan against India. Pakistan has traditionally sought American help in order to stand up to India. If Pakistani anti-Americanism is not managed in a way that the Americans do not see Pakistanis as enemies, India’s strategic advantage will continue to increase.

The US would become a force-multiplier for India in our region instead of being a potential balancer that keeps India’s anti-Pakistan moves in check. We would be left holding anti-American demonstrations and publishing anti-American diatribes while India will be the beneficiary of US investment, defence deals and civil nuclear deal. Do we really want that to happen? Or is it already too late to stop the very strong ties, which have been built between India and the US? Let us take a look.

In the Bush administration 18 Indian-Americans served in various positions over the course of eight years compared with one Pakistani-American. In the Obama administration 22 Indian-Americans are already serving in senior positions (Assistant Secretary and above) and there is one Governor (out of fifty US states) of Indian descent. Almost 200 Indian-Americans serve as Congressional staffers compared with 12 Pakistani-American, three of whom work for the same Congresswoman. There are numerous State Department and Pentagon officials and at least one the US Ambassador of Indian origin.

More than 100,000 Indian students are enrolled in US universities compared with less than seven thousand Pakistanis. The number of professors of Indian origin in the US is at least one hundred times more than professors from Pakistan-totally disproportionate to the 1 to 7 population ratio.

The Indian Congressional caucus is three times as large as Pakistan’s and even the Chairwoman of the Pakistan caucus in the House of Representatives is simultaneously a member of the India caucus. There is hardly a US media organisation where Indian names are not prominent whereas Pakistani journalists only make their noisy presence felt in our own introverted media and that too only on domestic issues. Any Pakistani who manages to earn respect of the Americans is immediately denigrated as an American agent in Pakistan. The Indians, on the other hand, see their countrymen as spreading Indian influence in America.

Ironically, India was historically never an American ally and did not have the same level of aid (especially military assistance) from the United States, as did Pakistan. So how did India transform itself into a close partner after the cold war and Pakistan manage to become the unhappy semi-ally? The question is relevant today because of what we Pakistanis have become and what we have achieved over the years. Pakistan is America’s oldest ally in the region but Pakistan and the US are more estranged today than they were at any time in history. India was a Soviet ally till 1989 and yet India and the US have strong economic and strategic ties.

The Indians appear to have realised early on that even if they did not have security ties with the US building close ties at other levels was important for the long-term. Pakistan did the reverse. While we were recipients of large amounts of military aid, we did little to build a presence in US academia or media. Our community remains focused on getting attention in Pakistan and few Pakistani-Americans have earned the stature in mainstream American intellectual or political life that could translate into serious influence. Over time, US-based Indian organizations have helped build close cultural and educational ties between the two countries. Bollywood is now penetrating Hollywood while there is little comparable Pakistani ingress.

The India-US nuclear deal is considered a defining moment for the India-US relationship. Let us look at the reactions in India over the Indo-US nuclear deal. The Congress-led government was in favour of the nuclear deal but the Communist parties who were allied to the Congress government at that time did not ideologically support the deal. There was debate and discussion in the Parliament and in the Indian electronic and print media for nine months. In the end when the left parties and BJP decided to vote against the bill, the Congress obtained the support of other smaller parties.

The government secured 275 votes in the 541 member Lok Sabha for the India-US civil nuclear deal and their opponents secured 256 votes. The left parties targeted the government for changing the traditional policy of non-alignment and becoming too close to the United States but it was through discussion and debate, not street demonstrations, rubbishing America in the media or calling influential Indian-Americans as CIA agents.

Also, the political leaders faced fire, not the Indian ambassador in Washington and other officials who were following orders and doing their job. Also during the entire controversy the Indian military did not openly involve itself or say anything about the deal. And throughout the entire period the Indian-American community was very strongly behind the bill, they lobbied hard in the US for the passage of the bill and they lobbied hard back home for the passage of the bill in Parliament.

On the other side let us look at the Kerry-Lugar Bill controversy and the way it played out both in Pakistan and amongst the Pakistani-American community abroad. The strong anti-Americanism in Pakistan led the initially pro-Kerry-Lugar Pakistani American community to become silent. The debate in the Pakistani media was less a debate on Pakistani policy options and more a hate campaign against the US. Politicians attacked their own government; the army spoke out publicly against the Kerry-Lugar-Berman Bill’s contents; and once it became clear that the US Congress would not change its views, the whole thing subsided like foam at home even though offense had unnecessarily been caused to American Congressmen.

Why is it that despite 54 years of close ties with the US Pakistan has not been able to help build a relationship of influence in the US? Our problem is that unfortunately we don’t know how to influence others – we only know how to abuse them. The Quaid dreamt of Pakistan being a global power with influence all over the world. How does one build Pakistan’s global influence?

Pakistan’s ability to change minds of global powers will be a source of Pakistani influence; Not jihadis who will keep getting arrested and keep Pakistan under watchful eye of major powers. And yet over the decades every Pakistani who has tried to build close ties with the US, like Sahibzada Yaqub Khan, Najmuddin Sheikh, Jehangir Karamat, Mahmud Ali Durrani and Husain Haqqani, has been labeled as an American agent rather than being seen as Pakistanis who can better communicate with Americans in Pakistan’s interest.

If India is about to win huge contracts and get heaped with praise during the Manmohan Singh visit to Washington, Pakistanis need to review how we have played our cards wrong for decades. And then, let us work on a plan to change the relationship if for no other reason than to deny our adversary the advantage of being the world’s sole superpower’s sole South Asian partner.

Sadiq Saleem is a businessman and analyst based in Toronto, Canada. E-mail: sadiqsaleemca@gmail.com