Mad ‘Sacred Cow’ Disease

Chief Justice Sacred CowAs I was thinking about the vilification of Marvi Memon for daring to suggest that maybe we should get the facts before we construct a shrine to Dr Aafia, it started to occur to me that part of the reason that it’s so easy to attack Marvi Memon is because she is a politician. We love to vilify them. But there is another group that is off limits for criticism – judges.

The Supreme Court has been highly political over the past few years, taking suo moto notice of all sorts of political cases as if there were no other issues in the country. The judiciary seems to have realized its political power and the fact that its become a sacred cow. Unfortunately, the result of this mixture is Mad Sacred Cow Disease.

Take the sugar price issue. Labour and Manpower Minister Syed Khursheed Shah dared to say what everyone in the world knows, which is that commodity prices are determined by the laws of economics – supply and demand. Certainly the courts should protect open and transparent markets so that there is no price fixing, but instead the LHC decided to do some price fixing of its own. When this was pointed out, the judges didn’t get reasonable – they got MAD.

“This court always welcomes healthy, constructive and fair comments on the merits of the decisions in good faith and in temperate language, without impugning the integrity or impartiality of the judge and expects that unwarranted and uncalled for comments would be avoided because judgments are based on law and the Constitution,” the Supreme Court office said in a rare statement.

But what if we believe that the judges are acting without “integrity or impartiality”? We have no problem accusing everyone in the Cabinet, the National Assembly, the Provincial Assemblies…everyone down to a rickshaw driver…of being corrupt. But the judges are somehow off limits?

The Supreme Court said that it “is following the Constitution and has played its due role assigned to it by the Constitution and law”, but I looked through the entire constitution and have not found where it says that the judges should set the price of sugar. If someone can point out that clause to me, I would be much obliged.

The same can be said about the 2009 decision on the carbon tax. Again, the constitution appears to be fairly clear in Article 77 – and the Supreme Court set the constitution aside to come to its own determination.

Criticising the courts shouldn’t be controversial, especially if the court is going to choose to insert itself into controversies.

Setting sugar aside for a moment, consider the bigger controversy which is the NRO. Human rights activists and legal experts have roundly criticised the court’s behaviour in this regard. Remember what Asma Jahangir wrote in December:

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.

The situation becomes even more troubling when we remember that only a few weeks before the Chief Justice warned that no one should question the courts, he also stated that the courts will intervene in any state organ. This statement prompted Asad Jamal to ask an important question, then: “Who will hold the courts accountable?”

Granted, that the courts are there to protect the rights of the people when the executive transgresses its jurisdiction. Granted too, that it is the courts’ job to interpret laws and intervene in case they violate fundamental rights. But who will hold the courts accountable? Should they indulge in judicial excesses? Nobody is ready to raise this question in these times of judicial activism. Meanwhile, the courts may do well to follow the unwritten code of self-restraint.

We are a nation of laws, are we not? You can read any newspaper or watch any TV talk show on any given day and there will be some discussion of accountability for the police, accountability for ISI, accountability for politicians – why can we not have accountability for judges also?

We have already seen the disastrous results of a nation of generals. Let’s not make the the same mistake and try to fashion ourselves as a nation of judges. A dictator is a dictator whether he wears a crown, a turban, khakis or black robes. Pakistan doesn’t need any more dictators, and we don’t need any more sacred cows, either. That’s just madness.

Marvi Memon vs. Ghairat Brigade

Marvi Memon

Marvi Memon (PML-Q) has been making quite a name for herself lately. Her recent statements saying that we should get the facts before making a martyr of Dr Aafia has certainly raised the blood pressure of drawing room politicos. What’s crazy is that what she’s saying really isn’t even that controversial – just that we should have the facts before we make a judgment. She still calls for the Aafia to be returned to Pakistan, she just thinks that we should find out for ourselves what the truth is. But since when has the truth mattered to the Ghairat Brigade?

Writing for Express Tribune this week MNA Memon said,

Having heard plenty of evidence corroborating Dr Aafia Siddiqui’s alleged links to CIA and al Qaeda, from all those who had held important and relevant posts then and now, it became incumbent on me not to follow the herd. It became necessary for me to call a spade a spade and for that reason I was not part of the National Assembly walkout in her favour. Having said that, I have always maintained that she should be brought back to Pakistan and be tried here because she is a Pakistani, even though there are doubts that she may now have American nationality. Her trial in the US was far from fair with many human rights violations against her, but till allegations against her dangerous links are proven wrong she could not be called ‘qaum ki beti’. I also added that real leadership did not ‘cash in’ on wrong popular moods.

Real leadership may not ‘cash in’ on wrong popular moods, but too often our elites – especially in the media – do just that. Fasi Zaka called out these elites on their hypocrisy last week in his column, “The Aafia Mafia”:

I have a friend who works in the production unit of Pakistan’s most watched channels, and she told me an interesting anecdote that when the verdict was announced for Dr Aafia (not the sentencing which has been done separately now) the news team all thought Dr Aafia was not entirely innocent because of other facts in the case, but when they went on air they agreed to do so with the unequivocal line that she was innocent.

I imagine politicians are in the same boat, even if they have doubts, voicing that opinion is almost like a taboo. I suspect it has to do with the same line of logic that causes many to be inadvertent sympathisers of the Pakistani Taliban despite their bloody war against Pakistani citizens. Any overt sense of religious symbolism throws out rationality in a sense of what could loosely be described as “catholic guilt”.

Of course, throwing logic and reason out the window and hyperventilating about conspiracy theories is a popular pastime, and so we saw all sorts of attacks on Marvi Memon even in the National Assembly where all manner of people from various parties knocked each other over trying to get on the bandwagon first.

Her statement invited harsh criticism of the parliamentarians not only those of PML-N but her party colleagues also criticised her and condemned her statement, saying she is following the agenda of other forces including NGOs. Sheikh Rohail Asghar of PML-N said that US courts could not prove any allegation of terrorism against her. Dr Aafia is a woman and victim of oppression, he said.

This has got to stop. Not the defense of Dr Aafia, not the statements by Marvi Memon and Fasi Zaka…I’m talking about the way that every time there is some difficult or controversial situation, we through all reason out the window and go off half cocked.

You can agree or disagree with Marvi Memon, but you don’t have to accuse her for having her own opinions. If we allow ourselves to get carried away on the Ghairat Brigade bandwagon. We need reasonable and civil discourse in this country, and what we’re seeing around the Dr Aafia case is not it.

Marvi Memon: Dr Aafia Is No Hero

Marvi MemonA prominent, vocal Pakistan Muslim League-Quaid (PML-Q) leader Marvi Memon has said that Dr. Aafia is an alleged Al Qaeda and CIA agent; till she is proven innocent in Pakistani courts, she can not be called as the daughter of Pakistan or a national hero.

Marvi, talking to SAMAA, has said that the reality about Dr. Aafia is being hidden and all political leaders and government representatives are trying to gain political mileage and applause from the people by expressing popular sentiments about her.

She added that she and many others did not participate in the parliamentarians’ walk out staged on Monday, so it can not be called as an unanimous walk out in favor of Dr. Aafia. She continued to say that she has the courage to speak her heart out, while others who avoided the walk are afraid of people’s anger and have chosen to remain silent.

Memon further added that apart from the US allegations, she has come to know through other sources that Dr. Aafia has been accused of being an agent of Al Qaeda and CIA.

“She is also allegedly a US citizen and I want to know the reality; she must be brought back and put under trial within the country to expose the reality and the truth behind the allegations leveled against her,” she added.

“I demand that the real facts be brought in front of the nation. Real leaders only speak the truth and do not follow wrong sentiments of the masses. Those who are claiming to be well-wishers of Dr. Aafia are dared to solemnly say that they really convinced of her innocence – or are they just following the popular mood of the masses of Pakistan,” she demanded.

“Earlier she was a citizen of Pakistan; she later acquired US citizenship. She must be brought back as she has broken Pakistani law. She must be probed within the country to expose the real truth. An alleged CIA and Al Qaeda agent can not be called a daughter of the nation or national hero until she is cleared of all the allegations. I can not share the truth told by the others as I personally want to be sure of it,” Marvi Memon commented. SAMAA