Posts Tagged ‘Judiciary’

Pilgrimage as Secular Activity: A Constitutional Perversion

January 30, 2011

By Pilid Lao

Today’s Supreme Court decision in Prafull Goradia v. Union of India is ludicrous to say the least. The question was straightforward and simple: whether a government grant funded by taxpayer money violates the proscription of Art. 27 against state fostering religious activity. Article 27 of the Constitution of India states:

No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. (more…)

After the Long March – What Now Comrades?

March 17, 2009

By Anjum Altaf

Let us begin when everything was as it was supposed to be.

Before you came,
Things were as they should be:
The sky was the dead-end of sight,
The road was just a road, wine merely wine.

It was November 2006. The sun was in the sky, everything was alright with the world, the Enlightened Moderate, everyone’s favorite, was firmly ensconced on the throne, the Chief Justice was still the Chief Justice, and the lawyers were beyond the dead-end of sight.

This is what we recommended, based on our analysis of the situation, in a paper presented in Islamabad:

So what is to be done beyond the struggle for civilian rule? In the absence of a political coalition to support the demand for improvements in human rights, civil society groups at the present juncture in Pakistan should look for mechanisms to strengthen the instruments of social control over governments, to weaken the latter’s control over critical areas of resource allocation, and to increase the accountability of its actions….

A critical area is the rule of law where the arbitrary power of the state or of one individual over another needs to be curtailed. Mechanisms need to be found to shelter the judiciary from the predatory powers of the executive and to try to ensure easier and more equitable access to and enforcement of justice. Civil society should devote efforts to wrest a lot more input in the design and staffing of the institutions of government providing justice and enforcing the law and a lot more control over the promotion of officials within these institutions. Once again, we learn from Tocqueville that this is not likely to be an easy struggle: “Unable to do without judges, it [the government] likes at least to choose the judges itself and always to keep them under its hand; that is to say, it puts an appearance of justice, rather than justice itself, between the government and the private person.” Do we need Tocqueville to remind us of this reality in Pakistan? Nevertheless, the efforts need to be made as part of a multi-dimensional strategy to exert pressure on the state.

Fast forward to November 2007: All hell had broken loose, the Enlightened Moderate had shown his true colors, the Chief Justice had been sacked, and the lawyers had appeared on the horizon. All the talk was about a new dawn with the restoration of true democracy.

Now everything is like my heart,
A color at the edge of blood: 

And the sky, the road, the glass of wine?
The sky is a shirt wet with tears,
The road a vein about to break.
And the glass of wine a mirror in which
The sky, the road, the world keep changing.

This is what The South Asian Idea had to say on the day the Emergency was declared:

So, going back to “free and fair” elections, back to “true democracy,” as promised by a dictator, ruling under an emergency, to a bunch of democrats ready to cut a deal, is not going to do much good. It will be very old wine in very old bottles. Well-wishers of Pakistan, at home and abroad, need to grasp the one promising development in an otherwise sorry history. They have to agree on a one-point agenda—the Supreme Court has to be restored; the independence of the judiciary has to be guaranteed. This is the only leverage we have at the moment, the one issue on which a broad coalition can unite. This is where the fight for “true democracy” begins. Whosoever is next anointed by God would need to be put to this test of sincerity. Otherwise, the moment and the opening would be lost. Those who are fighting would need to go on fighting.

Forward again to March 2009: The Long March is over, the Chief Justice has been reinstated, the Supreme Court has been restored.

What now? Is this the Revolution?

We don’t think so. As we said: This is where the fight for “true democracy” begins.

There is still no political coalition at the grassroots pushing for systemic change. This is still a movement led by civil society that needs to act on behalf of citizens to wrest control from the state to enlarge the space for democratic action.

Old habits die hard. Civil society has to ensure that the next person anointed by God to govern this country does not wrest back this hard-won advantage, does not shrink this space that has opened up. The independence of the judiciary would have to be guarded and guaranteed so that it can stand up to the other organs of the state and begin to act on behalf of the citizens of the country.

And there could be some new complications on the horizon.

We wish the Peoples Party had succeeded because it had representation in every province of the country and could have furnished the glue for national unity. But that was too much to hope for – as we had mentioned “this is a society at a stage of development where political parties are personal affinity groups.” If the Peoples Party had been a political party we would have seen it exerting control over its leader and not the other way around.

Now, although an important victory has been won, there is the danger of provincial polarization much as we saw when the Awami League emerged dominant in one province and had no support elsewhere in the country.

How will the political parties (that are not really political parties) deal with this complication? How will civil society force the politicians to maneuver through these rapids with care?

Civil society has been here before – Ayub Khan was toppled by the students and Bhutto fell at the hands of the traders. But then civil society folded, gave back its gains, and succumbed to the charms of the status quo. Professor Ralph Russell noted this many years ago: “For a century now all sections of the modern sophisticated elite have continued the traditions of their medieval forbears (in regarding it as the whole duty of the unsophisticated masses to do as the elite tells them) and the traditions of Sir Sayyid Ahmad Khan (of looking for essential support – even if, in some cases, only moral support – to more powerful forces based outside their own country, be it the British, the Americans, the Russians or the Chinese).

And even more ominously, as a friend from Ahmedabad put it: Who will protect us from civil society? 

As we have said: The fight has just begun. Some parts of the picture have brightened, others are threatened with darkness. Even civil society has to prove itself. It is still a long way to go.

Don’t leave now that you’re here –
Stay. So the world may become itself again:
So the sky may be the sky,
the road a road,
and the glass of wine not a mirror, just a glass of wine.

[Excerpts are from the poem by Faiz (rang hai dil ka merey) translated by Agha Shahid Ali (Before you Came). The quote from Ralph Russell is from his essay Strands of Muslim Identity in South Asia.]

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