Time to introspect

THE passing of the 21st Amendment was an embarrassing moment in the constitutional history of Pakistan. One would have hoped that the establishment of military courts would at least serve as a moment of awakening for the legal community. Unfortunately, a meeting of the Pakistan Bar Council (PBC) last month suggested otherwise.

There is a consensus on the contribution of our dysfunctional criminal justice system in pushing us towards where we stand today. The judiciary, law-enforcement agencies and the state have had their fair share of criticism but one major component of our legal system continues to evade, let alone, admit liability: the lawyers themselves.

As a lawyer, one feels responsible for the present constitutional mess. There is no doubt that the state has failed to bring adequate reforms and provide necessary resources, but we must also learn to look into ourselves and admit that our legal culture and practice has made matters worse.

After all, is the legal community not a part of the entire judicial system just as much as the judiciary itself? Does the speedy disposal of cases not depend on the lawyers just as much as it does on procedure? Does the failure of the judicial system not also indicate a failure on part of the legal community?
Then, should the 21st Amendment not be seen as an opportunity for introspection within the legal community? Is it not time that we turn inwards and reflect on our own selves? Assess our shortcomings? Evaluate our limitations and analyse the deplorable conditions in the lower courts? Should we not begin to question the legal practices we have entrenched and the legal culture we have fostered?

Consider, for instance, Pakistan’s lower courts. This is the forum an ordinary citizen approaches only to discover that the courts of first instance are in fact hostage to the municipal or provincial bar council. Calls for going on strike are a regular occurrence in Lahore, now averaging twice (or even more) in two weeks.

Reasons can vary from the killing of a bar member to a minor scuffle with the traffic police. This practice of going on strike for the most trivial reasons has now crystallised into an accepted ‘legal culture’ of our lower courts.

The success of the lawyers’ movement has had an adverse impact on our legal culture. It has given the legal community a sense of power and entitlement, a belief that they command popular support and thumping confidence that stems from having ousted a dictator.

Consequently, strikes have become a norm; threatening judges a custom; and damaging property a routine. Throughout the country, members of the bar are free to act with impunity and one may question if this really is the same profession that was once M.A. Jinnah’s?

There should be no doubt that the 21st Amendment is a watershed moment in our constitutional history. The PBC had the opportunity to use the present criticism of our judicial system as a springboard to garner support and reverse the negative imprints left behind by the lawyers’ movement. Rather, it chose to observe a black day and in doing so, legitimised the existing culture that is partially responsible for the present mess.

Would it not have been better if the PBC had held up a mirror to the legal fraternity and mustered up the courage to identify its faults? Would it not have been more fitting if it had identified what the legal community could do to improve the judicial system? Or what changes should the legal fraternity embrace in order to, at least, dispel the impression of a stuttering judicial system? Would it not have been better if the PBC had provided an action plan that the legal community should adopt in order to improve our judicial system and thereby reduce the temptation to refer to military courts?

Would it not have been more suitable if the PBC had admonished the legal community for adopting practices that contribute in delaying the resolution of disputes? Would it not have been more appropriate if the PBC had passed a resolution censuring all proponents of the rule of law who use legal procedure as a smokescreen for the abuse of law? Would it not have been better if the PBC had pushed for a stronger regulatory framework for punishing corrupt legal practices?

Maybe, the opportunity has not been lost as yet. There is still some time. With a constitution petition pending before the Supreme Court — the only sensible action taken so far — the PBC should now shift its emphasis towards winning back the public’s confidence in our judicial system. Even if the Supreme Court upholds the 21st Amendment, the legal community could still make such military courts redundant by improving its own performance.

The writer is a lawyer.

b.soofi@gmail.com

Published in Dawn, February 17th, 2015

Systemic crisis - Newspaper - DAWN.COM

IT is quite obvious that our health system is in deep crisis on all fronts. No wonder it is unravelling in full public view, unable to cope with growing demands being placed on its limited capacity and funding. Take Punjab as a case in point, where gaping deficiencies in the health system have been exposed through several tragedies in the past few years.

The most recent was the avoidable tragedy of newborn deaths in Sargodha and Vehari district hospitals. During the provincial government’s previous term, scandals such as those involving spurious and substandard medicine at the Punjab Institute of Cardiology and over-ingestion of Tyno syrup in the Shahdra Town area and the resultant loss of hundreds of lives, still rankle in public memory. In the above cases, public outcry led to inquiries being launched by the government. Yet the reports have not yet been released. This has not helped the closure of wounds nor the lesson-learning exercise.

However, in the wake of the Sargodha and Vehari incidents, apart from local level inquiries and suo motu action taken by the Supreme Court, a new, wide-ranging body of experts was constituted in November to recommend ways to fix an increasingly malfunctioning health system. In December the committee finalised a range of recommendations, which can be seen as a positive step towards tackling health-sector problems.

Of its many laudable recommendations, the one pertaining to the need for a mortality audit as well as an audit of medico-legal cases at governmental hospitals is long overdue. These recommendations are tied to third-party evaluations of government hospitals. Together these inter-connected issues go to the heart of long-ignored problems of patient safety and the quality of healthcare on offer in these hospitals. Such steps are important to revive confidence in the public health system.

Part of the problem of high mortality and morbidity figures owes to shortage of staffing at all levels. Nowhere is this more apparent than in the shortage of nurses. In this regard, the committee has focused on the issue of streamlining nursing education. Pakistan produces more doctors than nurses. The nurse-patient ratio in Pakistan is reportedly 1: 50 which is extremely low.

The committee has recommended upgrading nursing schools into colleges which will presumably enhance intake, in addition to improving standards. There is also a need to bring more balance to the female-male ratio among nurses. Currently, there are overwhelmingly more female nurses than male, a fact largely attributed to the dominant perception of females as caregivers. This perception must be radically readjusted to fill the growing gap in nurse’s supply and demand.

In line with the Punjab government’s enhanced budgetary allocations for district hospitals, there appears to be renewed emphasis on upgrading and improving hospitals at district level and sub district level. To address workforce shortage at district level, it is proposed that newly qualified doctors from state medical colleges serve at least two years at the district headquarters hospitals. This recommendation should be followed through while keeping in mind lessons learnt from a largely failed experiment in the 1990s of making newly qualified doctors serve for a number of years in rural areas. Most of the basic health units in Punjab are without doctors.

In the committee report there seems a reinforced focus on newborn and child health. As the Sargodha and Vehari incidents have demonstrated, there is an urgent need to tackle the growing problem of newborn and infant death as part of broader provision for mother and child health wraparound services. What makes the committee’s recommendations on this front different from a lengthy focus on these areas with no tangible results is not clear from the press accounts.

Another good point included in the ‘must-do list’ is the introduction of an essential drugs list and improvement and transparency in the drug procurement procedures. These measures, if implemented, can prove effective in the provision of safe and affordable drugs to public health system users.

The committee has done well to quickly produce its final report, despite its long wish lists with no costs attached. The concern here is that the report may suffer the fate of similar exercises of spelling out ‘must-dos’ and ‘game changers’ without allocation of resources and sustained political will. The hope is that this time round it would be different and that this report will form the basis of an implementation plan and a wider public conversation on the vision for affordable, safe and efficient healthcare. If the government is serious about reforming the health sector, it should not allow the recent healthcare crises to have been in vain, and instead work assiduously to fix the system and make it fit for the 21st century.

The writer is a development consultant and policy analyst.

drarifazad@gmail.com

Twitter @arifazad5

Published in Dawn, February 17th, 2015

If The Beatles were denied a visa

“This is to inform you that due to the inability to acquire a visa, the qawwali programme by Fariduddin Aiyaz, Abu Muhammad and Bros. from Karachi, to be held on Monday, February 9 … has been cancelled. Shruti Sadolikar will be performing light classical music on that evening instead.”

The notice by Sanatkada, a group of men and women from Lucknow who are committed to their city’s cultural revival, broke a few hearts. If there were a choice, I and many others would go for Sadolikar any day. And I wouldn’t have said Shruti Sadolikar will be performing instead of the qawwals. She is too big an artiste to be just thrown in casually.

Imagine saying ‘We regret The Beatles could not get an Indian visa so Bob Dylan will stand in.’ The Beatles, of course, came to India albeit on a spiritual journey in a different era. Hinduism was an attractive proposition at par with spiritual quest, not an ugly campaign led by trident-bearing proselytisers.

Anyway had Bob Dylan agreed to step in for the Liverpool gang, that too while not charging a paisa or without standing on prestige, he would have been like Shruti Sadolikar. The simple, friendly, unassuming singer counts among today’s topmost vocalists in India. And she has a heart of gold. “It is my duty to help music fans if they have been disappointed like you are today,” she told the small audience before starting with a serene composition in Raag Yaman. No light music. By the way, Sadolikar is the principal of the Bhatkhande College of Music, heir to the Marris College set up in Lucknow in 1926 as the fountainhead of Indian musicology.

Of course, I had not gone to Lucknow to hear the qawwals from Pakistan. They are good, and I had already enjoyed them at a private concert in Delhi. For some kind of cussedness that goes on between the two countries the Foreign Correspondents Club and the Press Club of India had abruptly called off a programme each by the team recently. Why am I sure the Karachi Press Club would never have cancelled an Indian programme because someone in Islamabad felt time was not ripe for a cross-border cultural exchange?

I knew the qawwals would not get the visas though I had hoped for the sake of their fans in Lucknow they would. A friend of the current high commissioner in Islamabad said he had called him on the phone to plead on behalf of Sanatkada. However, as far as I know, ambassadorial prerogatives between the two countries have been abridged by their respective home ministries. And home ministries are dicey institutions. Will the new Indian foreign secretary’s coming visit to Pakistan help set things right at least with embarrassing visa issues?

My plan for the Sanatkada event was to listen to Saman Habib’s reading of old letters from Lucknow, but that was only on the next day. So I cast my vote in the Delhi election in the morning and reached the fabled city of my childhood in time to enjoy a baitbaazi competition at the Baradari.

I do not know much about the origin of baitbaazi nor how to explain it to others. But I know you can’t have it in English. It is a contest between two teams that are required to have a good memory for Urdu verses. Opponents have to recite a verse that begins with the last letter of the previous verse read by a rival. The quality of repertoire and quick recall were the mainstay of the Sanatkada evening at the Baradari. My parents had heard M.S. Subbalakshmi and Kesarbai Kerkar there.

Listening to Saman Habib was the highpoint of the short visit to Lucknow. She is a polished performer with all the right inflections. She has a lovely voice for the microphone and read letters, manuscripts, colonial administrative notes with professional ease.

Sanjay Mattoo partnered her in the letter-reading event. He has a gift for creating a visual aura with his reading voice. A teacher in Delhi, Sanjay Mattoo has links with all the Kashmiri Pandit families that have lived in Lucknow for decades. Among the ones I knew was Kailash Nath Kaul, Kamla Nehru’s brother. An Urdu-English raconteur, he became celebrated for setting up the Lucknow Botanical Garden. Justice Anand Narain Mulla was another Kashmiri Pandit from Lucknow.

Justice Mulla became famous for describing Indian police as the most organised band of criminals. My father who worked with him in the administration of evacuee properties would tell a most hilarious story about Mr Mulla. They were visiting Lahore and the waiter at the circuit house got him beef curry for dinner. Realising the mistake, the waiter pleaded that he was expecting an Indian mullah not a Kashmiri Mulla. “In that case I’ll accept the curry today, but don’t bring me beef ever again,” Mulla Sahib told the Pathan waiter.

I was surprised to know that Saman the letter-reading expert, who happens to be Marxist historian Prof Irfan Habib’s daughter, is doing research on malarial parasite at Lucknow’s Central Drug Research Institute. Her reading of a colonial missive should be of interest to everyone stuck with the polio vaccination programme in the hostile terrains of Pakistan’s tribal belt. The stand-off has been blamed on fanatical Muslim groups. However, when Lucknow was hit by a drought, a British administrator observed similar misgivings from the people towards English medicines, which they thought was poisonous.

An exchange of letters between Saman and her cousins in Karachi would bring tears to the eyes of anyone who knows a thing or two about Partition. The cousins hadn’t met ever but they shared many interests together with a sentimental fondness for an ancestral mansion in Lucknow’s posh Dalibagh district that has fallen on bad times.

The writer is Dawn’s correspondent in Delhi.

Published in Dawn, February 17th, 2015

Black money in Swiss banks

Wildly exaggerated numbers have been floated on the amount of black money belonging to Pakistanis lying in Swiss banks.

The claims with regard to such sums of money stashed abroad are being made a) without supporting evidence; b) without making a distinction between Pakistanis resident abroad and earning incomes there and those resident here and earning the bulk of their incomes from economic activities within the country; or c) without distinguishing between what could be white (and already declared as such for tax purposes by the person holding a deposit in a Swiss bank) or black.

Read| $200bn of Pakistan in Swiss banks: Dar

Moreover, officialdom seems to be confident that it can demand of the Swiss to hand over its money.

Unfortunately, however, tax evasion is not a crime under Swiss laws!

Wealthy individuals seek professional assistance from investment bankers to manage their funds which they transfer to accounts in foreign locations.

In today’s world money maintained in Swiss banks can be shifted swiftly to other off-shore tax and other havens and invested in other financial and non-financial assets or brought back to Pakistan to conduct a fresh round of business operations.

Also read: Dar rules out easy access to billions in Swiss banks

It is not possible to trace such money in off-shore locations. It can only be tracked down in Pakistan where the incomes which are its source have been earned.

Black income can arise from both legal and illegal activities. Money is black if it is earned from illegal activities — trade in drugs, gambling operations, smuggling and corruption/bribes. Income from hoarding scarce commodities (as opposed to speculation, although making a distinction between the two would be easier said than done), formation of cartels, tax evasion (of all forms of income, sales and excise and customs duties). The last-mentioned category could be money earned from perfectly legal activities/actions, eg tax-evaded on income from legitimate services provided by professionals such as lawyers, doctors, architects, accountants, engineers, tax advisers, etc.

Tax can be evaded on incomes through non-reporting or underreporting of income or by reporting higher expenditure through fictitious invoices/bills or by claiming private spending to be business-related expenditure. When it comes to GST the evasion can take place by either not reporting sales (simpler in the case of sales against cash) or by collecting it from the buyer/customer but not depositing it in government coffers. In the latter instance the same approach is adopted in the case of withholding taxes (deducted from purchases but not deposited). In the case of duties/taxes on imports the value of the consignment is under-declared.

Moreover, there is a general confusion about the nature of black money in the sense that it is widely perceived that the informal/unsanctioned sector somehow operates in isolation. In reality, the black and white money sectors of the economy are interlocked, at the disadvantage of the formal sector because, in our case, government systems expect it to perform the tax collection functions and ensure documentation of economic transactions recognising the administrative inability of official institutions to fulfil their mandates and responsibilities effectively. The two sectors buy and sell goods and services from, and to, each other, with black money also getting legitimate by transacting with the white economy, simply through the issuance of a formal receipt for expenditure incurred by the black sector. At times — fairly common in the case of property related transactions — a part of an otherwise legal transaction is concealed voluntarily by the transacting parties.

Much of black money is concealed by spending on foreign travel, education of children in universities abroad, investment in gold and jewellery, maintaining a luxurious lifestyle, electronic gadgetry, functions and festivals, acquiring property in Dubai, Abu Dhabi (following greater scrutiny of transactions in western countries post 9/11), etc. It is interesting that the system, as well as the country’s Constitution, legally protects, if not actively facilitates, capital outflows from the country, whether the source of the funds is white or black.

The factors that generate black money include the high rates and complexity of the taxation regime, an environment of inflation and scarcities, the character of the politico-social system and the electoral process overseen by weak election laws — large volumes of black money finance elections. There is also the manner of policy formation and its implementation, and the nature of the economic system and the mechanisms and institutional structures through which it operates (eg defective overly stringent regulations and controls).

Other factors include corruption or poor administrative capabilities that fail to prevent or check such outcomes making it relatively easy, say, to manipulate import costs or export receipts, long-winded procedures and processes that delay transactions. Black money is also generated through incentivising bribes to accelerate approvals and inadequate penalties for such transgressions. The last two enable those undertaking such activities to get away with it.

All these factors influence the size and range of processes and transactions generating black money, thereby placing limitations on the scope and quality of government policies aimed at tackling such activities.

The efforts of successive governments to check black money, especially that earned by evading taxes, through whitener schemes have failed miserably. In fact, tax laws and the desperate need for foreign exchange have resulted in rather low transaction costs through an efficient and officially protected hundi market for foreign exchange. At less than a cost of 2pc, black money can be taken out of the country and brought back into the country (no questions asked) as ‘foreign investment’ (including as portfolio investment in the country’s stock exchange) or ‘inflows reported as remittance for family maintenance’, way below the official tax rate, and become white legally for use again in business operations.

Incidentally, the State Bank’s monetary policy is also rendered ineffective by more currency in circulation, ie money outside the banks than within the banking system for the central bank to exercise control over it.

Finally, societal values have also changed. Even when it is known that someone with wealth and a fancy lifestyle has acquired it through dubious sources, there is no social opprobrium or shaming. If anything their conspicuous consumption is a status symbol and a perfect advertisement for more of such activities, especially since there are no penalties, either economic or social. Their wealth is an effective passport to respect, power and influence.

The writer is a former governor of the State Bank of Pakistan.

Published in Dawn, February 17th, 2015