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DAWN NEWS
13-04-2020

Need to restrict
EditorialApril 13, 2020
WITH more than 1.5m people infected and upwards of 100,000
dead, the spread of the deadly coronavirus shows little sign of
slowing down across the world. Italy, Spain and the United States
remain the most affected countries, even as the infection spreads
to all corners of the planet. The projections are ominous and the
worst may be yet to come. In this grim scenario, countries can do
little more than try to ‘flatten the curve’ while scientists rush to
find a vaccine. Even though testing on humans has started, experts
say the actual vaccine that will be approved for usage may still be 12
to 18 months away. For Pakistan, this is a huge challenge. Prime
Minister Imran Khan has started saying that our health system may
come under tremendous stress by the end of the month. The pace
of the spread of the infection has picked up dramatically and will
likely reach tens of thousands within the next few weeks. The
government may have belatedly got its act together, but despite all
our best efforts to acquire equipment and beef up our health
facilities, there is very little chance that we will be able to cope with
the pressure of patients.

The only option we have, as do all other countries, is to maintain strict

lockdowns and try to suppress the spread of the virus. However, recent
announcements seem to suggest a certain laxity in restrictions. The Punjab
government has announced the opening of some businesses, while the prime
minister has already declared the construction industry will restart its
activities shortly. The federal government has also said limited flight
operations will resume soon and Pakistanis stranded abroad will be brought
back home. These are all noble intentions and they point towards a need to get
the economy going, but they run the risk of diluting the impact of the
lockdowns. These steps also suggest a certain lack of clarity within the
government, as it vacillates between lockdowns and economic activity. This is
a difficult decision, but given the choice, it really is not. By diluting lockdowns,
we will only be delaying the inevitable in terms of re-clamping restrictions and
hastening it by triggering the spread of the virus.

The key priority at this stage is to slow down the pace of infections by every
means possible in order to better prepare for the deluge. By giving in to the
pressures of the economy — and there is no denying the reality of these
pressures — the government is avoiding the hard choices that need to be
made. It would be far better to make a clear plan around lockdowns for a
limited period and strictly enforce it while speeding up relief to the weaker
sections of society through the Ehsaas programme. Dithering will serve no
purpose other than worsening an already bad situation.

Published in Dawn, April 13th, 2020

Data protection
EditorialApril 13, 2020
THE Ministry of Information Technology and Telecommunication last week published a
draft of a personal data protection bill, with an invitation to stakeholders for feedback.
With a May 15 deadline, the ministry maintained that the privacy of personal data of an
individual has become “more relevant and important than ever” at a time when digital
measures such as mobile phone tracking are being employed to contain the virus. While the
government’s effort to move forward on data protection is encouraging, it has been a long
time coming. A similar attempt was made during the PML-N tenure, but it did not yield
results. In the absence of such legislation, and as internet and telecom penetration increase
in Pakistan, citizens have been victims of privacy breaches and data leaks at the hands of
companies, individuals and the state, without any repercussions.

There is no doubt that there is an urgent need for citizens to have legal protections for their data.
The phrase ‘data is the new oil’ aptly describes how companies mine personal data to build and
profit from profiles. In this respect, the current draft bill aims to govern the collection and
processing of data and criminalise violations of privacy and data leaks. Yet, it is not very clear
whether this scrutiny will apply to the state, which arguably controls the largest amount of
citizen data — and has been accused of breaches. From Nadra to FBR to ECP, the state holds a
wide range of private citizens’ information, including home addresses, biometric and electoral
data, as well as information of ethnicity and religious beliefs. Given these large-scale data-
gathering functions, the exemption given to the federal government under Section 31 is alarming,
as it empowers the state to grant exemptions to “any data controller”. Furthermore, Section 38
stipulates that employees of the data protection authority will be public servants, giving rise to
apprehensions that the legislation will not hold authorities accountable. Rights groups have
correctly demanded a more independent and transparent decision-making process. They have
also made a legitimate request for more time to critically examine the draft. The government
must invite and accept the feedback given by these stakeholders with sincerity. Anything short of
this would render this legislation a lip-service exercise rushed through to placate social media
companies which the government is so eager to invite to Pakistan. The intention behind the
legislation should be to protect the citizen, not just serve the interests of the state.

Published in Dawn, April 13th, 2020

Mental health in jails

EditorialApril 13, 2020
THE mind can be a prison for anyone afflicted with a mental health disorder. But for the
countless mentally ill prisoners languishing in Pakistani jails, there is little to no treatment
or respite from their ailments. Indeed, the harsh conditions within the prison confines
exacerbates underlying illnesses, as many are thrown into these overcrowded spaces that
lack natural sunlight and air, and privacy, and are often subjected to violent and volatile
behaviour. There is also evidence of drugs being used within prisons, and torture used as a
method to subjugate or exhaust inmates into compliance. Those prisoners who are placed
in tiny isolation cells are perhaps the most vulnerable of all, lacking any human connection
or understanding. While these prisoners should be receiving treatment, they are instead
weighed down by the twin stigma of being both mentally unwell and a prisoner, and are
thus condemned by society for being ‘deserving’ of their suffering — regardless of whether
or not they are indeed guilty of their crime beyond reasonable doubt.

On Saturday, for instance, a report in this paper detailed the tragic tale of Kanizan Bibi, who was
thrown into prison around 30 years ago, when she was just a teenager, for the murder of six
individuals. She had been accused of being an accomplice in the murder of her employee’s wife
and children, and was charged under Section 302/304 of the Pakistan Penal Code. Later, she was
handed the death sentence, along with her employer, who was hanged to death in 2003. Despite
being declared schizophrenic, and her death sentence being halted in a presidential stay, Kanizan
Bibi is not a free woman and the noose still hangs around her neck. Last year, the mentally
unwell prisoner Khizar Hayat breathed his last in a hospital, after suffering for 16 years in
confinement. In his final days, Khizar was a shadow of his former self, suffering from
hypertension and anaemia. May no one else be subjected to such a dreadful fate.

Published in Dawn, April 13th, 2020

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Leading in a pandemic crisis
Maleeha LodhiApril 13, 2020

The writer is a former ambassador to the US, UK and UN.

NO government in the world had a primer to deal with the unprecedented pandemic which
plunged countries into unmapped territory. However, several months into the global health
emergency, lessons have emerged from across the world to show what worked to mitigate
and contain Covid-19 — and what did not. It is never too late for a government to change
course even in the midst of an uncharted and evolving crisis, especially as more evidence
emerges about how best to tackle it.

By now, the most obvious and instructive lesson is that it is “rapid, decisive and collective action
that can prevent the spread” — as an influential report from London’s Imperial College put it.

And this advice from the World Health Organisation remains imperative to fight the virus:
“Countries must continue to find, test, isolate and treat every case and trace every contact”. And
“If countries rush to lift restrictions too quickly, the virus could resurge and the economic impact
could be even more severe and prolonged”.

Informed by this perspective, the prime minister might consider taking the following five steps:
1) send clear, coherent and consistent messages to the public; 2) act decisively; 3) lead a unified,
multilayered, national effort with close coordination with all provinces; 4) stay a firm course on
social distancing; and above all 5) be guided by the evolving medical science on the pandemic by
giving a lead role to medical specialists who understand this, not generalist bureaucrats.

Like other countries, Pakistan is navigating a crisis that will test

its leadership.
Why urge these steps? To answer this, consider what has happened so far. First, on messaging,
the early weeks saw mixed signals, which did not convey the urgency or severity of the
unfolding threat. Public communication veered between saying this was little more than a flu
virus that would afflict the elderly to asserting that the virus had not hit the country as hard as
other nations. If the aim was to calm and not panic the public, the (unintended) result was to
underplay the threat when people needed to be persuaded to stay home to prevent the virus from
spreading.

As the number of cases rose, the prime minister’s tone changed. But procrastination over
measures aimed at social distancing continued to send conflicting messages. Getting mired in a
prolonged public argument about lockdown vs no lockdown conveyed an impression of
indecisiveness.

That brings up the second step — act decisively. If, as government leaders claim, they first
“reviewed” the looming threat in mid-January, how did they act on this? How was an under-
resourced healthcare system enabled to deal with the remorseless onset of cases? Did “rapid,
decisive action” follow after the first infection was confirmed on Feb 26?

Missteps exacerbated the situation. Much has already been said about how zaireen (pilgrims)
returning from Iran through the border crossing at Taftan were managed and cluster allowed into
the mainland, which accelerated the spread of the virus. According to the latest official figures,
over 30 per cent of current Covid-19 cases in Pakistan came via this route.

The centre’s unwillingness to move early to suspend air travel and restrict religious
congregations had a similar deleterious effect, with scores of tableeghi members spreading the
virus across Punjab and beyond. Official figures show almost 20pc of confirmed cases in the
country today can be traced to the latter. Another 24pc have been tracked to people travelling
back from countries other than Iran.

The federal government also did not take the lead on a lockdown, with officials debating its
economic fallout rather than act. True, governments across the world struggled to find a balance
between restrictive measures and economic activity. But as many international experts have
pointed out, this is a false choice, because saving lives is necessary to save livelihoods. While the
government’s economic packages and enhanced Ehsaas handouts are welcome steps to mitigate
the economic fallout, the perpetual focus on this has fed the perception that the crisis is not being
viewed through the prism of a public health emergency, but its economic repercussions.

While the federal government vacillated, the Sindh government led the way and implemented a
lockdown, obliging Punjab to follow suit. Its effective communication campaign also offered a
contrast to the media strategy pursued by Islamabad.
The third step is centre-province coordination. This was found wanting weeks into the crisis. The
prime minister’s reluctance to reach out and consult provincial leaderships, especially of Sindh,
prevented a unified policy from emerging. Provinces went their own way until a National
Coordination Committee and a Command and Operations Centre were established in mid-March
and early April respectively. But provincial approaches — for example, on a lockdown — are
still not harmonised. This prompted a Supreme Court judge to urge the centre during a recent
hearing to improve coordination with provincial governments.

Four, as the federal government mulls relaxing restrictions on economic activity, it remains
important to meet clearly articulated health milestones, especially enhanced testing capability,
before easing the lockdown. According to the government’s own projections, infections may
reach 70,000 by end-April, as reportedly revealed to a cabinet meeting last week. If this
projection is based on an assumption about a degree of compliance with social distancing, then
that estimate can change if restrictions are relaxed early.

Last but not least, the determination of when to ease restrictions should be made on the advice of
health professionals. Their counsel should guide the overall policy response to Covid-19. They
should be represented in the top policy bodies established to address the crisis, not just subsidiary
committees. Membership of these bodies should be dictated by the nature of the crisis, not
ministerial status. Expertise is needed to interpret the evolving response of the global medical
community. This critical gap should be filled as the NDMA is designed to deal with natural
disasters and other aspects of the ongoing crisis, not a health emergency.

Like other countries, Pakistan has to navigate a crisis that will test its leadership. The prime
minister has used the metaphor of war to describe the challenge of fighting Covid-19. He has a
chance to emerge as an effective ‘wartime’ chief executive. Now is the time for him to live up to
that challenge.

The writer is a former ambassador to the US, UK and UN.

Published in Dawn, April 13th, 2020

Where are the experts?

Anjum AltafApril 13, 2020
The writer was dean of the school of humanities and social sciences at Lums.
HOW one wishes there was a team of competent modellers in Pakistan who could present
the worst-case (do-nothing) scenario, the most likely response given the existing state of
affairs, and the best-case outcome if appropriate measures were put in place.

I say this after the model run by London’s Imperial College became decisive in drastically
changing public policy in the UK. Unfortunately, it is not the case, one to which we are addicted,
that a foreign model can be imported and run here to determine our choice of public policies.
Too many parameters are different and would need to be normalised to our circumstances.

Take the most obvious one first. The degree of compliance with directives is much lower here
than in the UK — I walked past a padlocked park where the ground staff were huddled together
under one canopy sharing a cigarette. Citizens do not trust the government for any number of
reasons. If asked to be tested, their first tendency is to run as far away as possible for fear of what
might be done to them. This trust deficit now runs so deep in our society that no one takes
anything at face value. Add to that the many who consider themselves answerable to an authority
higher than that of the state and wish to pray together at any cost.

The age pyramids of the two populations are entirely dissimilar, making a huge difference in
expected mortality risks. Then there is the specificity of the labour force. There are virtually no
footloose workers in London; there were many migrants in Wuhan, but they were adequately
housed and in no need to flee home — in any case, they would not dare disobey state directives.
Here, millions work in cities, while their families are in villages. Many literally sleep on the
streets. How they would respond is apparent from what happened in India, something
policymakers were either oblivious to or not bothered about.

We are not even clear about the primary objective of our policy.
Given all such unique conditions, what does a lockdown, which can be leaky, yield? What does
social distancing mean when two-thirds of the urban population lives in houses with six to eight
persons per room? How does personal hygiene work when there are people who cannot afford
soap and do not have access to more than two cans of clean water? The modellers would have to
cater to all these peculiarities before they could give us any sense of what to expect in Pakistan.

In addition, it is just not enough to run a model once. It needs continuous recalibration based on
cumulative data. Is April really going to be the cruellest month — Italy with a lag — or is
something actually going on that is different, with infections, however flawed their
measurement, growing exponentially, while deaths, much harder to hide, showing a flatter trend?

Right now, we are not even clear about the primary objective of our policy. Is it to minimise the
number of deaths at any cost — in which case, a model made by epidemiologists, virologists and
behavioral scientists might be enough? Or is it to minimise the number of deaths at least cost, in
which case, public health models need to be complemented by ones that match each scenario
with estimates of the accompanying socioeconomic impact?

This trade-off is not as simple as it seems because of complex interrelationships — saving the
old from infection can mean sacrificing the young to starvation. We have heard from the
government that 25 per cent of households cannot afford two full meals a day. There are
certainly just as many who can barely achieve that luxury, which immediately raises the
question: how long can a lockdown be sustained in these circumstances before more people die
from lack of food than from an infection? Already, there are reports of societal fracture with
people pushed to begging and stealing.

Once again, this suggests that a Wuhan-type lockdown, no matter how desirable, might not be
the affordable choice for Lahore or Delhi, and better adapted solutions might be called for. Given
that, unlike the flu, corona infections are concentrated in clusters, the experts might suggest
selective lockdowns of hotspots like Raiwind and Bara Kahu. The at-risk elderly might, on
request, be protected in empty hostels, instead of crippling mobility across entire cities. To
mitigate the incremental risk, the experts might stress universal use, through free distribution, of
masks whose production can generate employment while being decentralised.

In any case, a lockdown is not a solution because the virus does not disappear. It only buys time
in which other necessary measures need to be put in place. If they are not, the virus would spread
again once the lockdown is relaxed and probably wreak worse havoc on a desperately stressed
and famished population with depleted resistance. These other measures include extensive free
testing, identifying hotspots, rigorous tracking, isolation, and quarantine. Experts in GPS
techniques and information retrieval could help in guiding these tasks.
This is a truly unique situation in which no one really has all the answers. The last thing we need
is for everyone to turn into an expert and start doing what appeals to their guts. Like gynaecology
or oncology — in which no one would allow laypersons to interfere — public health and systems
analysis also have their own specialists. We owe it to the people to get the best scientific advice
possible and tackle this crisis in a way that makes sense in our country.

There is no reason that local institutions with relevant expertise, like AKUH, Lums, ITU and
Nust, cannot put a team of experts together — not just for this emergency, but for the continuous
surveillance of all infectious diseases. And there are many that still plague this country.

The huge number of preventable deaths in Pakistan at which no one bats an eyelid is a damning
disgrace for which our governments are accountable. The ongoing tragedy should sensitise us
that we cannot sustain much-needed lockdowns because of the conditions in which the majority
is condemned to live. The injustice cannot be tolerated any longer.

The writer was dean of the school of humanities and social sciences at Lums.

Published in Dawn, April 13th, 2020

Corona & contracts

Basil Nabi MalikApril 13, 2020
The writer is a lawyer.
THE current pandemic has exposed the Pakistani economy to one of its greatest challenges
in recent times. As various businesses calm their nerves and begin to pick up the pieces of
what remains of their respective operations, big issues relating to what is next and how to
restart activities are looming.

In the coming days, issues in relation to contract performance will be in focus. In other words,
businesses will be looking at their options of how to get out of costly contracts. As the length and
severity of the lockdown increases, the commitment of every business to fulfil its pending
contractual obligations will be tested.

Several questions will inevitably arise. Would an economic downturn in and of itself be
sufficient to exempt or excuse oneself from fulfilling commercial commitments? If the current
situation has resulted in a lack of cash liquidity, would that be enough to show impossibility of
performance? If not, then what if the pandemic has made a commercial transaction financially
unfeasible? If nothing else, how about in a situation in which carrying out the contractual
obligation would have the effect of putting the company out of business?

All these questions are extremely pertinent to the times, and in order to answer them, a look at
the contract in and of itself would be very important. In Pakistan, as well as in other common law
jurisdictions, complex and high-stake contracts tend to contain what one calls a ‘force majeure’
clause. In simple words, the clause is inserted to safeguard against unforeseen events which are
beyond the control of the parties in question. It earmarks specific events, which if resulting in
non-performance, shall cause the latter to be excused or pardoned.

What does the pandemic mean for businesses?

These clauses are interpreted keeping in mind a variety of factors, including the language and
phrasing of the clause, the nature of the non-performance, as well the link between the force
majeure event and the non-performance in question. However, unless specifically catered for in
the clause itself, generally, such clauses do not include financial difficulties or an economic
downturn per se as a reason or excuse not to perform. In fact, such clauses are read narrowly and
conservatively, so as to save the contract, as opposed to rendering it futile.

For example, in situations where intense and absolutely unforeseen price hikes or fluctuations
have rendered a contractual obligation unfeasible, or ‘commercially impossible’, courts have
often been seen to consider such an issue as falling outside the purview of such clauses,
specifically because the commercial viability of a contractual obligation relates more closely to
commercial inconvenience than to legal or physical impossibility.

Hence, in essence, even if the pandemic has resulted in a situation in which a business is unable
to make payments to a vendor, whether in light of a disruption in revenue, or just on account of
the strain on one’s working capital needs, this factor alone may not be sufficient for invoking
force majeure.

This is not to say that no situation whatsoever would be covered by such clauses. Although the
clause is often narrowly construed, it is possible that the present lockdown may provide grounds
for its being invoked.

For example, if in light of the lockdown, the closure of offices and ban on movement, parties are
physically unable to render certain payments due under a contract, as such performance would be
‘physically impossible’, then it is conceivable that such circumstances may give rise to a valid
invocation of the clause in question. However, as noted, multiple factors would be considered.

Alternatively, where a force majeure clause does not figure in a contract, the parties may attempt
to claim that the contract has been frustrated, and is therefore liable to be terminated, on account
of an impossibility in performance. However, even in such a case, the test remains stringent, and
amongst other things, physical and legal impossibility, as opposed to commercial impossibility,
would have to be shown for the defence to have any teeth.

All in all, the lifting of the lockdown and easing of the pandemic concern after an extensive
period of time, although welcome, would not be a panacea to the business community’s
problems. Quite to the contrary, at the other end of the ordeal loom issues of contractual breaches
and systemic defaults. In relation to such matters, and in order to protect itself, the community
would have to think ahead and prepare its contingencies accordingly. If it fails to do so, the
consequences would not bode well for the country at large.

The writer is a lawyer.

Permanent plague
Zarrar KhuhroApril 13, 2020

The writer is a journalist.

IN every crisis is opportunity, and unprecedented crises like the coronavirus pandemic
offer unprecedented opportunities. For the fascists, dictators and wannabe-fascist dictators
of the world, it provides the chance to keep doing what they were doing anyway, but with
greater speed and in the knowledge that — with the world distracted — their actions will
not even get the nominal outrage they usually would. Essentially, the virus is acting as an
accelerant for authoritarianism.

Take Hungary’s demagogue Viktor Orban who has used the opportunity to demolish what
remained of Hungary’s democratic façade by weaponising the virus, or rather weaponising the
fear caused by the virus, to grab power in a most ruthless way. Standing before a parliament that
he controls two-thirds of, Orban gave himself unlimited powers to rule by decree — with no
expiration date or oversight — all in the name of protecting Hungary from Covid-19.

Suspending all elections and referendums, Orban now has the power to jail anyone he likes for
up to five years if they publicise any ‘falsehood’ about the government’s efforts to combat the
virus. Naturally, it is Orban himself who will decide what that falsehood is. And, of course, since
it is Orban who will himself decide when the crisis is over and these new powers are no longer
needed, the smart money is on the bet that the crisis will never end.

It is going the same way in the Philippines, where the already trigger-happy Rodrigo Duterte,
who famously called his country’s constitution “a scrap of paper” (honk if that sounds familiar),
has also been given unlimited emergency powers to rule as he sees fit. Given his track record of
jailing critics and harassing journalists well before anyone had ever heard of Covid-19, one can
imagine how he will act with these sweeping new powers, when he was already abusing his
existing powers.

Surveillance is rarely scaled back.

But here is the catch: on the face of it, authoritarianism seems to work, as it did in China where
entire cities were shut down, severe restrictions were placed on the lives and movements of
citizens and a pervasive surveillance system was repurposed to aid coronavirus containment
efforts. So what is wrong with that, if it serves the burning need of our times?

The problem will lie in the future, because once accelerated, this sort of all-encompassing
surveillance is rarely, if ever, scaled back. Now, facial recognition systems in China, thanks to
the demands placed on them, are capable of identifying people, even if they are wearing masks,
something that should come in very handy next time there are protests in Hong Kong, for
example. And countries that always wanted a similar system of their own, or just have not found
a way to sell it to their public, have found the perfect opportunity.

In Moscow, facial recognition systems are now in place, and QR codes may be issued to those
with permission to move around. Mobile phone signal tracing provides another way to keep taps
on citizens. Again, while all this is certainly needed to combat Covid-19, the smart money says it
will be used to control political dissent long after the virus has come and gone.

And for the hatemongers of the world, it has not taken long to repurpose the fear about the virus
into a tool to lay the groundwork for ethnic and religious ‘cleansing’ and propaganda against
previously selected targets.

Take the ever-present example of India, where infections among the Tableeghi Jamaat provided
a wonderful opportunity for most of the mainstream media, already chomping at the bit at the
chance to inflame tensions and demonise Muslims, to launch a full campaign while ignoring
other epicentres of infection. On social media, millions of Sangh supporters are once again
weaponising fake news and old videos and pictures taken out of context to push the lie that
Muslims are deliberately spreading coronavirus in India.

The fake news has real effects, and there are increasing reports of Muslims being attacked and
hounded out of neighborhoods and villages as suspected carriers of coronavirus. So, it is business
as usual, except with a greater impetus than before. Naturally, Pakistan is also on the target list
with Times Now running an ‘expose’ claiming that we are sending infected persons to India via
Nepal in what they are labelling a ‘bio-terror plot.’ This sounds funny until you realise that there
are jokers who actually believe this and act accordingly.
As for the rising tide of fascism, there is more bad news on the horizon with warnings of a global
recession the likes of which we have not seen since the Great Depression — the one that led to
the rise of groups and ideologies that took a world war to contain. It is not all bad news, of
course, and the response of countries like New Zealand offer some hope against the dying of the
light, but these examples are few and far between. By and large, we should expect more of the
same as we have already been seeing, but faster.