TODAY'S PAPER | OCTOBER 03, 2020

Increased medicine prices

Editorial | 03 Oct 2020

THE government has been widely censured for allowing pharmaceutical companies to
increase prices of 94 life-saving drugs by up to 260pc a few days ago. The criticism isn’t
without justification. A report in this newspaper has quoted some patients as saying
that they’ve either reduced their daily dose of medicines prescribed by their physicians
or have been forced to discontinue the treatment altogether as prices shoot up, even
though the government has yet to notify the new rates. Could anything be more
disturbing than to see people stop treatment of serious ailments, even if it means
serious health complications for them and difficulties for their families? Some medical
practitioners have gone so far as to accuse the government of giving in to the
blackmailing tactics of the pharmaceutical industry. Others have questioned the
wisdom of allowing such a hefty increase, claiming that the price of raw material has
come down substantially. Still others want the government to look into allegations of
transfer pricing by the industry, which lets it move significant parts of its earnings to
principals as cost of raw material.

The government’s claim that it has allowed the price increase under the ‘hardship category’
as per the Drugs Pricing Policy of 2018 to end the shortages of several medicines in the
market (which forces patients to buy expensive imported alternatives) cannot be disputed. It
is also a fact that drug manufacturing is a business for investors; if they don’t earn good
returns on their investment they will pull their money out and invest in some other
business. However, it is the job of the policymakers to find a way to strike a balance between
the interests of the pharmaceutical industry and those in need of medication. One solution
could be to help the industry bring down its cost of doing business to hold down drug prices.
The other could be opening up the market for generic drugs in order to provide cheaper but
good-quality medicines to those from the low- and middle-income segments.

Published in Dawn, October 3rd, 2020

 TODAY'S PAPER | OCTOBER 03, 2020

Pressure on judges
Editorial | 03 Oct 2020

DISPENSING justice in this country can be a hazardous job. The challenge assumes
greater importance at a time when a large number of high-profile cases are pending in
the courts and the opposition leaders are prone to issuing frequent reminders of the
merits of having a free judiciary. Indeed, this is a matter that needs to be highlighted
and it is a positive sign that some members of the superior judiciary are willing to talk
candidly about the pressure they have had to face while hearing significant cases. The
other day, the top judge of the Islamabad High Court, Justice Athar Minallah, spoke at a
webinar about the pressures a judge is exposed to while hearing cases. In connection
with a specific case regarding a political personality, Justice Minallah described how a
man used social media to allege wrongdoing on part of the judge. It was such a
comprehensive story that “those who did not know me would have been justified in
believing” it, he asserted. In another instance, he narrated how his own wife, on
account of some unscrupulous social media operators, felt compelled to call and
confirm that the honourable judge was indeed in Cape Town where he had gone to
attend a meeting.

It is an open secret that at the lower level, the pressure on judges exists in an even cruder
form on a daily basis. Threats are routinely hurled by those who believe they have been
given the short end of the stick by the courts — in addition to the real danger that is ever-
present. Of late, the alarming trend of educated lawyers attempting to put ‘non-cooperative’
judicial officers ‘on trial’, with the scenes captured on mobile phones, has painted today’s
judges as mere shadows of the past commanding figures. Justice Minallah’s formula is
straightforward. For judges to be independent, they must be able to decide “on the basis of
facts and in accordance with the law, without any restrictions, improper influences,
inducements, pressures, threats or interference, direct or indirect from any quarter or for
any reason”. At this crucial moment in history, when sensitive questions are being asked
about institutions that are central to building the foundations of a fair and durable system
for the people of Pakistan, freeing the judiciary from threats and inducements is an essential
topic of debate. Others must join those who want to take this discussion to its logical
conclusion.

Published in Dawn, October 3rd, 2020

 TODAY'S PAPER | OCTOBER 03, 2020

Babri acquittals
Editorial | 03 Oct 2020

THE recent verdict in which a federal Indian court has absolved some of the top guns of
the ruling BJP of any involvement in the 1992 destruction of Ayodhya’s Babri Masjid is
extremely disturbing, though not unexpected. Much before the Mughal-era mosque
was brought down by a Hindu mob in a violent, vulgar display of majoritarian power,
the BJP had been calling for the mosque to be replaced by a Ram mandir. In 1992, the
Hindu far right got its wish as the mosque was soon turned to rubble as zealots razed
it, while earlier this year, Prime Minister Narendra Modi laid the foundations for the
mandir as all legal hurdles standing in its way were cleared. The latest court decision
only strengthens perceptions that under the BJP’s watch even the judiciary does not
have the resolve to call out the forces of Hindutva.

Clichéd as it may sound, the Babri Masjid demolition was actually the beginning of the end
of Indian secularism, with the Nehruvian dream replaced by the nightmarish vision of the
Sangh Parivar where all those falling outside the ideological fold — particularly Muslims —
were relegated to the margins of national life. Going back to the latest verdict, the acquittal
of L.K. Advani, Murli Manohar Joshi and other leading lights of the Sangh Parivar flies in the
face of justice. The Lucknow court said there was no conspiracy to demolish the mosque.
However, in 1990, Mr Advani had launched an infamous ‘yatra’ “to seek legitimacy for the
Mandir movement,” indicating that destruction of the masjid was very much on the
Hindutva agenda. Moreover, a former judge who had headed a commission that investigated
the Ayodhya debacle for 17 years said that there was “ample evidence” linking the
aforementioned leaders to the crime. However, facts matter little in the Sangh Parivar’s
scheme of things; brute force, distorted history and violence are the tools the shock troops of
Hindutva use to silence all opposition. Even state institutions seem to be afraid of speaking
the truth. Last year, the Indian supreme court had paved the way for a Hindutva victory
while allowing a temple to be built at the Babri site, and calling for an “alternative site” to be
given to Muslims for a mosque.

The Babri destruction was a harbinger of much darker things to come. Today’s India, where
Muslims are lynched on suspicions of consuming beef, where the community is asked to
prove its citizenship or be prepared to be disenfranchised, and where the Indian military
machine punishes the people of held Kashmir with great barbarity, is in fact a country
fashioned by those who were instrumental in bringing down the mosque. If the country
continues on this grim trajectory, very soon Muslims and other minorities may be
transformed into a permanent underclass and denied all fundamental rights.

Published in Dawn, October 3rd, 2020

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 TODAY'S PAPER | OCTOBER 03, 2020

Tactics & strategy

Sohaib R. Malik | 03 Oct 2020

The writer is an analyst.

THE country’s power sector continues to be more than eventful. Each of the numerous
policy and operational level developments from the last few months merits detailed
analyses. The one that stands out, however, is the settlement struck between the
independent power producers and the government. Moreover, the latter has nodded to
lower profit rates of state-owned power plants. Although the administration has
demonstrated its tactical strength in more ways than one, the absence of a coherent,
overarching strategy for the power sector gives rise to substantial risk of failure. If left
unmitigated, it may lead piecemeal ‘successes’ to do more harm than good to the
country’s power sector — and its economy. Let’s review some of the salient terms of the
MoUs signed between the government and IPPs.

The de-indexation of local investors’ equity returns from the US dollar for projects built
under the 2002 policy is noteworthy. Unfortunately, the government doesn’t have many
options to introduce retroactive changes in this unfair and irrational incentive offered by
the Musharraf regime in May 2007, which is arguably among the most damaging policy
decisions concerning the cost competitiveness of our power sector. Depending on how much
value the rupee loses against the dollar in the next 15 years, this arrangement can help the
ratepayer save tens of billions of rupees. It also indicates that the government has sensed the
gravity of this incentive’s destructive potential and aims to fix it sooner than later.

The government needs a plan for its

incremental successes to make a lasting
positive impact.

Secondly, there is a proposal to restructure the outstanding debt of power projects. The idea
looks good, for now — at least at face value. IPPs in Pakistan usually finance 75 to 80 per
cent of their project cost, ie capital expenditure or Capex, through bank loans which are
repaid in 10 years. Therefore, the cost of power generated during the debt-servicing period is
higher when compared with the later years of a plant’s operational life after debt capital has
been fully amortised. Generally, power projects have a debt tenor of more than 10 years in
many other countries. An extended debt-servicing period deflates the amount of regular
payment but results in higher cumulative interest charges. In other words, the borrower has
a choice to repay a 100-rupee loan either in 10 years with, let’s assume, Rs10 in interest
payments or in 20 years but with significantly higher interest charges.

Many of the 2002 policy projects have paid their debt, and the rest will do so within a few
years. The proposal to extend debt tenors beyond 10 years is most relevant to renewables
and thermal projects contracted through the policies of 2006 and 2015, respectively. The
gigantic fleet comprising mainly coal and LNG plants is estimated to devour several billion
dollars of annual capacity payments within no time. That makes the incumbents visibly
anxious about their ability to meet these contractual obligations. The extended tenor makes
sense to ease this burden and let the government get its act together in the meantime.
Without improving the structural deficiencies of the power sector, however, this
arrangement could become a successor to the ECC’s clumsy decision of May 2007.

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The several figureheads of the administration shared the ‘good news’ of Rs650bn in savings
with the nation. Since the government hasn’t published the basis on which it made its
calculations, one may reasonably expect that another presser will reveal savings of
Rs6,500bn. But these numbers are worthless unless shared with the underlying assumptions
which can be examined independently. More importantly, nobody seems interested in
informing the public that the fate of these MoUs hinges on the government’s ability to fulfil
its own undertakings. The commitment to settle IPPs’ outstanding payments, which
currently amount to several hundred billion rupees, is understood to have triggered their
apparent willingness to concede ‘lower’ returns. And that feat is easier ‘promised’ than done.

It is challenging not only because it requires the finance ministry to ‘bail out’ the power
purchaser to clear its payables, but also because the government’s earnings will take a hit as
soon as it follows through on reducing profit rates of state-owned power plants. The cut in
profit rates is an appreciable move and is advocated by this analyst. Still, it’s estimated to
cost the treasury about Rs28bn per annum, which will have consequences for the country’s
already slim finances, requiring careful considerations to produce alternate revenue
streams. The ongoing IMF programme and lower dividends may leave little wiggle room for
the country’s economic managers to liquidate their payables anytime soon. Since the MoUs
are valid only for six months, a solution has to be crafted and agreed upon between the
parties within this period. Failure to do so, for whatever reason, will leave the whole edifice
of ‘success’ crumbling.

If you were to share these concerns with senior government officials and ask if they have
thought through them, the answer, this analyst reckons, would be a resounding ‘no’.
Although an army of advisers and well-wishers is working diligently to bring about
improvements in the sector, there are several indications that they are operating in silos.
The administration’s tactical efforts can indeed yield some short-term gains, but they cannot
leave a lasting positive impact. While the government is encouraged to follow through with
its tactics, the need for an overarching strategy cannot be stressed enough. In Sun Tzu’s
words, “Strategy without tactics is the slowest route to victory. Tactics without strategy is the
noise before defeat.”

Rumour has it that someone is preparing some kind of ‘reform plan’ somewhere which will
be unveiled someday. The opacity surrounding the preparation of the so-called plan is
unfathomable and cannot be appreciated. Any such programme ought to be developed in a
consultative manner, for it will provide much-needed credibility — an oft-missing ingredient
from our various administrations’ public policy agenda. The jugaads engineered in
mysterious circumstances and deployed by the past governments only hastened the sector’s
demise. The current administration must tame the urge of quick fixes, develop a strategic
plan, and execute it by flexing its tactical muscles.

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The writer is an analyst.

Twitter: @sohaibrmalik

Published in Dawn, October 3rd, 2020

 TODAY'S PAPER | OCTOBER 03, 2020

What does Nawaz Sharif want?

Fahd Husain | 03 Oct 2020

The writer is Dawn’s resident editor in Islamabad.

HE took his time. He held his silence. He let suspense build. Now he has spoken. But
words are the outward manifestations of his thoughts. His thoughts have sculpted his
plans. His plans have begun to unfold on the ground. The ground is bracing for battle.
The battle has many fronts.

Is the other side ready?

To win, it is critically important to know your opponent’s strength and weaknesses. The
other side should acknowledge, for instance, that no one in today’s politics knows the
Pakistani system better than Nawaz Sharif. He is a product of this system and he has worked
it and governed it for more than three decades. He knows what makes this system tick. He is
aware of how the establishment works, how the politician thinks and how the bureaucracy
moves. He has a feel for the constituency and a sense of the electable; he understands the
limits of political power and the limitations of being out of it; and he knows the gains of
cooperation versus the pains of confrontation.
Situate this fact onto the post-MPC political matrix. Nawaz Sharif has taken a decision: he
will take the fight to the other side. We are now in win-lose territory. By venturing back into
this territory, Nawaz has acknowledged that he is willing to take on the odds stacked against
him. These are heavy odds. He is physically away from the battleground; his team is under
constant threat of arrests and the entire system — government, judiciary and establishment
— is arrayed against him for political, legal and other reasons. He is a wanted man and a
fugitive from law. It is, by all standards, an unequal fight.

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Nawaz is a rational player. He has chosen the path of confrontation as a rational act that
adds up despite the risks entailed. To reach this conclusion, he has weighed in multiple
factors. In fact, he has calculated all options and projected counter-options that are based on
his deep knowledge of the system. In other words, he has war-gamed the situation.

He has chosen the path of confrontation as

a rational act that adds up despite the risks
entailed.

Accordingly, he has fired the first shot. Three hard-hitting, direct and accusatory speeches
within 10 days have sent political temperatures soaring. This is unchartered territory. The
political class is aghast. How could he be so suicidal? How could he name those who cannot
be named? How could he burn all boats and bridges and yet expect to sail on them or cross
them?

But he is a rational actor and there must be some method in this ‘madness’. So he has fired
the first shot after having war-gamed the counter shot from the other side. He will then fire
his second shot and he has also war-gamed the counter shot to the second shot. He wants to
climb up the escalatory ladder because he has war-gamed that for his every move, the other
side has to retaliate with a higher calibre. Those in control must not be seen to lose an ounce
of control and to ensure this they have to assert control every time someone challenges this
control. Climbing up the escalatory ladder suits Nawaz.

So is he baiting the other side?

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The three speeches are deliberately provocative. He is poking the other side in the eye. Will
they take a swing? They could desist from doing so. But this may be seen as a sign of
weakness, or indecision, or lack of options. And if they retaliate? Arrests, cases, raids,
hearings — if all these and much more suddenly start to happen onto Nawaz’s team on the
ground, it might escalate matters, which is what Nawaz has war-gamed already. Clever.

But there’s more. What if they do not retaliate with actions but with words? After all, words
are all that Nawaz has. But there’s a problem. He is targeting those who cannot respond with
words. Did he war-game this too? If they cannot respond with words, random official
spokespeople are assigned the task. Ah! Here’s the weakness in the system. If it’s a war of
words between Nawaz and random lightweight official spokespeople, it is not a fight — it’s a
massacre.

Why? Because random official spokespeople suffer from two grievous and debilitating
weaknesses: first, they do not have the stature or the political weight or the gravitas to slug it
out with Nawaz; second, they are armed with a pre-multiparty conference narrative. Nawaz
has now shifted the goalposts but someone forgot to tell the random official spokespeople.
They are throwing punches in the air.
So what can the other side do? The other side has to first determine Nawaz’s vulnerability
and then go after that. No, it’s not Maryam. Yes sure, every father’s vulnerability is his
daughter, and in that sense she is, but in the political sense it is clear that Nawaz has war-
gamed the possibility of Maryam being arrested again. Her arrest would in fact feed into his
new narrative and charge up the base. What other option does the other side have? Nawaz’s
strength is his cause and his team. The cause is metaphysical but the team is merely physical.
Can the other side break his team? Can it shrink his parliamentary numbers through
defections? Can it wound Nawaz by depriving him of those who are fighting the fight on the
ground on his call from thousands of miles away?

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Is Nawaz’s team — not the core members but the hundreds of parliamentarians in
provincial and federal assemblies — ready to rough it out with their leader? We will know
soon enough.

War is coming. Nawaz is using his speeches as artillery bombardment to soften the
battlefield for the ground assault through jalsas and rallies. Hostilities are about to break
out.

Nawaz knows what he wants. Does the other side?

The writer is Dawn’s resident editor in Islamabad.

Twitter: @fahdhusain

Published in Dawn, October 3rd, 2020

 TODAY'S PAPER | OCTOBER 03, 2020

Parliament & courts

A.G. Noorani | 03 Oct 2020

The writer is an author and a lawyer based in Mumbai.

STATES formerly ruled by Britain adopted British constitutional law. They adopted the
judicial system by perverting rules and practices governing British appointments. This
is most apparent in the relations between parliament and the courts and the scope of
parliamentary privileges.

In India, parliamentary privileges are abused to punish the press and stifle dissent. Nowhere
is this more apparent than sub judice rule. Indira Gandhi imposed president’s rule in several
states as soon as she returned to power. Petitions were filed in court. In chair in the Rajya
Sabha was a former chief justice of India, M. Hidayatullah, who knew which way the wind
was blowing. Astonishingly, he ruled that the matter was now sub judice and could not be
discussed in parliament.

The courts decide on legality; parliament decides on the political correctness of the decision
on the wisdom and expediency of the act. The discretion belongs to the speaker. In India, he
is chosen by the party in power.
A distinguished authority on constitutional law, Prof S.A. de Smith, holds that the sub judice
rule has “been narrowed to enable the speaker to admit questions in his discretion though
they relate to matters pending adjudication in a civil court, if the issue raised concerns a
matter of national importance or the exercise of a minister’s discretion challengeable only
on narrow grounds before the court”.

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Parliamentary privileges are abused to stifle

dissent.

The 1972 resolution of the House of Commons added that “in exercising its discretion the
chair should not allow reference to such matters if it appears that there is a real and
substantial danger of prejudice to the proceedings”. This is the very test applied in cases of
contempt of court — “a real and substantial danger of prejudice to the court proceedings”.
The speaker can even waive the sub judice rule altogether as the speaker of the House of
Commons did on July 22, 1977.

In the Sunday Times case, Lord Diplock said that “discussion, however strongly expressed,
on matters of general public interest of this kind is not to be stifled merely because there is
litigation pending arising out of particular facts to which general principles discussed would
be applicable. If the arousing of public opinion by this kind of discussion has the indirect
effect of bringing pressure to bear upon a particular litigant… this must be borne because of
the greater public interest in upholding freedom of discussion on matters of general public
concern”.
This right of free discussion belongs to the Indian citizen in law. It would be an anachronism
if the members of the Rajya Sabha enjoyed less freedom. But that would be the inevitable
result of Mr Hidayatullah’s ruling. A matter of national concern arises. The government is
accused of abusing an emergency provision in the constitution (Article 356). But the house is
forbidden to discuss it because the legality of the executive’s action is in issue before the
high courts. Let alone the legal aspects, even those concerning its propriety or political
soundness may not be discussed at all.

Referring to the sub judice rule the speaker of the House of Commons remarked on July 29,
1976, that he intended to exercise his discretion in favour of freer debate in every case
where he properly could.

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India’s constitution imposes limits on parliament, state legislatures and the courts in regard
to discussion of each other’s conduct. Articles 211 and 212 read: “No discussion shall take
place in the legislature of a state with respect to the conduct of any judge of the supreme
court or of a high court in the discharge of his duties. The validity of any proceedings in the
legislature of a state shall not be called in question on the ground of any alleged irregularity
of procedure.”

What if a judge uses intemperate language or takes manifestly partisan cases? Is parliament
limited to the impractical and cumbersome process of his impeachment?

The classic case is that of Jalianwala Bagh so well brought out by a jurist: “When it is
relevant to the issue under adjudication, a judge may comment on the activities or omissions
of government departments or the police, provided that it is done in a dignified manner.
Judges, however, do not comment on the wisdom of the policy of the government or on
matters which are not relevant to the case before them. Naturally, judges are cautious in
their comments on controversial matters….”

In 1924, justice McCardie heard a libel action brought by Sir Michael O’Dwyer, lieutenant
governor of Punjab, regarding atrocities committed by his administration. These included
orders by Gen Reginald Dwyer to open fire at a mob during disturbances in India. McCardie
said: “…I express my view that General Dyer in the grave and exceptional circumstances,
acted rightly, and… was wrongly punished….” It surely called for censure by parliament.

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The solution lies in mutual respect and restraint.

The writer is an author and a lawyer based in Mumbai.

Published in Dawn, October 3rd, 2020

 TODAY'S PAPER | OCTOBER 03, 2020

Mea culpa
Irfan Husain | 03 Oct 2020

irfan.husain@gmail.com

CAN the quality of an article be measured by emails, ‘tweets’ and ‘likes’? I ask because I
have been observing a correlation between the two ever since Dawn began publishing
comments after columns, and I went on Twitter.

Now, I note that most of my articles about domestic, regional and global politics draw scores
— sometimes well over a hundred — of comments. Many are critical, but I get my share of
fan mail, too. I say this not boastfully, but as matter of fact. I do my best to engage with those
who send me emails, even if briefly.

In this category falls a clarification from Ms Salima Hashmi, an old friend from Lahore. A
few days ago, she objected to a column (‘The missing Shemzas’) that was published here last
Saturday. My point, based on correspondence I had seen on social media, was that the
Pakistan National Council of the Arts had returned the 10 paintings gifted to the permanent
collection by A.J. Shemza’s widow way back in 1985.
The insinuation here, based on a TV interview with ex-DG PNCA Jamal Shah, was that Mrs
Shemza had demanded that her ‘gift’ be returned because the prices of Shemza’s wonderful
paintings had shot up in the UK. Mrs Shemza had always claimed that the works were a loan,
and not a gift.

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It appears from PNCA’s internal documents

that the paintings were a loan.

Finally, after years of chasing her claim with an unresponsive art bureaucracy, she wrote to
the prime minister who passed on the desperate request to Shafqat Mahmood, the federal
minister for education and the arts. Wanting to get the government’s version, I sent him an
email for details. Shafqat, also an old friend, complied immediately.

It appears from PNCA’s internal documents that Mrs Shemza had indeed loaned Shemza’s
works to the permanent collection. This was clearly established by a letter from Ghulam
Rasul, also ex-DG PNCA, and now deceased, offering to buy all 10 paintings from Mrs Shemza
for the princely sum of Rs40,000. However, as she wanted to be paid in pounds, the deal
didn’t go through. Obviously, she was the owner of the paintings, otherwise why would
Ghulam Rasul offer to buy them?

From all this, it is clear that I was wrong on several points in my last column, and apologies
are due to Mrs Shemza, Ms Salima Hashmi and Mr Shafqat Mahmood. But my basic
argument in the column was that works of arts and invaluable items reflecting our rich
cultural heritage continue making their way abroad with few controls imposed by this or
past governments.
Other countries have pursued their works of arts and relics from the past with passionate
zeal. Colonial nations have been thrown on the defensive, and a debate is now taking place
about the rightful place for these objects. The ancient Greek Parthenon Marbles are a case in
point.

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These strikingly elegant carvings were stripped from the Parthenon by the seventh earl of
Elgin with the ‘permission’ of the Ottoman ruler of the day, and taken to London where they
have been displayed at the British Museum for over a century. Parliament approved the
purchase of these works for £35,000, a vast fortune for those days. For decades now, a
succession of Greek leaders have been demanding their return; so much so that one side of
the newly constructed Parthenon has been allocated to the marbles. Thus far, Britain has
clung on to them.

African states and Australian aborigines have been equally vocal in claiming their artistic
and religious heritage. Some have been successful as there’s a growing conscience among ex-
colonial powers that they occupy the moral low ground on these issues.

However, let me inject a small caveat here. We in Pakistan have not been exactly vigilant in
safeguarding our cultural heritage. Hundreds of priceless Gandhara pieces grace private
collections as well public museums abroad. At least in the latter, they can be learned from
and admired. In fact, many of these works are despised at best, and destroyed at worst, in
Pakistan by the growing numbers of fanatics we are breeding like rabbits.

In India, Mughal artefacts are being airbrushed out of history at an alarming rate as Hindu
nationalism seeks to erase the role the Muslims played in the evolution of India. Clearly,
history is being weaponised to an unprecedented degree across the border.
 ARTICLE CONTINUES AFTER AD

At least important antiquities from India and Pakistan can be viewed by an international
audience in London, New York, Paris and Tokyo. In Pakistan, our religious zeal makes
teaching our Hindu and Buddhist past to schoolchildren anathema. They grow up believing
that we were always a Muslim nation, and that other faiths were temporary aberrations.

Until these attitudes change and our kids are taught a more honest version of our past,
Buddhist rock carvings in the north will continue to be defaced, and Hindu statues in Sindh
will go on facing destruction.

Teaching art at school would also help.

irfan.husain@gmail.com

Published in Dawn, October 3rd, 2020