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Should state institutions be subject to public criticism?



Institutions must keep their eyes and ears open to any and all public criticism and develop their own checks to determine which criticism warrants consideration.

On May 24, earlier this year, in response to protests outside the Supreme Court premises in Islamabad, during the pendency of a review petition filed by the Election Commission of Pakistan (ECP), Chief Justice Umar Ata Bandial told AGP Mansoor Usman Awan to ask the Pakistan Democratic Movement (PDM) coalition to restrain from criticising the court. PDM leaders had staged a sit-in outside the SC, accusing it of granting unprecedented relief to Imran Khan.

This incident was reminiscent of similar public uproar that had erupted against the United States Supreme Court after the draft of Justice Samuel Alito’s opinion in Dobbs vs Jackson Women’s Health Organisation had leaked in May, last year. A week after the leak, Justice Alito was scheduled to speak at George Mason University in Virginia, but protests and ensuing security issues forced him to deliver the speech via video link, from inside the US Supreme Court building.

In an interview given to the Wall Street Journal later, Justice Alito explained that public demonstrations were only just the tip of a concerted campaign devised to prevent the leaked draft from becoming the court’s decision.

The campaign included unlawful assemblies outside justices’ homes and death threats against those justices who were suspected to form part of the majority in the Dobbs decision. According to Justice Alito, excessive criticism has only served to question the legitimacy of the US Supreme Court. It represented bad faith efforts and failed to identify tangible problems that needed to be resolved.

These episodes bring to mind four interrelated issues: (i) Can criticism be categorised into good and bad (ii) Is criticism against state institutions ever justified (iii) Should institutions be responsive to public criticism and (iv) Does criticism play an important role in regulating state institutions.

The answer to all these questions, as will be elaborated in this article, is ‘absolutely’.

series of lectures delivered in 1983, philosopher Michel Foucault explained the meaning and evolution of the word.

Under parrhesia, the speaker says everything that is on their mind. Parrhesiastes do not hide anything. They open their heart and mind to other people through discourse.

While parrhesia is the opinion of the speaker, Foucault believes that as the speech is unadulterated and authentic, parrhesiastes say what is actually true and not just what the speaker believes to be true. However, there is one important qualification given by Foucault before speech can be categorised as parrhesia.

According to Foucault, parrhesiastes put themselves in danger because there is a power imbalance between the subject and the object of criticism. For example, philosophers who addressed sovereigns of ancient civilisations and criticised their policies as tyrannical and unjust took a grave risk. The tyrant may have punished, exiled, or even killed the philosopher for speaking out.

But it does not always have to be a risk to life. People who see their friends doing something wrong and choose to reprimand them for it are also using parrhesia as they risk losing their friendship. According to Foucault, courage in the face of personal risk creates parrhesia, and such criticism merits consideration as it is the truth.

Parrhesia, therefore, is the standard by which all criticism should be judged. And when viewed from this angle, bifurcating good and bad criticism becomes easier. In modern society, criticism directed at public figures from individuals hiding behind the veil of social media anonymity is not parrhesia.

To go back to our earlier example, anonymous death threats directed at Justice Alito and other judges forming the majority in the Dobbs case is not parrhesia as the mail is unlikely to be traced back to the senders. It is axe-grinding at best. However, social activists raising their voice for religious minorities in a hyper-religious nation risk majoritarian persecution. So, they are using parrhesia and such criticism deserves to be heard, properly considered, and given due importance in society by policy makers and stakeholders.

Naturally, this leaves considerable room for grey areas, which requires a case-by-case analysis. Does the sit-in staged outside the SC in Islamabad qualify as parrhesia?

Protesters present at the sit-in were PDM leaders. Others gathered had done so at the behest of those leaders. Law enforcement agencies would in no circumstances have acted against the protesters, as the PDM was in power at the time. The establishment, being on the ‘same page’ as the governing coalition, had most likely given the green light. Meanwhile, the SC would have never used its contempt powers against the protesters, as they were already under considerable pressure to prove they were not favouring one side over the other.

The protesters faced no risk and, hence, were not using parrhesia. Their protest can at best be seen as a pressure tactic against a state institution to get favourable outcomes.

said that the PPP and PML-N were opposing fresh elections because they wanted to “appoint an army chief of their choice”, and that the two parties were afraid that “if a strong and patriotic army chief is appointed then he would ask them about the looted wealth”.

The comments created wide-scale public uproar. The Inter-Services Public Relations (ISPR) issued a statement, saying they were “aghast at the defamatory and uncalled for” remarks about the army’s senior leadership. PDM leaders slammed Imran for levelling “poisonous allegations” and “putting blots” on the new army chief’s appointment. Political differences aside, was this criticism against a state institution justified?

Democracy is based on the trichotomy of powers. The executive, legislature, and judiciary are expected to remain within their constitutional bounds. Any institution that performs functions within the public domain should be open to public criticism, because good governance is impossible without accountability. So let us consider two scenarios here.

In the first instance, an institution remains within its constitutional limits but performs its legally mandated duties poorly. It also fails to uphold the democratic ideals of a just and equitable system, rule of law, and constitutional liberalism. Criticism against such state institutions is completely valid.

In a private establishment, poor performance will be noticed, and your superior will speak to you about it. Persistent bad performance may be grounds for termination. If private sector employees are expected to adhere to, and maintain employment standards, why should state institutions be given a free pass?

In the second instance, state institutions exceed their constitutional limits, and perform functions that are not theirs to perform. The Pakistan Army has done this repeatedly throughout our chequered history — this much has been acknowledged by former army chief retried Gen Qamar Javed Bajwa. It is also public knowledge that the army exerts undue influence, suppresses, and usurps power from other institutions. This was also Imran’s connotation when he made the aforementioned speech in Faisalabad. So, given this background, is criticism against the army justified? Absolutely.

However, was Imran justified in making the remarks he made? One might even argue that he was using parrhesia as he made the statement, knowing there was a grave personal risk involved. No one needs to be reminded of what the army is capable of in this country. But Foucault would argue that the speech was not justified, and here is why.

According to Foucault, parrhesia and rhetoric have a non-symbiotic relationship — they are independent of each other. Continuous long speech is a rhetorical device, while dialogue through questions and answers is more typical of parrhesia.

This does not mean that a back and forth is a requisite of parrhesia. Rhetoric can also be parrhesia. However, speeches where the speaker is trying to intensify the emotions of the audience through “simulated or artfully designed” means can never be parrhesia. Imran’s approach to politics is best categorised as populism — appealing to ‘the people’ by pandering to people’s emotions and creating ‘us’ vs ‘them’ groups. Imran’s statement at the rally was not parrhesia.

So, is the army, or any state institution for that matter, above criticism? No. Criticism is justified but must be judged by the standard of parrhesia.

states that society is made up of individuals that aggregate into institutions. The assumption here is that institutions need no consideration beyond the consideration of the individuals aggregated.

This can be compared and contrasted with ‘collectivism’, which stresses the importance of the community as a whole. Collectivism has a strong focus on group bonds and structures of mutual support and advancement. Prime among them are the institutions of governance. To embrace the individualist mindset is to ignore the collective, as was done by certain social scientists in the Enlightenment era.

Joseph Agassi and Ian Jarvie addressed this approach, explaining that social and political thinkers of that era dodged discussions of institutions. This meant that “economists discussed not the market but trade; politologists discussed not the state but the relations between the rulers and the ruled.”

One can already see the fallacy in this approach. It goes without saying that the market affects trade, and trade affects the market. Similarly, rulers affect the ruled, and the ruled affect the rulers. To focus on one while overlooking the other, is to not see the forest for the trees, or the trees for the forest. To focus on institutions while ignoring the individuals, and vice versa, is a recipe for disaster.

Having established this, we can understand the intertwined relationship between individuals and institutions. In an essay, Bertrand Russell wrote, “institutions mould character, and character transforms institutions”.

Without input from individuals, institutions remain abstract, but can gradually grow more concrete if they allow themselves to be transformed by character.

In the local context, recent amendments made to the Pakistan Penal Code through the Criminal Laws (Amendment) Act, 2023, are problematic for exactly this reason. The amendment introduces a maximum five-year prison term for anyone who publishes or shares information, through any medium, with the intent to “ridicule or scandalise” the military and judiciary or its members.

Without regard to the nature of the criticism, the amendment weaponises laws to curb free speech and weaken public scrutiny and criticism of state institutions. It is another step towards shutting out society at large.

This is counter-productive to say the least. Institutions must in fact keep their eyes and ears open to any and all public criticism. In any society, criticism varies from parrhesia to mudslinging to death threats. Each institution must develop their own checks to determine which criticism warrants consideration.

West Coast Hotel vs Parrish is perhaps the most prominent example of this. Leading up to 1937, Justice Owen Roberts along with other conservative judges of the SC had blocked most of Franklin Roosevelt’s New Deal measures which were meant to revive the country back from the Great Depression. Roosevelt started campaigning against the SC and public backlash soon followed. As a reactionary move, Roosevelt announced his court packing plan in 1937 to increase the strength of the court to 15 judges.

Around this time, the Parrish opinion was announced, and surprisingly, the SC upheld the constitutionality of minimum wage laws, sanctioning a New Deal measure.

This happened because Justice Roberts switched sides to vote with the liberal bloc. What followed was a realisation by Roosevelt that court packing was no longer necessary and he withdrew his plan. Professor Thomas Reed Powell of Harvard Law School famously dubbed this as “a switch in time saves nine”.

As a more recent example, the SC has faced public backlash in the US against their excessive use of emergency relief powers, used to freeze or unfreeze lower court rulings during the pendency of the case. Will Baude, a University of Chicago professor calls this the “shadow docket”. A shadow docket is a range of orders and summary decisions that defy its normal procedural regularity.

According to a report in the Chicago Policy Review, recent cases have indicated that the SC has used the shadow docket more frequently in controversial cases, and also in an inconsistent and partisan way. For example, the court stepped in to allow President Donald Trump to carry out a series of immigration policies struck down by lower courts. The SC also stepped in to protect religious liberties by blocking New York’s occupancy based restrictions on religious services during the Covid-19 pandemic.

By contrast, the court refused to step in to protect President Joe Biden’s policies or to block controversial conservative laws, like the Texas six week abortion ban which the SC allowed to go into effect in September 2021, 10 months before Roe vs Wade was overruled. According to the report, the court’s shadow docket rulings appear to favour Republican policies over Democratic ones. Perceived use of the shadow docket by the court to achieve political ends has drawn widespread criticism. Justice Elena Kagan described the court’s use of the shadow docket as “unreasoned, inconsistent, and impossible to defend”. But then there was an interesting shift.

In October 2021, the US SC refused to use the shadow docket to block Maine’s vaccine mandate. Two conservative judges of the court, Justices Amy Coney Barrett and Brett Kavanaugh, concurred to state that just because an applicant had made a case for emergency relief does not mean the SC had to intervene. Later, in 2022, Chief Justice John Roberts, another conservative judge, joined a dissent with the liberal bloc of the court to emphasise concerns about the SC’s excessive use of the shadow docket.

Since then, the shadow docket has been used far less often. Just consider the fact that in April 2023, the court preserved nationwide access to the abortion drug mifepristone. Stephen Vladek, author of a book on the shadow docket, believes that the Texas abortion ban case was a tipping point. It drew tremendous public backlash, forcing the court to self-regulate its powers.

Let us focus on the flip side of this argument — what happens when state institutions are completely shielded from public scrutiny.

In Pakistan, military courts set up time and again to prosecute terrorism suspects stand out as a glaring example. They have been criticised for suspending suspects’ constitutional rights in favour of high conviction rates. There have also been concerns about the accuracy of the testimonies against the accused, and discrepancies between the charges and evidence provided, as well as the lack of legal training of military courts’ officers.

Sam Zarifi, former Asia director of the International Commission of Jurists, also criticised the military courts for being opaque and operating “in violation of national and international fair trial standards”.

Ask yourself whether a civilian court can operate with the same level of impunity. The answer is no, for the obvious reason that civilian institutions have more transparency and accountability, however flawed these concepts might be in Pakistan.

Judicial decisions have political ramifications and there will always be a split opinion on whether criticism is fair, and whether the court should be responsive to it. But as argued earlier, institutions cannot exist in a vacuum, shielded from societal forces and preferences. That is why the Constitution must be interpreted as a living, breathing document. It must evolve with the society around it.

As this article argues, criticism is neither always good, nor always justified. But what cannot be denied is that historical and recent examples from across the world show that criticism and pressure from the public play a crucial role in holding institutions accountable.

Institutions must develop strong internal mechanisms to filter, register, and devise policies around good criticism. The sooner it is realised that institutions and the public are mutually dependent on each other, the better it will be for our country.

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China thrill in track and field but footballers flop again at Asiad



HANGZHOU: China swept four gold medals in track and field at the Asian Games on Sunday to celebrate national day, but their men’s football team failed to read the script and were dumped out by South Korea.

The hosts are running away at the top of the overall medals table in Hangzhou with 132 golds and still seven days of competition to go.

China is enjoying a long holiday for national day and patriotic fervour filled the 80,000-seater Olympic stadium in the eastern city for the evening’s athletics.

Waving mini flags and roaring on the home competitors, they were not to be disappointed.

Wang Jianan, nicknamed Ed­die, leapt an impressive 8.22m on his first attempt in the long jump. It proved enough to defend his title.

Discus thrower Feng Bin, who like Wang was dethroned as world champion in August, also bounced back in style to claim gold with a throw of 67.93m, a Games record.

“I’m really happy. After all, today is national day, a very special day for every Chinese person,” the 29-year-old Feng said.

“To win my first Asian Games medal on this day makes me extremely happy and excited.”

There was more home success through Lin Yuwei in the 100m hurdles and Zheng Ninali in the women’s heptathlon.

China’s men’s football team is often derided at home and they once again failed to get in the holiday mood.

They were outclassed and soundly beaten 2-0 by South Korea in the last eight to disappoint a bumper crowd of nearly 40,000.

The Koreans, who are chasing a third gold medal in a row in the under-23 competition, face Uzbekistan in the semi-finals.

Japan beat North Korea 2-1 and will play Hong Kong, surprise 1-0 victors over Iran, in the last four.

The North Koreans rounded on the Uzbek match officials at the final whistle and at least one furious player had to be held back by his team-mates.

China also suffered a comprehensive loss in the final of the women’s team badminton competition.

The South Korean squad raced onto the court and some players were in tears after a 3-0 win for their first gold in the event for nearly 30 years.

South Korea’s coach Kim Hak-kyun called the gold “precious” and said they were already targeting more success at next summer’s Paris Olympics.

“This is thanks to the determination, mindset, mentality and unity of our players,” said Kim.

China did however recover to win the final of the men’s team competition 3-2 after going behind to India.

The home nation also enjoyed double gold in table tennis, with Sun Yingsha winning women’s singles gold and the duo of Fan Zhendong and Wang Chuqin taking the men’s doubles title.

In some of the first action of the day, Thailand’s Arpichaya Yubol snatched women’s golf gold after India’s Aditi Ashok blew a seven-shot overnight lead.

In the men’s event, rising star Taichi Kho kept his nerve despite a charge by PGA Tour star Im Sung-jae for a one-stroke victory.

It was Hong Kong’s first gold in golf at the Asian Games.

At the shooting range the Chinese women’s trap team of Li Qingnian, 42, Wu Cuicui, 35, and Zhang Xinqiu, 29, set a new world record of 357 points on their way to winning gold, eclipsing the previous world best of 354 points set by the United States in 2018.

In trap competitors wield shotguns and aim at clay-based targets being fired rapidly away from the shooter at different angles.

The silver medal went to India, whose team included Rajeshwari Kumari, 31, daughter of acting president of the Olympic Council of Asia and former Asian Games champion in shooting, Randhir Singh.

In the men’s U23 3×3 basketball, Mongolia won their first ever Asian Games bronze medal in a team event, before Taiwan pipped Qatar 18-16 to win gold and trigger elation on the court and a huge roar from Taiwan journalists in the media centre.

Published in Dawn, October 2nd, 2023


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Pakistanis among 40 nations facing backlash for reporting rights abuses



ISLAMABAD: Pakistan is among the 40 countries across the world where over 220 individuals and 25 organisations faced threats and retaliation from the state and non-state actors for cooperating with the United Nations on human rights, reveals a new report of the UN Secretary-General.

The report titled, ‘Cooperation with the United Nations, its representatives and mechanisms in the field of human rights’ covering the period from May 1, 2022 to April 30, 2023, was recently presented at the Human Rights Council (HRC) session in Geneva. The session will continue till Oct 6.

The report says human rights defenders and other civil society activists are increasingly under surveillance and continued to face legal proceedings, travel bans and threats and they are given prison sentences for cooperating with UN’s human mechanisms.

The UN secretary-general said that the organisation has a collective responsibility to prevent and address intimidation and reprisals, guided by the principle of “do no harm” and a victim- and survivor-oriented approach.

Civil society activists face legal proceedings, jail sentence, travel bans and threats for cooperating with UN’s rights mechanism, says report

“Considerable progress has been made in shedding light on and addressing the issue, including through initiatives on civic space under ‘Call to Action for Human Rights’, the UN chief said.

“The UN is committed to strengthening its efforts to prevent reprisals, including through clear zero-tolerance messages and by awareness-raising among staff, member states and civil society interlocutors. We will further strengthen our response to reprisal cases and ensure appropriate systems are in place to identify, document and report on incidents, including those in the annual reports. We will reinforce the dissemination of information on what reprisals are and how to report incidents, in particular for UN bodies where reprisals are repeatedly reported,” he added.

“A global context of shrinking civic space is making it increasingly difficult to properly document, report and respond to cases of reprisals, which means that the number is likely much higher,” said Ilze Brands Kehris, Assistant Secretary-General for Human Rights, in her presentation to the HRC on Thursday.

“Despite ongoing efforts, regrettably, the number of reported acts of intimidation and reprisal by state and non-state actors remains high and their severity is very concerning,” she said.

“The global trends documented this year are also similar to those identified in previous reports, but with new emerging tendencies,” the UN official said.

Among the growing trends noted in the report is the increase in the number of people either choosing not to cooperate with the UN due to concerns for their safety, or only doing so if their identities remain anonymous.

Victims and witnesses in two-thirds of the countries listed in the report requested anonymous reporting of reprisals, compared with one-third in the last year’s report.

Most of the people who reported facing reprisals for their cooperation with the Security Council and its peace operations, as well as with the UN Permanent Forum on Indigenous Issues did so on the condition of anonymity.

Algeria, Afghanistan, Andorra, Bahrain, Bangladesh, Belarus, Burundi, Cameroon, China, Colombia, Cuba, Democratic Republic of the Congo, Djibouti, Egypt, France, Guatemala, India, Indonesia, Iran, Iraq, Israel, Saudi Arabia, Libya, Maldives, Mali, Mexico, Myanmar, Nicaragua, the Philippines, Qatar, the Russian Federation, South Sudan, United Republic of Tanzania, United Arab Emirates, Uzbekistan, Vietnam, Venezuela (Bolivarian Republic of), Yemen, and the State of Palestine are also on the list alongside Pakistan.

Published in Dawn, October 2nd, 2023


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Trump business empire under threat as New York fraud trial opens



Former US president Donald Trump will appear in a New York court on Monday as a civil fraud trial against him and two of his sons kicks off, with the case threatening the Republican’s business empire as he campaigns to retake the White House.

In Monday’s case, Judge Arthur Engoron has already ruled that Trump and his sons Eric and Don Jr committed fraud by inflating the value of the real estate and financial assets of the Trump Organization for years.

New York Attorney General Letitia James is now seeking $250 million in penalties and the removal of Trump and his sons from management of the family empire.

Trump said late Sunday he planned to be present for the start of the trial on Monday morning.

“I’m going to Court tomorrow morning to fight for my name and reputation,” the 77-year-old wrote on his Truth Social platform. “This whole case is a sham!!!”

In addition to this civil case, Trump also faces several major criminal proceedings in the months ahead.

He is scheduled to appear before a federal judge in Washington on March 4 on charges of trying to overthrow the results of the 2020 presidential election won by Joe Biden.

Trump will then be back in New York state court, this time on criminal hush money charges, and later in a Florida federal court, where he is accused of mishandling classified documents after leaving office.

Finally, he will also have to answer to state charges in Georgia, where prosecutors say Trump illegally tried to get the southern state’s 2020 election results changed in his favor.

In the New York civil case, Engoron ruled that Trump, his two eldest sons, and other Trump Organisation executives lied to tax collectors, lenders, and insurers for years in a scheme that exaggerated the value of their properties by $812 million to $2.2 billion between 2014 and 2021.


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