The failings of a viceroy

LAST week the Americans finally admitted that they are engaged in guerilla warfare in Iraq, rather than simply being faced with sporadic, uncoordinated attacks. The admission came from the new chief of the US Central Command, General John Amizaid, and although Washington would reject the idea, it must be counted as a damning indictment of US civilian administrator Paul Bremer.

He has taken on the mantle of something like a viceroy, a term that the Concise Oxford Dictionary defines as “a ruler exercising authority on behalf of a sovereign in a colony, province, etc.” The sovereign in the case of Iraq is not only, and perhaps least of all, US President George W Bush. The State Department, the Defence Department and the CIA are the ones according to whose ideas and wishes Paul Bremer came up with the new Iraqi Governing Council.

The council in no way offers a true reflection of Iraqi society. A predominant or decisive representation of the country’s Shia majority was rejected by the two ministries and the intelligence service because of fears that the Shias could stray onto Tehran’s path. Such an assessment does not exactly speak of a deep knowledge of the circumstances in Iraq.

Bremer conceded personnel and budgetary authority to the council, but only after pressure from the Iraqis and from UN representative Sergio Vieira de Mello. And he changed the adjective describing the body’s activities from “advisory” to “governing.” One could argue that without these concessions, the council would have been unable to fulfil one of its future functions — that of a scapegoat, should dissatisfaction with the slow pace of change continue or keep growing.

The council’s duties include the reconstruction of civilian structures, such as water and electricity supplies and the health-care system. It remains to be seen whether the council will be able to cope with these tasks. If it cannot, the Americans or the British will no longer be responsible. They will then be able simply to refer the Iraqi masses to the Governing Council.

The appointment of the general secretary of Iraq’s communist party as one of the 25 members of the council must have something to do with the scapegoat idea. Any notion that the hand-picked body is to consider leftist, social democratic social policies is quite unrealistic, though that is exactly the kind of thing one has heard from the party. The communist leader will not be able to push through anything programmatic, and it is to be feared that his powerlessness will discredit the party. But as a lightning-rod the man is indispensable.

All real decisions in Iraq will be made by the occupying powers, the United States and Britain, rather than by the Governing Council or the United Nations. The world body gambled away its possibilities when it passed resolution 1483 at the end of May. It gives the occupying powers rights and duties, and it legitimizes the war that was fought against the declared will of the Security Council and in violation of international law. The US ambassador in Moscow recently used the Russian press to make it crystal clear to the Kremlin that this is how things are. He said that since there was no Iraqi government, nobody could guarantee foreign diplomats in Baghdad their immunity as laid down in international law. The law of the land is that of the occupying powers.

Iraq’s most important source of revenue, namely oil, is in any case firmly in the hands of the occupying powers. The development fund, into which all assets and revenues of the occupied country are supposed to flow, is not controlled by the new Governing Council but by “the authority”, as the UN resolution puts it. Initially for one year, possibly longer unless the Security Council decides otherwise. How convenient that the United States and Britain have power of veto in the Security Council. We are looking at a rather clever construction that may put off Iraq’s self-determination for a very long time.

The 25 chosen members of the Governing Council and the ministers to be appointed by them have no independent access to financial resources and are dependent for their decisions on the approval of “the authority.” This is exactly what the Pentagon always wanted, and this is what Washington told opponents of Saddam Hussein when they had initially formed a coalition of only seven groups and parties. Now the council of 25 contains quite a few more sources of friction than the group of seven did. That became clear on the first day of its existence.

The representative of a leading Shia organization called for the withdrawal of US and British forces from Iraq as soon as possible, while other representatives hailed President George W Bush. It has been made quite clear in recent days that the occupying forces will remain in Iraq for an indefinite period. And as long as they are there, the Governing Council will remain a body of dignitaries with no real power.

Much has been written over the past few months about the lawlessness that pervades Iraq today. One might have thought that the Americans would have tried at least to make the capital safe. But Baghdad remains a flashpoint of crime, and there is one segment of society that is often excluded from public life in post-war Iraq because it is not being sufficiently protected and feels intimidated. That, at any rate, is the assessment contained in a study by Human Rights Watch that was presented last week. Hanny Megall, the organization’s representative for the Middle East, says women and children in Baghdad are so afraid that many of them do not go to work or to school.

The report describes what it calls a climate of fear, fed by accounts of rapes and a trade in women. Between May 27 and June 20, Human Rights Watch conducted some 70 interviews with crime victims, Iraqi policemen, medical personnel and US military police personnel. Twenty-three cases of rape and kidnapping are documented in the study. Take the case of a nine-year-old girl, named Saba in the report. Some stranger apparently grabbed her in front of her house on May 22 and raped her in an abandoned neighbouring house. A friend of Saba’s family found the bleeding girl and tried to find help for her. And this is where the girl’s second nightmare began.

A big clinic is said to have refused to treat her and referred her to the Institute of Forensic Medicine. But there the friend was told he needed something like an FIR. He told Human Rights Watch that he was simply unable to find a police station that was prepared to help. Finally a woman journalist took care of the girl, and after a few days Saba was treated by a US military doctor. According to Human Rights Watch, Saba’s is not an isolated case. Hospitals often refuse to treat crime victims, and the local police do not take much notice of complaints about sexual abuse and kidnapping. In addition, Human Rights Watch says, the US military police are not prepared to get involved when the Iraqi police fail. And there are said to have been cases of files disappearing.

Fear of being attacked intimidates women and girls and keeps them inside their houses. Human Rights Watch cites the example of Lina, who gave up her evening classes after hearing of another girl being ambushed at night. Of the original 50 girls in Lina’s class, apparently only eight or nine are left. The report takes the occupiers to task. It says as long as international human rights standards have not been established in post-war Iraq, the US is obliged to set up a commission against trade in human beings and sexual abuse.

Given the US civilian administrator’s record so far, it seems highly unlikely that he will move this particular issue anywhere near the top of his agenda. Having elevated Paul Bremer to the undeserved status of a viceroy, let us remind ourselves of a letter Queen Victoria wrote to Lord Salisbury on May 27, 1898: “The future Vice Roy must...not be guided by the snobbish and vulgar, over-bearing and offensive behaviour of our Civil and Political Agents, if we are to go on peaceably and happily in India...not trying to trample on the people and continuously reminding them and making them feel they are a conquered people.”

More Moussaoui mess

The government finds itself caught in an unenviable bind in the increasingly distressing case of Zacarias Moussaoui. This week, the full Fourth Circuit Court of Appeals in Richmond declined to reconsider a trial-court order allowing Mr Moussaoui to depose an Al Qaeda captive being held abroad.

The government, the court affirmed, cannot appeal the issue until it defies the lower court’s order by refusing to permit the deposition — which the government contends will threaten national security — and suffers sanctions imposed by the trial judge.

The Justice Department dutifully responded by declaring that it would not, in fact, have “an admitted and unrepentant terrorist (the defendant) questioning one of his Al Qaeda confederates.”

And it now awaits sanctions from U.S. District Judge Leonie M. Brinkema —sanctions that could even include dismissal of the case altogether. It will then presumably renew its appeal.

The case of Mr. Moussaoui, accused of participation in the Sept. 11 plot, was intended as a grand demonstration that American courts were capable of handling the biggest war-on-terrorism cases.

Instead it has demonstrated the opposite: that these cases pose enormous clashes bet-

ween basic constitutional trial norms and the executive branch’s ability to conduct war overseas.— The Washington Post

UN & global development

‘PLUS ca change, plus c’est la meme chose.’ (The more things change, the more they remain the same). This French aphorism perhaps best describes the uncertainties surrounding international efforts for a change in the socio-economic condition of the world’s poor.

Despite heightened focus on the global development agenda brought by the UN’s major conferences and summits in the economic, social and related fields since the 1990s, the overall outlook on the global horizon offers very little hope for a real and rapid change in terms of sustainable development and poverty eradication. The close of the last millennium, unfortunately, did not close the ugly chapters of poverty, hunger, disease and illiteracy, which continue to be the most daunting challenges for the international community.

The world remains divided between two unequal halves, one incredibly rich, and the other desperately poor. The income gap between the rich and the poor has never been wider in human history. The top 20 per cent of the world’s people, living in the richest countries, and account for 86 per cent of world’s GDP, 82 per cent of its export market, 68 per cent of all foreign direct investments (FDIs) and 74 per cent of all telephone lines. No wonder the number of LDCs (least developed countries which are so categorized on the basis of the level of their GDP, human resources and economic diversification) has almost doubled from 24 in 1971 to 49 today. These are no doubt, staggering and mind-boggling figures.

What is even more disturbing is that the world’s two largest regions, Africa and South Asia, both rich in natural and human resources, are the biggest victims of poverty and violence. Both continue to be the scene of endemic instability as a result of unabated inter-state and intra-state conflicts and hostilities. Most counties in these regions are also suffering governance problems rooted in an authoritarian and non-representative political culture. No development strategies at the national or regional level would work as long as the hunger of the gods of war remains unsatiated and until the underlying causes of conflicts are effectively addressed.

There are many questions that keep agitating our minds. Why are there so many poor people in today’s globalizing world at a time when there is such abundance of wealth and affluence? Why hunger, disease and illiteracy continue to grow and spread despair and disillusionment in most parts of the world? Why is an overwhelming part of humanity (more than 1.2 billion people) living on less than one dollar a day and a majority of the developing world’s population on less than two dollars per a day? Why is capital hesitant of moving in the direction of developing economies? Why are the developed markets closed to the products of developing countries?

For decades, the world has been looking to the UN for answers to these questions and for articulating a global consensus on how to address the issues of development and poverty. Through inconclusive North-South dialogue and four successive “development decades” undertaken at the UN in the 1960s, 1970s, 1980s and 1990s, an effort was made to sensitize the international community on the imperatives of development. The underlying objective of these initiatives was to explore the possibility of a new international economic order and to mobilize support for development.

A new international development strategy adopted in the third development decade sought to establish a target of 0.7 per cent of GDP for ODA by the developed countries. The international development strategy approved by the UN General Assembly in December 1990 was aimed at accelerating economic growth through enhanced emphasis on human resource development, entrepreneurship and innovation, while also recognizing the importance of democracy, and respect for human rights as well as social and economic rights.

All these years, the developing countries, on their part, have been seeking an international economic environment that would promote a genuine global partnership for combating poverty and promoting development. It has been an uphill task. For many nations, globalization unleashed enormous opportunities of spectacular economic growth and unprecedented income levels. But for the majority, globalization has been a sheer disenchantment and worrisome marginalization. Expected benefits of globalization have not been realized universally. The economic polarization has further deepened.

Those suffering from the negative consequences of globalization believe that it is a new form of economic and cultural, and eventually political domination. While the rich and the connected enjoy its fruits, the rest have been left in the cold. The fact is that the world economy, despite its global interdependence and vulnerability, is not global. Trade, investment and financial flows are mostly concentrated within the developed blocs. There is no transfer of resources from developed to the developing countries. The reverse is in fact the case.

While the developing world is plied with sermons about the advantages of deregulation and liberalization, the developed countries hardly apply these principles to their own markets which in most cases are almost like closed fortresses. Major areas of export interest to developing countries are either closed or protected through subsidies and other means.

There is no level playing field, because a level playing field is not possible between strong and weak economies unless international regulatory measures are in place to control the predatory policies of the more powerful players. The signs of a resurgence of the 19th century economic adventurism through military force are no less alarming for the developing world.

There is no denying the fact that the basic ownership of development rests with each developing country. But the development capacity and the potential of each developing country is inevitably conditioned by the enabling environment for mobilization of the needed resources through aid, trade, investment, debt relief, technical know-how, and global economic management.

Developing countries do not have to look for charity. What they need is enough space to harness their own resources and to capitalize on their potential. Macroeconomic stability, market access, debt relief, capital flows, ODA and, above all, fair and just treatment by international financial and monetary institutions are of great relevance and importance to their capacity-building as the principal means of poverty eradication and sustainable development.

Despite continuing problems and disappointments, the 1990s have been an eventful period for international efforts in building a global direction on multi-sectoral issues of development. As a result of the UN’s major conferences and summits in the economic, social and related fields during the last twelve years, poverty eradication and sustainable development have emerged as the overarching goals of the global development agenda and are today an integral part of economic activity at the national, regional and international levels. There has never been greater awareness of the need to address the challenges of poverty and deprivation and to mobilize the requisite resources to fulfil the internationally agreed development goals and commitments.

At the turn of the century, the world leaders, in their Millennium Declaration, recognized the importance of making progress on the three pillars of sustainable development, namely, economic growth, social development and environmental protection, in an integrated manner. They also resolved to make the “right to development” a reality for everyone and to free the entire humanity from want and misery. The road map set out in the Declaration identified a set of quantified and monitorable goals, the Millennium Development Goals (MDGs), to be achieved by 2015.

When the world leaders, gathered at the Millennium Summit in September 2000, were defining the MDGs, the world economy was at its best in over a decade and a half. The steep rise in world GDP from $11.7 trillion in 1980 to around $20 trillion in 2000 had given the world leaders the hope that through better global economic governance a big leap forward could be made in pursuit of poverty eradication. The hope seemed real and the target achievable.

Since then, however, two developments of monumental importance have changed the global economic scene. First, the world economic growth, which had soared to all-time highs, started its downturn. The negative trend was reflected in the decline in the gross world product from four per cent in 2000 to 2.5 per cent in 2001 and in the growth rate of developing countries from 5.8 per cent in 2000 to two per cent in 2001. (Notable exceptions were China and India, which maintained their growth rate trend with 7.3 per cent and over five per cent in 2001). Similarly, the world trade growth, after 18 years of uninterrupted expansion, also registered a reversal in 2001.

The other development was the global fallout of the tragic events of 9/11, as yet another negative aspect of globalization. The terrorist attacks have not only left a profound imprint on the economic nerve of the world’s largest economy, the United States, but also caused ripple effects on other economies of the world. In particular, economic activity in the countries neighbouring Afghanistan has been adversely affected by the on-going war on terror, especially in terms of losses to their investment, tourism, transportation and trade sectors. (Pakistan’s losses, according to reports, are estimated at over $10 billion.)

These two developments, especially the on-going slowdown in the global economy, will have far-reaching implications for the process of implementation of the MDGs as well as other internationally agreed development goals. The spillover effect of the slowdown in the major economies may further damage the fragile economies of the developing countries, which are already experiencing the negative impact of globalization. The foremost challenge for the world community is to ensure that these developments do not precipitate what many have termed “globalization of under-development”.

The recent economic slowdown of the developed economies was not unexpected. It was long feared that rapid growth in a handful of economies would not be sustainable in the midst of pervasive poverty and under-development. The turmoil in the Asian financial markets in the late 1990s was a telling reminder of the fragility of the world of finance.

The current global economic trend raises some fundamental questions: How do we remain on track to achieve the universally acclaimed development goals? How to prevent further marginalization of developing countries in the face of the recent economic downturn? How to make globalization a positive force in support of development? There are no easy answers to these questions. But the challenge is not insurmountable. Using the analogy of a glass half empty, the other half is still filled with hope and expectations. We can, and should, make globalization work for all. If we fail to do so, in the end, it will certainly work for none, as cautioned by the UN Secretary-General, Kofi Annan.

The Millennium Declaration recognized that the central challenge today was “to make globalization a positive force for the entire world’s people” and emphasized “shared responsibility of all nations of the world for managing worldwide economic and social development.” In this context, special emphasis was also laid on good governance within countries and at the international level through “transparency in the global trading and monetary systems”, which should be “equitable, rule-based, predictable and non-discriminatory”.

There is now a growing realization that in order to make globalization work for all, the developing and the developed countries would both need to stretch forward from their respective positions and evolve a realistic partnership based on justice, equity and equal opportunity. The developing countries must recognize the need to reform their fiscal and monetary policies, improve governance, follow pro-poor growth and invest in the social sector. The developed countries, on their part, should contribute to global macroeconomic stability, prevent the kind of financial crisis that hit East Asia in the late 1990s, assist developing countries through capacity building and technology transfer, and help better manage the global trading and financial systems.

In order not to be a zero-sum game, development has to be pursued as a shared goal and common agenda in a meaningful and mutually supportive partnership between the North and the South and through coherent multilateral cooperation. The burdens and blessings of globalization also need to be shared and managed by all through open, democratic, transparent and participatory multilateralism.

To be concluded

The writer, a former foreign secretary and permanent representative of Pakistan to the UN, is currently Senior Consultant to the UN Department of Economic and Social Affairs.

A second Korean war?

Fifty years after the end of the Korean War in July, 1953, could there be another one?

President George W. Bush said two months ago that North Korean nuclear weapons “will not be tolerated”. Last week North Korean officials at the United Nations defiantly informed their American counterparts that their country has finished reprocessing enough plutonium to create half a dozen nuclear bombs, and will move ahead quickly to produce the actual weapons. This moved former US Defence Secretary William Perry to worry aloud in a ‘Washington Post’ interview that the Bush administration is “losing control” of the situation. “I have thought for some months that if the North Koreans moved toward (reprocessing), then we are on a path toward war.”

How bad would such a war be? If ‘regime change’ in Pyongyang and an Iraq-style conquest of North Korea were the American war aims, very bad indeed. That was the US war aim for a good deal of the time during the first Korean War, and in three years that war killed three million Koreans and levelled every city in both North and South Korea. Half a century later, the Korean peninsula is at the heart of industrialised Asia, with Japan to the east and China to the west. According to US military estimates, one million people, including 50,000 American troops, would be killed in the first month of a second Korean war.

It is not, however, a high probability. To believe in a second Korean war, you must believe that North Korea already has or soon will have usable nuclear weapons, and that North Korea’s ‘Dear Leader’ Kim Jong-il is crazy enough to use them knowing he would die in a nuclear fireball himself twenty minutes later. Or else you must believe that the Bush administration is crazy enough to launch a full Iraq-style invasion of North Korea with the objective of ‘regime change’, and that South Korea would let the United States do that.

The worst thing that can happen in the Korean peninsula is unilateral American air strikes against North Korean facilities that somebody in the US intelligence community thinks are nuclear weapons production sites. That would not be a happy development, but it would not be anything like as bad as another Korean war.

Are there nuclear weapons in North Korea? “If you combine known facts with circumstantial evidence, we can be more confident that weapons of mass destruction exist in North Korea than in Iraq,” says Ahn Young-sop, professor of North Korean Studies at Myongji University in Seoul. Yes, but most of those ‘facts’ and evidence come from the same US intelligence agencies that brought us the fabulous vanishing WMD of Iraq, so how confident is that?

North Korea had a nuclear weapons programme before 1994, and continued with some clandestine work on uranium enrichment even after its deal with the United States, China, Japan and South Korea in that year supposedly halted it. The programme has doubtless gone back into high gear since January, 2002, when Mr Bush’s speech-writers added North Korea to the ‘axis of evil’ almost at random (they needed some non-Muslim state for balance, according to former White House speech-writer David Frum), because Bush’s speech scared Kim Jong-il half to death. But is it now on the brink of producing actual weapons? Nobody outside North Korea knows.

Getting nuclear weapons as fast as possible is a rational response by Kim Jong-il to finding himself on a US hit-list: the best deterrent to an American attack is the ability to strike at South Korean and Japanese cities with nuclear weapons. (Pyongyang has no rockets capable of reaching the US.) And if ‘as fast as possible’ isn’t really very fast, then it makes sense for North Korea to bluff and say it already has nukes.

But the only situation in which it might plausibly use them (if it has them) is against a full-scale American invasion that threatens the regime’s survival. That could not happen without a huge US military build-up in South Korea, but the existing US troop commitment in Iraq simply doesn’t leave enough troops available for another ground war. In any case, the South Korean government probably wouldn’t allow it: as President Roh Moo-hyun said during the election campaign last December (before his handlers hushed him up), “If the US and North Korea start a fight, we should dissuade them.”

North Korea, which is hopelessly outgunned, is certainly not going to start a fight, and the only attack the US can make without South Korean support is conventional air and missile strikes against North Korean nuclear facilities. — Copyright

The doctrines of necessity

THE monsoon struck Karachi twice during the last 15 days. This time the rain came down in buckets and then settled into a light drizzle. The road in front of my house had turned into a river with water running in all its ruts, and in the garden, deep in seeding grass, pale rags of mist hung from dripping thorns of acacia. It was the kind of weather that one longed for and received once in three or four years.

The rain always has a cathartic effect and is supposed to cleanse a city in more ways than one, though it often adds another dimension to the civic problems that already exist and are not likely to be solved in a hurry. This time the death toll was 10. But as a heavy downpour invariably restricts movement, it gives people time for reminiscence and reflection, and, of course, for catching up on one’s reading.

And so on July 16 I sat on my verandah with a book on the Indian Communist Party that I had picked up from a second-hand book seller in Khori Gardens, for the princely sum of Rs 20, that one always wanted to read but could never really find the time. And there was a clutch of newspaper reports that had been encircled in blue pencil.

It was one of these news items that caught my eye, as lightning flashed and the thunder reminded me that in spite of all our political rhetoric and bombast, we were just mere specks of protoplasm pitched against the outer concept of nothingness. The item centred on the Lahore High Court, presided over by the Chief Justice, which had given a decision that there was nothing in the Constitution that forbade a president from wearing a uniform.

It struck me at the time that there were other provisions of the same Constitution which state, quite categorically, that the principal requirement of a person who aspires for the top slot , is that he should be eligible to be a member of the National Assembly. It follows, therefore, that somebody who is still in the employ of the state, is not entitled to be a member of the National Assembly, even if he proudly wears his battle fatigues — unless two years have elapsed from the time of his retirement. It was an extraordinary decision. But then, their lordships must have known what they were doing.

A clap of thunder temporarily drowned out my thoughts, and I did wonder at the time, how many other claps of thunder had followed some of the other momentous decisions that had been taken by other eminent jurists of Pakistan in the past. Though the list is mercifully short, the granddaddy of momentous decisions, which ensured, once and for all, that the democratic process in Pakistan would go completely off the rails and land in the marsh, was the historic judgment of the Chief Justice of the then Federal Court in 1954.

After that fatal decision, in spite of much roar and thunder by feudal democrats, like the cigar-chomping old campaigner, Nawabzada Nasrullah Khan, sodden with emotion and aristocratic disdain, and the hero of the 1965 war, Air Marshal Asghar Khan, the process could never really get back on the rails.

In 1954 Chief Justice Muneer declared that the dissolution of the legislative assembly by Governor-General Ghulam Mohammed was legal. And so a scrupulously honest prime minister, who represented the demographic majority and the eastern wing of the country, was unceremoniously turfed out of his elective office.

The story of how Maulvi Tamizuddin Khan arrived at the servant’s entrance of the Sindh Chief’s Court in a rickshaw, dressed in a burqa to avoid detection by the police who were determined to block his entrance, the subsequent writ petition, reinstatement of the prime minister and overturning of the judgment of the Chief Justice, is now the stuff of legend. But, the die had been cast. And things were never quite the same again. The rule of law became the law of the rulers.

Four years later, the same illustrious chief justice upheld the military takeover of General Ayub Khan. The Doctrine of Necessity now took its rightful place on the legal shelves, ready to be invoked at a moment’s notice whenever the need arose. Around this time both the lawyers and the law makers discovered that the most powerful word in bureaucratic use was ‘precedent.’ It edged out phrases like moral conviction, moral right and the democratic rights of the majority province.

Once a precedent had been set all a judge really had to do when the tanks started to roll down the streets pointing their turrets, say, at the local municipal building, was to incorporate the names and the dates in the new proclamation before him, and rephrase passages from the 1954 judgment to deliver the verdict in the present case. What else could their lordships do?

That’s just what another Chief Justice did in 1977, when General Ziaul Haq of the triple embrace and double handshake decided it was his turn to have a crack at putting the country right. And so he hastened the departure of a democratically elected politician who happened to be one of the two prime ministers that the province of Sindh had produced. One was hanged and the other summarily dismissed for trying to curb the military predominance in politics — both by Gen Zia.

While this writer was mulling over the significance of the Doctrine of Necessity, he was reminded of the use of this phrase by the great Abraham Lincoln who, in a speech in 1838 said, “Reason, cold, calculating, unimpassioned reason was our future support and defence’. And in his 1846 handbill, he confessed that when he was younger he had privately argued in favour of a Doctrine of Necessity, but had not advocated the doctrine for five years.

The weather had started to clear and I was beginning to wonder whether the denouement of the judges, who had been shown in their engrossing variety, was coming to an end, when I was suddenly reminded of the endorsement by the Supreme Court of the Musharraf take-over, after what must have been the communication by a former prime minister, of the most ridiculous order in aviation history. What I couldn’t understand, and no jurist has been able to enlighten me on the subject, is how the president could be given the right to amend the Articles, when this august body is only supposed to interpret the Constitution.

A rainbow suddenly appeared on the horizon, and I was about to open Wallace Stevens’ book of poems, when my eye fell on a news item in a foreign newspaper, which had been reproduced from the August 25, 2001, issue of The Fiji Times., which is something of a landmark in the island’s history of jurisprudence, and which I felt I must share with my readers. It is entitled “Judge versus judge” — Judicial war rages on.

A High Court judge has criticized another for using the doctrine of necessity to reject a case last month which challenged the legality of the caretaker administration.

While making a ruling yesterday on an unrelated case regarding the removal of VAT from essential food items, Justice Anthony Gates said he could not follow Justice Michael Scott’s application of the doctrine of necessity in the recent Citizen’s Constitutional Forum case.

He said there was a danger in allowing the doctrine of necessity to degenerate into a doctrine of convenience to avoid awkward or embarrassing situations. He said Justice Scott’s application of the doctrine in the CCF was inconsistent with the constitution.

“It was not clear, however on what basis Scott J had applied the doctrine to each of the declarations concerning adherence to the Constitution, “ he said.

Last month, Justice Scott refused to declare the appointment of the interim administration null and void in a case that was filed by the Citizen’s Constitutional Forum against the state.

He justified the actions of the president since May 19 last year in dismissing Mahendra Chaudhry as prime minister and dissolving parliament as a matter of necessity. But yesterday Justice Gates said it was a surprising observation in relation to the basic law.

“Could the country not expect the upholding of its constitution and the rule of law? With respect I cannot follow the application of the doctrine of necessity in the Yabaki decision and I derive no assistance from it,” he said.

Doctrines of Necessity will continue to be used in Pakistan and elsewhere in pursuit of the indefensible, as long as elected governments continue to make a mess of things and treat the national treasury as an extension of their own private exchequer .It is the politicians who have to ensure that the need should never arise in the future.

E-mail: a-mooraj@cyber.net.pk