| 14 June 2004 | Monday | 25 Rabi-us-Saani 1425 |
Stand up and be counted
An act of offence
Empowering local government
The half century that has passed since China and India enunciated the Five Principles of Peaceful Coexistence bears witness to the continuing validity of these principles in the promotion of peace and concord in the world.
These five principles - namely non-aggression, non-interference in internal affairs, equality, mutual benefit and peaceful coexistence - encapsulate the quintessence of the rules of international law on the rights and duties of states to save the world from the scourge of war and guide its peoples towards peace and development.
Over the years, China has amplified the five principles to include rejection of hegemonism and power politics, the right of every state to choose its own political, social and economic system, respect for sovereignty and territorial integrity, and a peaceful and just settlement of international disputes.
Integral to peaceful coexistence is also to the promotion of an international economic order of justice, equality and mutual benefit with a key role for the United Nations.
During the more than a half century of Pakistan-China relations, the observance of the Five Principles has generated the deep understanding and mutual trust that characterizes them.
The boundary agreement of 1963 delimiting the watershed of the majestic Karakoram mountains as their common border, was a landmark event that set the stage for developing the comprehensive, stable and long-term China-Pakistan relationship. This entente has withstood the vicissitudes of internal as well as external challenges.
If I may be forgiven a personal recollection, I was privileged to be involved in some six months of negotiations on the delimitation of the common boundary.
Pakistan will always honour the memory of Premier Zhou-Enlai and Foreign Minister Chen Yi who, in the spirit of mutual accommodation, made possible the conclusion of the accord in December 1962, signed in March 1963. This was the event that inaugurated an epoch of enduring friendship between Pakistan and China.
China's observance of the Five Principles has enabled it to resolve almost all its disputes or differences with more than a dozen neighbours on the basis of mutual accommodation.
Renunciation of big power chauvinism and opposition to hegemonism has won for China their trust, removing any friction in its peaceful ascension to world power status; but China's famous aversion to haughtiness is such that it still views itself as a developing county.
In 1954, when the Five Principles were adopted, the cold war was gathering momentum. The world was bipolar, divided into two nuclear-armed camps with the United States and the Soviet Union confronting each other in a posture of gladiators poised for mutually assured destruction. Non-aligned nations were yet to institutionalize their nascent movement. China had not yet taken its rightful place in the United Nations.
Today, the world is unipolar, with all nations coexisting uneasily with the sole superpower that bestrides the world like a colossus. It has achieved unchallengeable military and technological supremacy.
The enlarged European Union can compete in economic power with the United States but has still to forge an independent foreign and defence policy to redress the lack of an international balance of power. The non-aligned movement is preoccupied with reinventing a rationale for its continued existence.
The hopes for a world at peace that arose after the lapse of the cold war have suffered severe blows. Genocides in former Yugoslavia, Rwanda and Burundi and internecine wars in Afghanistan, the Congo and countries of West Africa, illustrate the failure of the international system to undertake timely action to save mankind from the ravages of conflict and war.
Continuing repression of freedom struggles in Kashmir and Chechnya and the travails of the Palestinian people deepen the frustration of the oppressed victims. A pernicious doctrine of clash of civilizations has sought to invent a substitute for the ideological conflicts of the 20th century.
The horrendous atrocity of 9/11 was unanimously condemned by the United Nations. It evoked worldwide sympathy for the United States. A large number of states joined the war on terrorism and they continue to participate in efforts to eradicate the scourge although many states believe that coercive strategy needs to be combined with a remedial approach to address the root causes of terrorism.
Reacting to 9/11, the United States seized its "unipolar moment" to propound for itself a radical strategy to protect its national security and interests. It claims the right to unleash the full force of its military power against terrorists or states accused of harbouring them should it perceive a likely threat of attack on its homeland or its interests around the world.
This extraordinary US national security strategy paper was issued in September 2002. Several among the major military powers have seized upon the US doctrine to assert for themselves the same right to the preemptive use of force.
The US national security strategy also envisages forcing regime change in states suspected of possessing weapons of mass destruction or otherwise posing a perceived potential threat to US security or to that of its friends and allies.
The unilateral preemptive use of force negates the core principles of the UN Charter that outlaw aggression and interference in domestic affairs of states and call for peaceful settlement of disputes.
Preemption also goes beyond the pale of the right of self-defence against armed attack as recognized by the UN Charter as also the Five Principles that emphasize the principles of non-aggression and non-interference in internal affairs.
Within weeks of 9/11, Afghanistan was attacked for providing sanctuary to Osama bin Laden and the Taliban regime was overthrown. Some 13,000 US soldiers are still on search and destroy missions against the remnants of Al Qaeda and the Taliban.
In March 2003, Iraq was invaded and the Baathist Saddam regime terminated. Iraq still remains under a US-UK led military occupation. Both occupations are encountering growing resistance. In Iraq it is assuming a nationalist character. As Sargio de Mello, the UN envoy, said before he was killed in Baghdad last year, occupation is the cause of resistance.
World opinion was outraged by the contempt implicit in the US-UK refusal to wait for authorization of use of force against Iraq by the Security Council. The allegation that Iraq continued to possess weapons of mass destruction in defence of earlier UNSC resolutions was exposed as false.
While few mourned the overthrow of Saddam Hussein, the world watched with consternation the destruction of Iraqi's administrative and economic infrastructure and the killing of thousands of innocent civilians.
The scandalous abuse of Iraqi prisoners of war has confirmed the ruthlessness of the occupation and galvanized demand even in the United States and United Kingdom for an end to unilateralism and interventionism.
Why did Washington not emulate the strategy followed in Afghanistan of giving the United Nations the lead role in ensuring internal security and managing the transition to democracy? Neo-conservative ideologues were said to have advocated the war on Iraq as part of a grand design to "project power across the region", "restructure the Middle East", "command the oil market for the rest of the oil era" and perpetuate "the American imperium in the 21st century".
It has since become all too clear that such an imperialist design cannot be acceptable to the Iraqi people and indeed world opinion in the post-colonial era. The counter-productive consequences of unilateralism and pre-emption in Iraq are manifest.
This strategy, if pursued against North Korea to eliminate its nuclear weapons by military action, would be fraught with potentially catastrophic consequences for the region. Conscious of the limits to this strategy, the US has returned to multilateral diplomacy with China playing a key role, in transforming the Korean peninsula into a nuclear weapon-free zone.
Collective action under the aegis of the UN Security Council alone can salvage the occupation of Iraq which, in the judgment of even some US foreign policy establishment figures, is untenable, and setting a date for its withdrawal is therefore critical.
How successful has unilateralist pre-emption been in achieving the geopolitical aims of the US in its Afghanistan and Iraq wars? In Afghanistan, change has brought into power, through the Bonn process, a legitimate and sovereign government, but its effective authority remains to be extended beyond its capital territory. Security is still not nationwide.
Warlords' militias need to be disarmed and demobilized. Illicit production of opium has risen to 75 per cent of the world figure. Reconstruction is slow, impeded by insecurity. Preparations for elections in September to install a representative government could become problematic because of increasing resistance.
In Iraq, it remains to be seen if the interim government of Prime Minister lyad Allawi will be accepted by the Iraqis as legitimate and sovereign. The Security Council resolution of June 8 sets the end of January 2006 for withdrawal of the occupation.
It does not eliminate doubt about the full sovereignty of the interim government in its relationship with the US-led coalition forces in regard to major military campaigns. Also ambiguous is its sovereignty over the management of Iraq's oil resources, internal security and command over the new Iraqi army.
Civil War resulting from ethnic and sectarian power struggles could imperil Iraq's unity and territorial integrity. The road to elections and establishment of a representative government is also beset with problems.
The prisoners' abuse scandal in violation of the Geneva Convention on the treatment of prisoners of war, in Abu Ghraib prison and other secret detention centres, has dealt a blow to America's moral credibility in promoting the rule of law and respect for human rights in the region.
(To be concluded)
The writer is a former foreign minister.
Stand up and be counted
Last week this writer received an interesting e-mail from a reader. He wrote that I should try to get away, at least for a week, from the smell of blood, smoke and gunpowder that has salted the air over Karachi, because people were becoming increasingly wary of reading about depressing incidents like bomb blasts and attacks on convoys.
He suggested, instead, that I should help him solve a problem that has been vexing him for a while. After closely watching the actions and listening to the utterances of people in power in Pakistan, who according to him, said one thing and proceeded to do the very opposite, the writer wanted to know if there were any gentlemen left in Pakistan, or were we looking at a dying breed.
It was a rhetorical question, and a little tongue-in-cheek. But as I had received stranger e-mails on my computer, now that the creative nihilists had invaded my privacy, I said I'd do my best to provide an answer.
My first task was to determine just what constitutes a gentleman. I thought I had the answer 30 years ago when I approached the president of Karachi's most prestigious club and asked him what kind of qualities he was looking for in prospective members. The president, who was an Englishman, took a second to answer, "Why, gentlemen, of course". He assumed I knew what he meant. It was the old schoolboy network.
This writer then ploughed through books by authors as diverse as Evelyn Waugh, Nancy Mitford and Dorothy L. Sayers, who often wrote in awe of the aristocracy. They often referred to members of the exclusive club, but didn't elaborate on their virtues.
There were plenty of references, but no actual definition or description. And so he turned to the law for inspiration, in the hope he might pick up something. He read the famous cases of Norman Birkett and Patrick Hastings, two distinguished barristers, whose contributions to the world of jurisprudence are legendary. Birkett and Hastings had met many times in the joust of justice, and Birkett's quiet, factual persuasiveness was not always a match for the exuberant vitality and mercurial aggressiveness of the highly intelligent Hastings.
But though mention was at times made of the character of a gentleman during cross examination, he was still in the dark. That is, until he looked up Webster's Third New International Dictionary. This is what the great lexicon had to say on the identity of the gentleman.
"A man of noble or gentle birth; one belonging to the nobility or aristocracy; a man of quality; a man entitled to bear a coat of arms though not of noble birth; a member of the gentry; a man who combines gentle birth or rank with chivalrous qualities; a man irrespective of social status having chivalrous qualities; a man whose conduct conforms to a certain standard of propriety or correct behaviour...."
On one occasion during his student days in London, when this writer lived under the towering landscape of landlady land which had painted on its portcullis "Bed and Breakfast," he was in search of digs.
He walked into a resplendent establishment in Chelsea, met the landlady's daughter, and heard her say to her mother, who at the moment was towelling her head, depressed at the sight of gray hairs mealing up the brown, that there was a gentleman to see her about renting a room.. The first hurdle had been crossed. I had been accepted as a member of the genteel class.
Years later, I came across that delightful collection of cases entitled Uncommon Law written by the irrepressible A.P. Herbert. In the case Rex versus Haddock, the author asked the pertinent question: Is a golfer a gentleman? It caught my attention, for two reasons: because it raised an interesting point of law upon the meaning of the word 'gentleman,' and because it recognized a class above the degree of gentlemen.
I was suddenly transported to that group of worthy persons who sit in the National Assembly and the Senate, who play golf on weekends, who don't look like amateur cricketers, and are taken for men whose dress, refined speech, manners or regard for punctilio mark them as members of the educated or upper class; now that the graduate clause has been imposed.
Mr Justice Trout, giving judgment in the case under reference, stated that Mr Albert Haddock was charged under the Profane Oaths Act, 1745, with swearing and cursing on a Cornish golf course.
The penalty under the Act is a fine of one shilling for every day-labourer, soldier, or seaman, two shillings for every person under the degree of gentleman, and five shillings for every person of or above the degree of gentleman - a remarkable but not unique example of a statute which lays down one law for the rich and other, more lenient for the poor. The fine, it is clear, was not leviable upon the string or succession of oaths, but upon each individual malediction.
The curses which were charged and admitted were over four hundred in number, and the prosecution asked the court to inflict a fine of a hundred pounds, a large sum in those days, calculated on the gentleman's rate of five shillings a swear.
Mr Haddock gallantly admitted the offences, but contented that the fine was excessive as it had been incorrectly calculated on the curious ground that he is not a gentleman when playing golf.
Mr Haddock reminded Mr Justice Trout in a brilliant argument, that the law takes notice, in many cases, of such exceptional circumstances, as will break down the normal restraints of a civilized citizen and so powerfully inflame his passions, that it would be unjust to apply to his conduct the ordinary standards of law.
He gave the example of where without warning or preparation a man suddenly discovers another man in the act of molesting his family. Under such provocation the law recognizes that a reasonable man ceases for the time being to be a reasonable man, and in the special circumstances a gentleman ceases to be a gentleman and should not be judged or punished as such.
One wonders what might have happened if Mr Justice Trout had still been around when legislators in the National Assembly and the Sindh Assembly ceased to behave like legislators in the early days of the sham democracy which currently exists in Pakistan, when they repeatedly shouted profanities, not on the golf course but on the floor of their houses, banged their desks and removed their footwear in a display of defiance.
They would have probably been fined under the Profane Oaths Act of 1745, and Mr Shaukat Aziz would have been able to collect enough money to build the controversial Kalabagh Dam, without having to turn to the Asian Development Bank for assistance. Or they might have just passed an amendment. It's something gentlemen do with panache.
An act of offence
In the Machiavellian world of Pakistani politics, the law and Constitution are subject to the machinations of the state and vested interests. As early as the 1950s, Keith B. Callard, an American political scientist, observed, "No one is willing to die for the preservation of the Constitution in Pakistan," (Political Forces in Pakistan, New York: Institute of Pacific Relations, 1959). An emotional attachment to the Constitution and to the concept of the due process of law is essential in ensuring their preservation.
With the banishment of Shahbaz Sharif on his attempted return to Pakistan on May 11, 2004, the incumbent government of Pakistan has, like its predecessors, shown its myopia, arrogance and contempt for the laws of Pakistan.
By its ill-advised action, the government. (a) acted in a manner contrary to the ruling of Supreme Court "allowing" Shahbaz Sharif to return to Pakistan; (b) committed the criminal offence of "kidnapping from Pakistan" under Section 360 of Pakistan Penal Code; (c) violated Fundamental Rights accorded to Pakistani citizens under the Constitution; and (d) forcibly expelled a proclaimed offender (charged with criminal offences against the state) from the jurisdiction of Pakistan.
The word "banishment" rather than "deportation" is used here as the latter can be defined as "the removal or the sending back of an alien to the country from which he came" (Yonejiro Nakasuji v Seager, C.C.C.A. Cal., 73 F.2d 37,39). Being a citizen of Pakistan, Shahbaz Sharif, could not, in the eyes of the law, be deported.
"Banishment" was first known in England as abjuration, where the party accused fled to a sanctuary, confessed his crime, and took an oath to leave the state and not return to it without permission.
This was not in the nature of a punishment but rather as a condition of pardon. The practice of granting conditional pardons is sustained by the principles of common law and therefore the condition of such pardon may be banishment from the country, as in the United States (People v Potter, N.Y., 1 Parker, Cr. R. 47, 54).
Banishment here is used to connote an expulsion from the country even though "expulsion" generally means to eject, banish or cut off from the privileges of an institution or society (John B. Stevenson University v Hunt, 102 So. 637, 639, 88 Fla. 510) rather than a country.
Strictly speaking, "transportation" "extradition" and "deportation" are distinct and are used for different purposes. "Transportation" is by way of punishment of one convicted of an offence under the laws of the country while "extradition" is the surrender of a citizen to another country for him to be tried for a criminal offence and if found guilty, to be punished.
Under the laws of Pakistan, a person may be extradited only under a bilateral treaty with an other state after a magisterial enquiry under Section 8 of the Extradition Act, 1972, has been held.
"Deportation", as mentioned above, is the removing of an alien out of the country simply because his presence is deemed to be inconsistent with public welfare.
Deportation takes place without any penalty being imposed or contemplated, either under the laws of the country from where he is being deported or the laws of his own country, or under those of the country to which he is taken.
Shahbaz Sharif is a citizen of Pakistan and, therefore, has a constitutional right to be in Pakistan. He has not been convicted of a criminal offence in Pakistan and is wanted in connection with criminal cases here.
He attempted to return to Pakistan and face trial. He has not been the recipient of a presidential pardon or any conditions attached thereto, and is not wanted for a criminal offence in a treaty state.
Shahbaz Sharif's expulsion from Pakistan, therefore, was neither an "extradition", "transportation", "deportation" or even a "banishment" as used in its historical sense. Through its actions of May 11, 2004, the government may have done something for which there is no precedent in international law.
Section 360 of the PPC best describes the actions of the government when it says that whoever conveys any person beyond the limits of Pakistan without the consent of that person, or of some person legally authorized to consent on behalf of that person, is said to kidnap that person from Pakistan.
The offence of kidnapping from Pakistan under Section 360 of the PPC is a cognizable offence the punishment for which is seven years imprisonment and a fine. It is obvious that Shahbaz Sharif's expulsion from Pakistan was without his consent and willingness.
Sheikh Rashid's statement that Sharif was arriving in Pakistan merely as a transit passenger en route to his intended destination and that his departure was entirely according to his choice is laughable.
He reminded one of Saddam Hussain's information minister Mohammed Saeed al-Sahaf, who, while standing less than a few miles from on-coming American tanks was describing to the world, on international television, how the Americans were being crushed by the Iraqi army.
Various officers of the federal and provincial governments including, the prime minister, interior minister and the chief minister of Punjab have, therefore, rendered themselves liable to prosecutions for the acts of May 11.
Shahbaz Sharif's banishment was also a violation of his constitutional right to freedom of movement as guaranteed by Article 15 of the Constitution. It reads: "Every citizen shall have the right to remain in, and subject to any reasonable restriction imposed by law in the public interest, enter and move freely throughout Pakistan and to reside and settle in any part thereof."
Shahbaz Sharif's expulsion from Pakistan was thus neither "a reasonable restriction" nor was it imposed by law. The government's argument that its action was justified in view of an alleged agreement between it and the Sharifs is at least as thin as the paper it was allegedly written on.
Is there room, in the eyes of the law, for a supra-constitutional agreement? In the days leading to May 11, Section 144 of PPC was misused to round up Sharif supporters, and journalists were arbitrarily arrested.
A private TV channel was prevented from airing Sharif's interview in violation of its right to freedom of expression enshrined in Article 19 of the Constitution.
The government's action reeks of hubris and wanton disregard for the law, though it is in complete harmony with incidents such as the physical attack on the Supreme Court of Pakistan by Shahbaz Sharif's party members in November 1998 when the PML-N was in government.'
Empowering local government
One of the principal objectives of the much debated devolution initiative of the Musharraf government was improvement in the delivery of basic social services like education, health and drinking water. To this end, responsibility for service delivery was transferred from the provincial to the local governments.
The argument here is that since the devolution framework has not modified government systems and procedures and the incentive structures for locally elected representatives and service providers (district officials and field level staff such as doctors, teachers etc), the issue of poor quality public services remains unaddressed.
The rationale for conferring the responsibility of provision of basic services to the local governments was that if they were appropriately empowered by being providing with adequate human and financial resources, they would deliver basic social services such as primary health, education, water and sanitation more efficiently.
It was envisioned that such a policy change would enable local governments to effectively translate their resources into improved services and create institutions more capable of responding to local needs and priorities.
Any assessment of the potential of the new system to lead to improved service delivery outcomes would require a better understanding of the reasons why the old system patronized by provincial representatives failed to provide decent quality public services.
Since members of the provincial assemblies are elected representatives, they have to cater to the pressing demands of their voters with respect to assistance in jobs, promotions and transfers and the resolution of police and local court issues.
Such politically motivated recruitments and transfers further weaken the accountability of service providers, thereby adversely affecting the provision and quality of services.
The voters also demand the provision of electricity, telephone and natural gas connections and the establishment or upgrading of schools, basic health units etc., in their localities.
Demands for such facilities by influentials locals controlling a large number of votes are better placed to secure support from their political representatives. Since provincial representatives perceive that fulfilling the demands of supporters with large vote banks is instrumental in succeeding in the next election and they end up catering to needs at an individual rather than at a collective level.
As a result, the provision and prioritization of schemes is guided by considerations of political patronage rather than needs, again affecting service delivery.
It needs to be recognized that changes are required in the incentive structures for both elected representatives and service providers for improving the provision and quality of services.
Therefore, to assess the extent to which structural changes under devolution have helped in improving service delivery, it is important to evaluate the degree to which these incentives have changed.
Take the case of the locally elected heads of the district government i.e. the nazims. They are not elected directly by the voters. Their electoral college is made up of the union councillors, which is nevertheless much smaller than what would have been the case if the zila nazim were elected directly.
Furthermore, once the zila nazim has been elected, he can only be unseated by the members of the zila council, the union council nazims (who in the example discussed above in respect of elected representatives at the provincial level, are the equivalents of influential locals) by initiating a motion to remove him from office.
This arrangement has created a perverse incentive structure, since the zila nazim can to some extent ignore the demands of his electoral college (the union councillors) by responding to the wishes of the union council nazims; a strategy that may not be optimal for the overall welfare of the population of the district.
This is so because the union council nazims may be propagating their personal whims and desires and not reflecting the collective demands of their constituents.
Hence, the incentive structure for the locally elected representatives is similar to that of provincial representatives under the old system, if it is has not actually worsened.
Historically, service delivery has suffered owing to weak accountability mechanisms, and is not likely to improve unless the related governance issues are addressed.
For example, in the Punjab, only 102 government functionaries were charged for any irregularity during the period 1985-2000. Even among them the conviction rate was below 20 per cent, while the proceedings lasted a number of years.
Improvements in the quality of services can only be effected if the service delivery staff (for example teachers, doctors etc) are held accountable for their indifferent attitude towards duty through appropriate legislative changes and better institutional arrangements for enforcement.
Legally, provincial employees who have been placed at the disposal of the district government continue to be the employees of the provincial government. Their functioning and discipline is governed by the civil service rules, procedures and mechanisms notified by the provincial government.
Since the authority to hire and fire these employees lies with the provincial government, effectively the only action the district governments can take against the employees seconded to them is to surrender them to the former.
Whereas senior staff will continue to be recruited by the provincial government, the district government can hire staff up to Grade 16. The district governments will only have controls over staff that they recruit in future.
However, since the natural rate of attrition of staff i.e. (percentage of staff leaving in this case mainly owing to retirement) is barely two to 2.5 per cent, it will take a long time before the district government will be able to hire staff that will be directly accountable to them for the provision of services. In other words, the incentive structures for existing service providers also continue to be the same.
District governments have limited managerial powers over senior staff. Although, theoretically, even senior employees are under the control of the district government while they are stationed there, for all practical purposes they are beholden to the provincial government for their promotions and transfers.
As a result, they are more likely to respond to the signals and demands of the provincial government pertaining to the postings and transfers of subordinate staff located at the facility level (schools, basic health units, etc.).
Hence, with only weak administrative authority residing with the district government, it would be difficult to ensure improvements in the quality of service provision - one of the key objectives of devolution - in the foreseeable future.
Moreover, to enable local governments to deliver services effectively they will have to be provided adequate funding to meet: a) the salary requirements of an expanded and improved service delivery; b) complementary non-salary expenditures that are critical for service provision (for example medicines in the case of health, operation and maintenance expenditure of water supply schemes and consumables such as chalks and stationery for education) and c) development expenditure to address local needs.
Since Pakistan's tax structure is highly centralized, local governments are heavily dependent on financial transfers from provincial governments. They receive these funds under the award announced by the respective Provincial Finance Commissions (PFC).
Therefore, the funding provided to the district governments through this mechanism should be sufficient to cover the expenditures identified above. However, this will require that the increased fiscal space available at the federal level to lead to the transfer of additional resources to the provincial governments under the new National Finance Commission (NFC) award.
District Governments should also be fully empowered to utilize resources allocated to them. Only when these local governments have been provided with adequate resources and appropriately empowered to manage the human capital placed at their disposal will they be able to improve the delivery and quality of services mandated to them.
Devolution is a step in the right direction and can have a substantive impact on the quality of social services provided the issues highlighted above are addressed.