| 20 November 2004 | Saturday | 07 Shawwal 1425 |
Left should know what's right
Judiciary and the age factor
As the time approaches for the second round of the composite dialogue between Pakistan and India, the latter appears to be hardening its position on Kashmir, which is regarded as the core issue between the two countries.
Prime Minister Manmohan Singh, who has been remarkably conciliatory in his demeanour and language, issued a tough statement, calling for an end to trans LoC terrorism in Kashmir from the Pakistan controlled part of the state.
Another accusation was made about Pakistan obstructing the role of the All Parties Hurriyet Conference (APHC) in the quest for a solution of this dispute. There is good reason to suspect that since the issue of Kashmir will be taken up substantively for the first time in the coming round, India wants to prepare a scenario of its own choice. A cease fire has been enforced along the LoC since November last year, which has enabled India to put up a fence close to it.
India continues to have over 700,000 armed men in the state who have not ceased to use indiscriminate violence and repression against the Kashmiri people. The latter have not abandoned their indigenous struggle against India's forcible occupation.
Following the re-election of President Bush, who remains preoccupied with the war on terrorism, India is anxious to remind the world that it is facing a terrorist movement in Kashmir.
So far as Pakistan is concerned, the government has been showing flexibility ahead of the second round, with President Pervez Musharraf speaking openly about Pakistan's readiness to look at a wide range of options to find a formula acceptable to India, Pakistan and the people of Kashmir.
Though he was careful in pointing out that he was not formally proposing any options, but only throwing up ideas to stimulate discussion in the country, it is obvious that he was signalling a readiness to move from Pakistan's traditional position.
Such flexibility can be helpful only if the other party is also prepared to move from its known position. The atmosphere of relations has not been so positive for a long time, and it took special efforts last year to bring India back to the negotiating table, through a secret channel that was used without much publicity.
That channel, involving national security advisers on both sides, is still functioning, and may facilitate the timely holding of the second round, despite discouraging signals emanating from the Indian government so soon after the cordial Musharraf-Manmohan Singh meeting in New York.
The intransigent Indian stance has been registered, and will have the effect of delaying meaningful progress on the most sensitive item on the agreed agenda for the composite dialogue.
US Deputy Secretary of State Richard Armitage, who is about to quit his job, has again been in the region, for his periodic consultations in South Asia. The primary subject of interest for the US remains the war against terrorism, in which both Pakistan and India are its allies.
Washington has an interest in the bilateral dialogue between the two nuclear-armed countries, because it would not like to see their traditional hostility towards each other revived.
However, the sole superpower is no longer concerned with the principles involved that are reflected in the UN resolutions on Kashmir. It would prefer that the two work out a solution fairly close to the status quo, hoping that it would also be acceptable to the people of Kashmir.
Whatever changes are to be made must be done on the basis of an agreed compromise, and Washington is unlikely to put pressure on New Delhi, with which it has a strategic relationship. India is aware of this and has therefore stiffened its stance on Kashmir.
The signals from New Delhi concerning the renewed dialogue obviously seek to set the parameters of the discussion on the core issue of Kashmir. The accusation of instigating intrusion by militants has been repeated, and even the blame for lack of progress on India's dialogue with the APHC has been put on Pakistan.
The factual situation is that Pakistan is implementing its assurances on not encouraging cross-LoC activity, and if India, with over 700,000 armed men, and a newly completed fence cannot prevent some Kashmiri freedom fighters from crossing into held Kashmir, there is no justification for blaming Pakistan.
So far as the role of the APHC is concerned, Pakistan had signified its readiness to receive a delegation from the Hurriyet Conference, but the Indian government has not issued passports to enable such a delegation to travel. However, the Indian stance is not totally negative.
The announcement by New Delhi that India will withdraw some elements of its armed forces from occupied Kashmir - and has done so in certain parts - on account of an improvement in the security situation, does constitute a positive gesture, which has been welcomed by the Pakistan government.
The attitude of the public in Pakistan in general, and Azad Kashmir in particular, is to stick with our principled position, since the realities on the ground have not changed. The Muslim population of Kashmir remains alienated from Indian occupation, and is not prepared to accept a solution based on might, after the sacrifices it has made.
Peace and tranquillity will not come from a solution that does not find acceptance among the people of the disputed state. President Musharraf has shown realism by conceding that neither India nor Pakistan can expect a solution that accords with its known stand.
Though India claims that even to agree to a solution based on the LoC constitutes a concession, since it claims the whole state on the basis of the accession by the Maharaja in 1947, its stand is contradictory, since it refused to accept accession to Pakistan by the Nawab of Junagarh in 1947, on the ground that it did not accord with the wishes of the people.
There was a commitment both by the governor-general and Prime Minister Nehru himself to ascertain the wishes of the people of Kashmir, before the accession became final.
Nehru had stated a week after the accession, "We have declared that the fate of Kashmir will be decided by the people. That pledge we have given not only to the people of Kashmir, but to the world. We will not and cannot back out of it."
Some lessons have to be drawn from the 55-year-old history of Kashmir. The LoC cannot be a solution, because it only constitutes the line where the fighting stopped as a result of a cease fire enforced by the UN, which continues to have a presence along that line.
India enforced some changes following the 1971 conflict between the two countries, and secured a change in its name to Line of Control in the Shimla Agreement, in an effort to end UN involvement.
However, Pakistan safeguarded its position about relevance of the UN resolutions in the same agreement, in which an amendment was made into Article IV, that stated that the "Line of Control in Jammu and Kashmir will be respected by both sides, without prejudice to the recognized stand of either side."
A critical point has been reached in the dialogue. The visit by Prime Minister Shaukat Aziz to India towards the end of November is going to be in the context of Saarc, though it may serve to strengthen the spirit of cordiality.
The subject of Kashmir will be formally taken up in the foreign secretary and foreign minister level talks in December. While the proposals made public by President Musharraf will open prospects for looking at new options, informed observers are already voicing their concerns in the debate started by those options.
Many of these concerns centre on the status of the Northern Areas, which were not under the jurisdiction of the Maharaja in 1947. The fact that they adjoin the Chinese province of Xinjiang has given our relationship with China a strategic dimension.
Should the status of the Northern Areas change in negotiations that permit independence or joint jurisdiction, the possibility of foreign bases, or of detachment from Pakistan would both degrade Pakistan's strategic relations with China.
Similarly, if condominium in the Valley were linked to a similar status in the Northern Areas, it is open to question which side would have gained the advantage. The consideration of various options, presented mainly for public debate, need to be tabled as the basis of negotiations with India with great care, lest we emerge being worse off. Maintaining our special relationship with China should remain a basic consideration.
The major international player in the negotiations will be the US, where President Bush is the dominant figure. The US has been treating India as a strategic partner, and Pakistan's importance is said to be "tactical", so that if the crunch comes, the US may be inclined to favour India's interests. One would hope that President Musharraf's personal standing with President Bush would secure a more sympathetic and even-handed approach by the sole superpower.
Though some analysts favour the setting of a timetable to expedite the pace of progress, we need to ponder whether the acceleration of the process will help us when vital national interests are involved.
"Making haste slowly" could well be the strategy that might suit both the participants in the dialogue, though for different reasons. We also need to bring on board the authentic representatives of the people of Kashmir, who are a main party in the dialogue process so far as Kashmir is concerned.
Left should know what's right
There is no doubt that the left is not happy with the Congress-led government. It could not have been because of ideological incoherence between the two. They came together to keep the BJP out of power at the centre and they achieved the purpose.
Apparently, that should be uppermost in their mind, but for the manner in which the left carps at the governance, makes an issue of every economic step the government contemplates and gives the impression that the arrangement faces a perennial danger.
The left, too, suffers in the process because the ruling United Progress Alliance (UPA), of which it is a member, lessens in stock. The National Democratic Alliance (NDA) in the opposition is banking on the differences to grow.
The coordination committee, constituted under the chairmanship of Congress president Sonia Gandhi, is the forum to discuss the lapses in the Common Minimum Programme (CMP) which they jointly prepared. But the apparatus doesn't seem to be working properly. When a left leader says publicly that they can also "bite" it only exposes the UPA to ridicule.
In fact, the left should have joined the government. It was offered the deputy prime ministership and 10 ministries. By rejecting such an arrangement, the communists committed their second historical mistake.
The first one was when the name of Jyoti Basu was proposed for the prime ministerial post before the choice fell on Deve Gowda eight years ago. The communists, with the exception of Basu and comrade Harkishan Singh Surjeet, were against joining any government until they had a majority of their own in the 543-member Lok Sabha. They put forward the same argument this time.
But this does not look as if its happening although the left has increased its strength in the Lok Sabha from 50 to 62, the highest since India's independence. However, differences between the communists and the Congress are not new.
They have been fighting over economic policies for the last 40 years. The scene was relatively quiet during the Jawaharlal Nehru rule (1947-64) because his socialistic pattern fitted into the communist philosophy of public sector pre-eminence.
Things have changed since. So much so that Finance Minister P. Chidambaram publicly said that Nehru's policies are "responsible for the country's poverty." How far he alone is to blame is a matter of discussion.
But if the taste of the pudding is in its eating, India's growth rate till the beginning of the 90s has averaged 3.5 per cent which the late leading economist Raj Krishna describes as the "Hindu growth rate."
Seeing the prospect of large foreign investment in the country, the Manmohan Singh government wants to open up many sectors. There is also resentment in the Congress that good money is being thrown on bad public sector undertakings. The left is sensitive on this point. It feels that their closure will throw out thousands of workers to join the ranks of the unemployed. The determining factor should be progress.
If the losing projects have shown no improvement in the last six months, they should be closed. This point should be hammered out at the coordination committee. On the other hand, the left should keep in mind that the continuous loss of public sector undertakings might force the exchequer to withhold funds from social sectors like health and education.
The left is, however, justified in its complaint that the Manmohan Singh government does not consult it. Things have improved a bit after the prime minister's personal intervention.
But there seems to be a lot of backbiting to spoil the atmosphere. Also, the functioning of the cabinet system leaves little room for prior discussion when a decision is taken contrary to a ministry's note.
Still, I do not recall any decision which has gone against the basic structure of the CMP. Too much hair splitting is not desirable. What the left should ensure is that the decision taken is within the precincts of the CMP.
For example, I did not see any harm in associating with foreign experts, whether from the World Bank or the Asian Development Bank, in assessing the gains accrued from the past 50 years of planning.
This would have ensured "transparency," as the Planning Commission's deputy chairman Montek Singh Ahluwalia said. Maybe, we do not see the wood for the trees. We need not accept the suggestions by outside experts but should at least know why the 10 five-year plans have not broken the back of poverty and unemployment.
The Chinese, on the other hand, have reportedly invited foreigners to head some of their segments of economic development to learn how the pace of progress can be accelerated. An ideology that wilts at the touch of a foreigner is dogmatic in character.
The yardstick should be the gain which accrues. In that sense, the CPI (M) government at Kolkata is more pragmatic because it is interested in the foreigners' expertise, not their domicile.
I saw the late prime minister Lal Bahadur Shastri, with whom I worked as press secretary, proposing a plan holiday for taking stock of the situation. He did not invite outsiders for assessment but halted the plan for one year to find out where the country was going.
Perhaps there is something in the allegation that India is a soft state and cannot take hard decisions. Are we afraid that outside assessors may suggest something which we may find difficult to implement?
Ideological differences of the left are understandable. But when they are aired every third day, they make the performance of the Manmohan Singh government look still more ordinary.
The left's disappointment over the non-performance of the government is understandable. But the communists' first task should have been to expose the BJP's anti-democratic methods.
Take the campaign against tainted ministers. True, it was a mistake on the part of the prime minister to induct Laloo Prasad Yadav and his Rashtriya Janata Dal members in the cabinet. But the prime minister was under compulsion and explained the dictates of the coalition dharma.
The support of the 23 RJD members was important for the formation of the government because that gave him the crucial numbers for a majority. I think that the communists would help him if they were to prevail upon Yadav to drop at least his tainted party colleagues until the cases against them were cleared.
A few days ago, the NDA paid a compliment to the UPA for ironing out differences through talks. Still more needs to be done. The left tends to go to the media first and the coordination committee later. On the other hand, the Congress should keep in mind that globalization as such does not sell with the left or, for that matter, with most of the country's population.
Now that the NDA has closed its ranks on Hindutva and allowed the BJP to ventilate its views from its platform, the task of the UPA will be onerous to take the mask off the NDA.
The BJP has been told that the NDA members will not object to its preaching communal hatred and frenzy so long as it does this form its own forums. From the NDA pulpit it should look pure, prim and proper. Ambition can, indeed, make political parties combine even fire with water.
The writer is a freelance columnist based in New Delhi.
Judiciary and the age factor
The tenure of high court judges in Pakistan has been made the shortest in the world. The 17th Amendment to the Constitution laid this milestone and reduced the maximum distance that a High Court judge may travel to 17 years. The shortest also in the service of Pakistan, and much shorter than any other, officer, bureaucrat, teacher or nurse.
Long serving judges bring knowledge, experience, stability and continuity to the judicial institution. The dispensation of justice starts to flow more naturally, easily. Not all are born with the Wisdom of Solomon: they acquire the art slowly, they trudge the road one step at a time.
The government and the Muttahida Majlis-e-Amal (MMA) heaved onto their shoulders the 17th Amendment and laid low the institution of the Judiciary. The 17th Amendment was supposed to bring the nation back onto the Constitutional path.
Whether it achieved this is uncertain, but it certainly waylaid the judiciary. Prior to this Amendment a qualified person could be appointed a judge of the high court at the age of 40 years and retire 22 years later.
After the enactment of the 17th Amendment a person can only become a judge at the age of 45 years and continue as a judge of the high court for a maximum of 17 years. Five years have been quietly shorn off from a judge's tenure.
At the time the focus was on the uniform issue, whether the president of the country should also head the army. The Amendment did not resolve this matter, but mangled the institution, which is the keeper of the nation's laws and which adjudicates disputes. The institution has taken far too many blows by men in battle fatigues who are paranoid of men and women wielding pens.
Some of Pakistan's finest judges attained judicial office in their early 40s and distinguished themselves. This door has now been constitutionally shut. The minimum age for holders of any other constitutional office was left untouched.
The voting age was brought down. Voter at 18, member, provincial assembly at 21, Member National Assembly at 25, Senator at 30, governor at 35, but a high court judge now at 45.
The government and all those who collaborated in the passage of the 17th Amendment have demonstrated by deed that they do not want the judiciary to develop the requisite expertise in dealing with a large number of, and at times extremely complicated, cases.
Courts are suffocating under the weight of old files of pending cases, and new ones continue to be stacked up. Curtailing the maximum tenure of a high court judge in such desperate situations leaves litigants gasping for justice.
The 17th Amendment could only have been passed with MMA's support. At the time the MMA claimed that necessary safeguards had been placed in the bill to stop the presidency from being encroached up on by the army chief. Now the MMA pretends that it was duped on the uniform issue, "We were led to believe", "assured", "promised", but no clear explanation, or is it all a charade?
Initially the MMA was adamant in its resolve and opposed the 17th, Amendment. The government then questioned whether a madressah degree, held by most MMA members of parliament, complied with the graduation precondition to contest elections.
The leash of the MMA government in the NWFP and its coalition in Balochistan was also tightened. What followed was smooth sailing for the bill. The MMA abandoned its principles and endorsed the 17th Amendment and the government loosened its grip on the leash, and the case that had assailed the madressah degrees disappeared.
Pragmatism overcoming uncomfortable principles, the certainty of a cushioned life traded for the unknown, where truth stalks. The glint of power and its pleasures reflected in the eye.
The fountainhead of justice ('adl'), Islam's central feature, got further contaminated in the Islamic Republic of Pakistan with the passage of the 17th Amendment. Dispensation of justice requires judges. Shortening their term makes this goal ever more difficult to achieve.
However, there are some judges who are very popular with the government, those close to retirement. Elections require monitoring by the Chief Election Commissioner, an office for a judge who dispenses well.
The last general election held under the aegis of the Chief Election Commissioner secured victory for a infantile political party Cobbled together. The victory was presided over by a man who on his retirement as Chief Justice of Pakistan accepted appointment as the Chief Election Commissioner, raising the troublesome question whether judges who are close to retirement and who are hearing cases in which the government is very interested can act impartially when expecting another appointment. And does such an appointment uphold the simple home truth which has become a cherished principle: 'Justice must not only be done but be seen to be done'.
General Zia and General Musharraf appointed retired Supreme Court judges as their chief election commissioners. These CECs conducted extra-constitutional referendums in which only one candidate's name was on the ballot. Billions was spent on a bizarre exercise and they busied themselves tabulating an unprecedented voter turnout.
According to them, the voters had overwhelmingly endorsed the general in power. But all this is so much hogwash. Hopefully, the present general feels secure, now. A nascent political party not only spoke in the cradle, but rules. Will these rulers of the nation do what they are so fond of mouthing, a little something in 'the national interest'? Amending the Constitution just once for the right reason.
An 18th Amendment to the Constitution restoring the prescribed minimum age of 40 years, at which judges may be appointed and prescribing that judges on retirement cannot be employed in any capacity by the state.
After all, the wisdom in having a retirement age is that a person retires, but if a judge simply changes jobs on retirement, he or she does not retire. An amendment that will also integrate the principle that justice must be seen to be done, ensuring that those taking the oath to decide cases "without fear or favour" also live up to the oath.
Another anomally that the proposed 18th Amendment should remove is the disparity in the retirement ages of high court and Supreme Court judges, the former retiring at 62 and the latter at age 65. There is no logic in having two different retiring ages.
It only enables the government to manipulate judges. A high court judge nearing his retirement age of 62 may wonder whether he would be elevated to the Supreme Court. Signals may be sent to him that he is being considered for elevation and expectations may take the form of subtle manipulation.
Elevation to the Supreme Court means that a judge continues to serve till 65, another three years. The Constitution must ensure that every potential for misuse and manipulation is removed.
The government borrowed 350 million dollars from the Asian Development Bank under 'The Access to Justice Programme', but tampered with the Constitution, and took justice a little further out of the peoples' reach.
Should all hopes pin on the lender and expect it to prudently enquire where its money is going and why the government took this step, which negates the concept of access to justice? A little integrity, honesty and doing the people-friendly thing pays greater dividends than throwing money at the problem. The government needs to break free from the habit of using, abusing and misusing the judiciary.
In the context of the promised 'judicial package', let the prime minister table the 18th Amendment and gain the nation's favour. After all, it was his government and the MMA that gave the blow to the judicial process by the 17th Amendment.
Let him make amends and unite a divided house. The real PPP and the PML are expected to support the 18th Amendment as they have roots among the people. The MQM too is expected to support the amendment. The salivating patriot bees will of course remain stuck on the government honeycomb.
This parliament is the first that is fully made up of graduates. Let it then demonstrate that education has a purpose. Let the members prove by enacting the much-needed 18th Amendment to the Constitution that parliament is not just an expensive showpiece in a poor man's house trying to impress foreign visitors.