| 02 January 2005 | Sunday | 20 Ziqa'ad 1425 |
The prospects of confrontation
Bilateralism and the Kashmir dispute
It is amazing that just about a year after the unanimous adoption of the 1973 Constitution, Zulfikar Ali Bhutto's government began to see deficiencies in this covenant and proceeded to amend it. In a short span of three years, it was subjected to change seven times. I propose to examine these amendments to identify the main trend of thinking, and the motivation, behind them. I shall omit reference to the relatively inconsequential changes.
The first Amendment (May 1974) adds to Article 1 a provision enabling the state to include territories that may come within its fold by accession or "otherwise," probably meaning conquest. This addition was needless, for it is an inherent right of a state to add to its territory in the manner envisaged.
Article 17 is amended to the effect that if the federal government declares a certain political party's operations to be prejudicial to the country's sovereignty or integrity, it must refer the matter to the Supreme Court within 15 days of such declaration. This addition, by raising the issue at all, opened the way for the party in power to harass, or even outlaw, its more irksome rivals.
A change in Article 54 reduced the number of days for which the National Assembly must meet each year from 130 to 90. A new clause in Article 200 explained that judges might be transferred from one high court to another (provided for in the earlier clauses) to increase the number of judges in the latter court.
The second amendment (September 1974) places the Ahmadis beyond the pale of Islam. A new clause added to Article 260 provides that a person who does not believe in the "absolute and unqualified finality" of the prophethood of Muhammad (PBUH), or accepts the claim of any other person to that station, or recognizes such a claimant as a religious reformer, "is not a Muslim for the purposes of the Constitution and the law."
The Ahmadis would henceforth be treated as a non-Muslim minority. A group of the ulema sought an injunction from the Lahore High Court (Mobashir v. Bokhari, 1976) that would forbid the Ahmadis to call their place of worship a masjid, announce the call to prayer (azan), perform Muslim prayer, or recite the Quran. The court denied the request, saying that "it is not the province of the court to pronounce on the truth of religious tenets or to regulate religious rites or ceremonies," and that everyone was free to worship according to the dictates of his own conscience.
But this attitude of tolerance would soon give way to one of coercion. A martial law order on April 26, 1984 incorporated the ulema's plea regarding the naming of the Ahmadi places of worship and the issuance of the call to prayer. The Ahmadis were also forbidden to preach their religion, pose as Muslims, or "outrage the religious sentiments of Muslims" in any manner. These restrictions were made a part of the penal code as sections 298 B and C. The Federal Shariat Court upheld the martial law order.
A high court judge declared that the recitation of the Islamic affirmation of faith (Kalima) and the invocation of God's blessing upon Prophet Muhammad on the part of an Ahmadi would be a criminal offence. On July 3, 1993, the Supreme Court held that the Ahmadis could not be allowed to "usurp" Islamic epithets and terms. Nor could they practise Islamic customs and rites.
The Second Amendment was passed in the wake of an intense anti-Ahmadiya movement (May-June, 1974), during which the Islamic parties and their allies demanded the passage of a law declaring the Ahmadis as a non-Muslim minority. Mr Bhutto did not really want to take this issue to the National Assembly. In several of his addresses to the nation, he pleaded for patience. He reasoned that the mater should be settled later, at some more appropriate time, in calm deliberation,"without hatred and without bigotry." But as the agitation gathered momentum, he had to give in.
An interesting question comes to mind. Some of the most celebrated modern scholars of Islam have been Christians and Jews. We read and cite their works, quite often approvingly. Many of us held Professor Annemarie Schimmel, an authority on Sufism, in great affection. We are happy to hear non-Muslims attest to the greatness of our Prophet.
We applauded profusely when Mohinder Singh Bedi, a well known Sikh poet, recited his poems in praise of the Prophet. Normally, we are flattered to see a non-Muslim dress, speak, and act like a Muslim. Why then do we become so furious when an Ahmadi speaks and acts like a Muslim while we are pleased with similar conduct on the part of a Sikh or a Christian?
The third amendment (February 1975) enlarged the scope of preventive detention (Article 10). A person could be held not only if he worked as an enemy agent (as originally provided) but also if he engaged in "anti-national" activity or worked against the state's security and integrity. The period of time during which a detained person must be informed of the grounds for his detention was increased from seven days to 15. The detaining authority could now take as long as three months (instead of one) to refer his case to a review board.
The fourth amendment (November 1975) added economic reforms to the list of laws in the First Schedule exempted from the operation of fundamental rights (Article 8). Article 17 was amended to make the right to form associations (e.g., political parties) subject to restrictions in the interest of the country's sovereignty and integrity (in addition to morality and public order).
Incitement to the commission of an offence was added to the limitations on the freedom of speech in Article 19. A new clause (3A) was added to Article 199 to deny the high courts the authority to prohibit the holding of a person in preventive detention or grant bail to him.
The fifth amendment (September 1976) made changes in as many as ten articles. We shall mention below only the ones that would appear to have been the more significant. A new clause added to Article 179 provided that the "Chief Justice of Pakistan shall, unless he attains the age of 65 sooner, serve for a term of five years." Upon the expiry of the aforesaid term, he could retire or serve as the most senior judge in the Supreme Court. Anyone who had once served as chief justice could not be appointed to the same post again.
Amended Article 180 authorized the president to appoint any one of the serving judges as the chief justice without regard to his seniority. Article 195 made provision for the retirement of the high court chief justices, or their continuation in service, similar to the one made for the chief justice of Pakistan. Article 199, once again, excluded judicial intervention in cases of preventive detention.
An addition to Article 200 authorized the president to transfer a judge from one high court to another without eliciting his consent if the transfer was to be effective for one year at a time. The revised version of Article 206 stipulated that a high court judge who declined to accept elevation to the Supreme Court would be deemed to have tendered his resignation.
The sixth amendment (December 1976) added provisions to Articles 179 and 195, enabling the chief justice of Pakistan and the chief justices of the high courts to remain in their posts beyond the prescribed retirement age (65 and 62 respectively) if they had not yet completed their designated tenure of five years.
The seventh amendment (May 1977) added Article 96A to enable the prime minister to elicit a vote of confidence from the people of Pakistan in a referendum to be authorized by the president at his request and to be conducted by a referendum commission. If the prime minister failed to receive approval from a majority of the voters, he would be deemed to have tendered his resignation. But as events unfolded in the late spring and early summer of 1977, the occasion to hold such a referendum never did arise.
A new clause added to Article 245 excluded the courts from questioning the federal government's directions to the armed forces, when called upon to act in aid of civil authority, and the actions taken by them in carrying out their assigned mission.
It will be seen that in none of the cases described above were the changes made for compelling reasons. Most of them issued from a basic intolerance of dissent. The citizen's fundamental rights, already subject to "reasonable restrictions" were further restricted on vague grounds such as morality, public order, and the state's sovereignty and integrity. Thus, they opened the door wider to arbitrariness on the part of the executive.
The amendments were also intended to reduce the role of organs of the state other than the executive. The number of days the National Assembly must meet each year to debate policy issues and scrutinize the government's performance was reduced from 120 to 90. Preventive detention cases were taken out of the courts' jurisdiction.
Two of the amendments enabled the executive to manipulate the higher judiciary by playing around with the retirement age and tenure of chief justices and by transferring judges from one high court to another. These were evidently intended to send away unwanted judges, and to keep the preferred ones, before or beyond their due time of retirement.
The prime minister was invested with abundant authority and power under the 1973 Constitution in its original version. He was named head of the executive; his ministers served during his pleasure, and the president could do nothing without his consent. But even this abundance did not satisfy Mr Zulfikar Ali Bhutto. He wanted to be the master of all he surveyed with no rivals or dissidents in sight. For this quest for power after power he, his party, and his people ended up paying a huge price.
Email: anwarsyed@cox.net
The prospects of confrontation
President Musharraf has finally decided that he must keep his army post and also keep the present parliament going till the year 2007. In one stroke, he has brought all the political elements opposed to him on to one platform. His nascent conciliation plan now seems to be heading towards a worse form of confrontation.
The MMA religious alliance, which helped him become a constitutional president for five years, was pressing him to take off his uniform before the end of the year. The Alliance for the Restoration of Democracy (ARD) showed little anxiety about his uniform. It asked for early elections. Before the end of the year, he was required only to give reasons for not giving up his army post. Why at the same time he should announce that the general elections would not be held before 2007 is difficult to appreciate.
Keeping or leaving the army job was entirely the president's decision. For him to announce, at the same time, that mid-term elections would not be held in any case was both constitutionally improper and politically imprudent. That decision lay with the prime minister. If the prime minister were to advise the president at any time before 2007 to dissolve the parliament he would be constitutionally obliged to do so.
Paradoxically, in Thursday's broadcast, the president also solemnly affirmed that he would never violate the Constitution, and yet in the next breath went on to violate it by ruling out elections before 2007. He also contradicted his other statement in the broadcast that he had transferred powers to an elected government within the time period fixed by the Supreme Court. The powers transferred include the power of the prime minister that binds the president to dissolve the parliament whenever so advised.
It would be fatal even to our peculiar brand of parliamentary system if the people were to believe that the fate of the parliament is determined not by the prime minister or by the members themselves but by the president. Even under the Constitution, as amended on his coaxing, the president under certain circumstances and with certain conditions can dissolve the parliament, but cannot compel it to complete its term once the prime minister has decided to hold fresh elections.
This constitutional impropriety apart, by lumping the elections with the "uniform" issue the president has shut the door of cooperation on the PPP. Internal and external circumstances had placed President Musharraf in a strong position to negotiate a working relationship or, at least, a peaceful coexistence with PPP.
Squabbles within the ruling coalition, the goodwill generated through by the release of Asif Zardari and the growing hostility of MMA all went in favour of the president. The prime minister, if not all of his ministers, would also have been temperamentally more at ease in dealing with the moderate men of the PPP rather than with the radical maulanas of the right.
It has been a strange feature of Pakistan's politics under General Musharraf that parties with different social outlooks and political programmes have been joining forces for a negative cause. Now that the orthodox religious groups had chosen to desert a moderate and liberal Musharraf, he should have grasped this opportunity to win over the people in other parties who were of his own outlook on life. Instead, he has driven them away to make common cause against him with the orthodoxy.
Political groupings of the past did not represent common aspirations or programmes but indicated a tussle for power. So do the new ones how emerging. The common people, thus, cannot be faulted nor accused of cynicism for having come to believe that every leader, whatever his background or affiliation, is for himself alone and not for their welfare.
Banking on the MMA for political support obviously did not help Musharraf to eradicate religious extremism that throws up terrorists nor in the repeal of repressive laws or the ban of social practices which have internationally exposed Pakistan to the charge of being a fundamentalist, failing state. It was the right opportunity for Musharraf, and also for the liberal elements in politics, to collaborate to change that perception and image.
An army general heading a civilian government in Pakistan no longer hurts the world's or America's democratic conscience, for he happens to be an effective ally in the war against terror. The Commonwealth that had suspended Pakistan's membership had not invoked sanctions and looks embarrassingly the other way. India also appears more confident and consistent in its dealings with Musharraf than it did with past civilian heads of government. All in all, Musharraf now has fewer detractors abroad than at home.
Before the positions assumed after the president's broadcast harden, the fact that requires cool consideration by all those involved in the fray is that neither the current assorted lot can keep the government going for three more years nor can the PPP-PML (N), backed by the MMA, bring it down through force. However, while this confrontation lasts the country will remain stuck in the quagmire of violent extremism and poverty. The media and think tanks of the West that matter have already started issuing warnings that if Musharraf were to be violently removed, Pakistan would plunge into turmoil.
That plunge could be averted by bringing moderation and sanity back into public life by the Musharraf - Shaukat Aziz government working in tandem with middle-of-the-road moderate political forces, currently arrayed against the administration. Together, they could work out a schedule for establishing a system through free and fair elections which is truly compatible with democracy and human rights.
Bilateralism and the Kashmir dispute
Bilateralism is always sought by the stronger power, mediation by the weak. In 1962, India sought mediation by the Colombo Powers on the dispute with China.
- A.G. Noorani
This is no getting away from Mao Zedong's dictum: "Power grows from the barrel of a gun". Pakistan is contained by India on Kashmir, as India is by China on its border dispute, and China by America on Taiwan. America is now contained by its $ 600 billion trade deficit and a war it cannot win.
So why should we be dismayed when Manmohan Singh said on November 17 "no redrawing of the international border and no redrawing of boundaries on the basis of religion". The small print of the Shimla Accord largely unnoticed at the time - bilateralism, - sets the goal post for India on Kashmir: no change in India's sovereign status on Kashmir. Does this knock the bottom out of Pakistan's quest for an "honourable settlement in accordance with the wishes of the Kashmiri people?". Only time will tell.
Abdul Ghafoor Noorani, the well-known Indian journalist, in a recent article spells out the South Tyrol dispute resolution between Austria and Italy. Some elements of this imbroglio are relevant to the Kashmir dispute and could serve as a guide.
German-speaking South Tyrol was part of the old Austro-Hungarian empire. On Germany's defeat and dismemberment of the Austro-Hungarian empire in 1918, the great powers awarded South Tyrol up to the Brenner Pass to Italy as a war trophy. Italy imposed an iron curtain on its newly acquired possession, making school instruction compulsory in Italian. Even carrier pigeons were not allowed to fly across from the south to North Tyrol. The SVP, liberation party of the south Tyroleans was founded in May 1945 with the following agenda:
"To fight for the recognition of the cultural, linguistic and economic rights of the South Tyroleans on the basis of democratic principles after twenty-five years of oppression by Fascism and National Socialism. To empower its representatives - foreswearing the use of all illegal methods - to advocate before the Allied Powers the claim of the South Tyrolean people to exercise its right of self-determination".
Various strategies were employed by the Italians to contain the South Tyrolese. In 1948 it joined South Tyrol to the adjacent Italian province of Trentino and granted the amalgamated region autonomy. South Tyrol was out-voted (25) in the region by Trentino.
The SVP moderates were swept out of office, violence followed, Austria took its case to the UN and predictably got no relief.
Secret negotiations followed between Austria and Italy and on May 13, 1969, they agreed to identify 137 South Tyrolese grievances and work towards their removal. The keystone in this arch of reconciliation was that 18 points were given international recognition.
The new autonomy statute of 1972 kept the region intact but gave South Tyrol autonomy. The pivotal point which finally drew the disputants together was to give the right to the South Tyrolese government to move the International Court of Justice in The Hague, if differences arose on the autonomy agreement.
The package, initially identified in 1969, was not fully implemented until 1992 - nearly three quarters of a century after South Tyrol's annexation by Italy. Italian nationalism is satisfied that South Tyrol remains part of Italy.
The Tyrolese have complete freedom in the economic, social and cultural fields and, with both Austria and Italy being in the common market, foreign affairs and currency are taken care of by the supra-union. The Austrians feel vindicated because it has established a locus standi for itself in South Tyrol, albeit indirectly.
What we may learn from the South Tyrol conflict resolution is that autonomy subject to international safeguards is a recognized form of self-determination.
The word "autonomy" for a Kashmiri, even if he be a mild nationalist, will most likely evoke a bitter laugh. The Kashmiris have been cheated out of autonomy as guaranteed by Article 370 of the Indian constitution not once but twice.
The Kashmiris of the Valley today are as alienated from the India as were the East European states from the Soviet Union before the fall of the Berlin Wall. It is not an exaggeration to say that all hell was let loose on a placid Kashmiri population by the Indian army after the rigged Kashmir election of 1987.
A Kashmiri friend summed up this thus: "The Valley is like a rat trap... one false move and the trap guillotines your head". A recent publication, 'Kashmir - The Untold Story' by Humra Quraishi, gives a verbatim account of life in the Valley this past decade. It is not surprising that the terrorist is or was perceived by the Muslim population as the wrath of God on a cruel and merciless army of occupation.
India, once the land of Mahatma Gandhi, which won its freedom on the creed of non-violence, has done a huge disservice to itself by its conduct in Kashmir since 1987. It has showed no respect for the Gandhian legacy. Even the grisly bearded Salahuddin who heads the main Kashmiris liberation group conceded that he believed in Indian secularism until the rigged election of 1987. Remember during the 1965 'Operation Gibraltar' it was the ordinary Kashmiri who turned in our unwanted 'liberators' to the local police.
There are other precedents where autonomy has resolved a nationalist conflict between nations.
The Aaland islands are predominantly Swedish but under the sovereignty of Finland. Sweden withdrew its historical claims to the Islands, after the Finn's passed autonomy statutes - the latest of which was granted on August 16. 1991, giving wide-ranging autonomy to the Aalanders. The difference between the Finns and the Indians is that the Finns can be trusted to keep their word; the Indians did not keep their commitment on Kashmir autonomy.
Do these precedents of win-win solutions have a relevance to our situation? Will the Indians, who are ever protective of their sovereign rights and allergic to any form of foreign involvement or arbitration, permit themselves to be bound by an international jurisdiction?
Perhaps, not at the moment, but 'may be' if a series of successes on lesser issues like Baglihar Dam, demilitarization of Siachin, trade and mutually agreed CBMs can be achieved. After all success breeds success. The Indian economy today is a success story. Does India not accept foreign jurisdiction in commercial matters? Given success in reaching agreements on lesser issues a more confident India is likely to emerge. Trust has to be established slowly. The Kargil episode damaged Indian trust in us.
The material and psychological costs of holding onto an alienated territory must weigh heavily on the Indian mind. Pakistan can help offer a way out to India from its own predicament.
Given below are some points for consideration in the ongoing debate on 'options':
* India should recognize Pakistan's interest in the Valley. No loss of sovereignty is involved. The autonomy as granted by its constitution on Kashmir should be enforced and made justiciable. The Indian higher courts have not apparently intervened in the past. India with its new confidence should be encouraged not take a restrictive view of sovereignty.
* Pakistan and in particular its public must reconcile to the bitter reality that in the foreseeable future there is little hope of India agreeing to joint sovereignty or a UN trusteeship for the Valley. Changing the status of Kashmir will call for a constitutional amendment, requiring a two-third-majority in Parliament to approve.
* Where I differ from Noorani's thesis is that an autonomous status for the old Jammu and Kashmir state is not realistic. The problem is strictly Valley-centric. Full-scope autonomy for all parts of the old Jammu and Kashmir state is a probable idea but appears impractical in the current situation.
Ladakh and major parts of Jammu are more or less securely embedded in the Indian Union, as are Azad Kashmir and the Northern Regions in Pakistan. Pakistan may consider holding a referendum giving the choice of independence, autonomy or full integration in Pakistan to Azad Kashmir and the Northern Regions, with the UN to conduct this exercise. These territories cannot remain in limbo for ever.
* The Indians should feel confident about holding a similar exercise in Ladakh and Jammu to determine the will of the people. If they don't, their refusal will be contrary to Pakistan's openness.
* One other lesson we can learn from the South Tyrol case is that SVP - local nationalist party - was always united as opposed to APHC, which is not. It was kept out of the negotiations between Austria and Italy by design. They were inducted into the process once an agreement was reached between Austria and Italy in principle.
The movement of icebergs is dreadfully slow in the initial stages but a stage is reached after years where the billions of binding units are about to break with elemental force in a rapid movement. A critical mass is developed before it can burst forth. Our critical mass is the people of the two countries and their linguistic and cultural commonalities. A unique case of a divided people, uniting to remove a flashpoint of conflict.
The writer is a member of the National Assembly.
E-mail: murbr@isb.paknet.com.pk