Polls & madressah ‘sanads’

TO a great extent, a free and fair election next year (or whenever it is held) will depend on the screening of candidates whose ‘madressah sanads’ are not equivalent to graduation degrees. The facility enjoyed by a large number of such candidates to enter the contest for the national and provincial assembly seats in 2002, and the success of many of them, was a major reason for undermining public confidence in the legitimacy of the electoral process. Three and a half years down the road the matter is still hanging fire.

The highly controversial deviation from time-honoured election principle to the effect that only holders of graduation or equivalent degrees could contest national or provincial-level elections attracted severe censure when stories of acquisition of certificates of dubious value by candidates were received from all parts of the country. Those responsible for protecting the electoral process from unsavoury speculation did nothing even though their own integrity too was compromised.

Then, in May 2003, an Islamabad lawyer filed a petition in the Supreme Court for the disqualification of 68 members of the federal and provincial legislatures on the ground that their ‘madaris sanads’ were not equivalent to graduation degrees. These parliamentarians, the petitioner argued, were not qualified to continue in their elective offices as they were not eligible to enter the electoral contest. The case is yet to be decided.

While the case mentioned above was pending, an identical matter was decided by an election tribunal of the Peshawar High Court. A former federal law minister had challenged his rival’s election from a Kohat (NWFP) constituency of the National Assembly on the ground that the latter’s certificate of Shahadat-i-Alami fil-Uloom-i-Arbia, on which he had relied for his eligibility, was not equivalent to graduation. The tribunal was told by the federation (through the attorney-general) and the NWFP (through its Advocate-general) that the petitioner was right. It declared the Kohat MNA’s election void.

The argument advanced by the federal and NWFP law officers was that the certificates granted by the Wifaqul Madaris and Tanzimul Madaris had been declared equivalent to degrees awarded by universities only to the extent that their holders could teach religious courses, and that too mostly at the institutions where they had studied. This concessional grant of equivalence was not valid for any other purpose.

The election tribunal’s verdict caused quite a stir as it raised doubts about the entitlement of scores of parliamentarians to retain their seats in the elected chambers. The Election Commission promptly notified a by-election to the Kohat NA seat. This notification was, however, soon cancelled when the Supreme Court suspended the election tribunal’s order and fixed the case for hearing in the second week of September (2003) along with the petition in which the election of 68 parliamentarians had been challenged. That case, too, is yet to be decided.

That it is not easy to dispose of election matters, especially those that touch on a regime’s basic edifice, is known. Despite a series of amendments to the Representation of the People Act, whereby the time allowed to decide election disputes was scaled down to a few months, matters do linger on for years. After all, not all the petitions regarding disputes in the 1988 election were decided.

One may also recall a non-Muslim candidate’s challenge in the early 1990s to the application of separate electorates to provincial assembly elections, thanks to a grand slip by Gen. Zia’s none-too-efficient draftsmen. The Chief Justice of the country granted the petitioner the relief available to him in law but later on reversed the order in his chamber. The case was never decided. One supposes the petition became infructuous in 2002, having borne fruit as they say.

Thus, not many eyebrows were raised when the petition against three score and more parliamentarians remained unheard for a pretty long time. One did wonder, though, whether courts delays could in some cases be described as decisions in favour of status quo by indecision. Maybe, that is the reason law reform bodies have been keen to limit the life of injunctions granted by the superior courts.

In any case, the matter of ‘madressah sanads’ remained out of newspaper columns as well as the official roster of concerns till August last year. On the eve of local government elections many cases came up before returning officers and district returning officers in which the candidates’ eligibility to contest election to nazim and naib nazim slots was challenged on the ground that their ‘sanads’ (asnad) were not equivalent to matriculation certificate. In some cases the objection was upheld, in some others it was dismissed.

Appeals against acceptance and rejection of nomination papers of ‘sanad’ holders were heard by the high courts of Lahore. Peshawar and Balochistan. While the Lahore High Court rejected the plea that the certificate of Shahadat-us-Sanviya was equivalent to matric certificate, the Peshawar and Balochistan High Courts ruled to the contrary. When the issue came up before the Supreme Court it first overruled the Lahore High Court finding and then, shortly afterwards, upheld its (Lahore’s) verdict. The field is now held by the latter judgment of the apex court.(PLD,SC, 2005 P 858).

In this case the Supreme Court examined the curricula of ‘madaris’, noted the existence of unrecognised religious seminaries alongside the recognized ones, noted the system of grading of ‘madressah sanads’ by the University Grants Commission (now Higher Education Commission) in case of high ‘sanads’ (where equivalence with BA and MA degrees was claimed) and Inter-Board Committee of Chairmen (IBCC) in case of lower order ‘sanads’ (where equivalence with matric and FA certificates was sought), and heard the attorney-general repeating the arguments he had advanced in 2003. The court found:

1. “Thus, it is a fact that from 1982 onwards the UGC by means of various notifications referred to herein above had been dealing with the cases of a large number of students who received education in ‘Deeni Madaris’ and were granted equivalence certificate subject to passing examination of the additional subjects at the B.A. level.” The latest notification noted by the court (in another case) was of July 25, 2002. Without qualifying in additional subjects a ‘sanad’ was good for teaching purposes only.

2. Only degrees awarded by chartered universities and recognized ‘madaris’ were valid. The court felt sorry for students who joined unrecognised seminaries.

3. It was incumbent upon a candidate seeking election on the basis of a ‘sanad’ to produce an equivalence certificate.

4. An appellant’s counsel had argued that candidates for the offices of nazim and naib nazim could contest polls on the strength of ‘sanads’ just as many ‘sanad’ holders had been allowed to contest election to national and provincial assemblies in 2002 under an Election Commission notification. The court observed that at the moment it was concerned with matters falling under the Local government Ordinance and that the validity or otherwise of the Election Commission’s notification would be considered separately at appropriate time.

The court finally held:

1. A person, who holds a high ‘sanad’ from a seminary institution recognized by UGC/HEC and has qualified in additional subjects mentioned in UGC notification, and about which an equivalence certificate has been issued, can use his ‘sanad’ for the purpose of employment and for any other purpose, “including the election of local government.”

2. A person, who holds a lower degree (sanviya) ‘sanad’ from a recognized seminary, has passed in additional subjects notified by IBCC, and has obtained an equivalence certificate from IBCC “shall be qualified to contest the local government election.”

The law, as clearly laid down in this judgment, is that candidates who have obtained ‘sanads’ from unrecognised seminaries, have not passed examination in additional subjects, and have not obtained equivalence certificates from HEC/IBCC cannot claim to possess degrees equivalent to graduation and matric. The logical conclusion is obvious.

Soon after the latest SC judgment was reported in the press the lawyer who had approached the court in 2003 moved a petition, fruitless so far, for early hearing. It is possible that no decision can be reached about the parliamentarians whose tenure will in any case end next year. But there is obviously something rotten in a system if the people are not sure that all members of parliament are legitimate occupants of their seats.

Incidentally, the Supreme Court verdict of August 2005 did not affect candidates who did not pass the criterion laid down by the court. The Election Commission said there was no time to intervene in such cases. Parties aggrieved could go to election tribunals — another instance of knowingly allowing a process outside the law and telling the aggrieved to settle for years of litigation.

The question now is: What is going to be done for the next general election: the sanad-holders will be in or will it be possible to tell them that they are out? (All this discussion is without any reservations on the merits or otherwise of madressah sanads and university degrees.)

The Election Commission has to clear the mess it created in 2002 and settle the matter of ‘sanads’ in a manner which is not only in harmony with the law but is also in accordance with democratic norms. But this will be another piece of patchwork no better than the handiwork of authoritarian rulers.

The real issue is that the legitimacy of parliament and the electoral process has been gravely jeopardised by mindless changes in the ground rules, carried out in the narrow interests of the establishment and its cohorts.

The seeds of rot lie in the amendments to the election laws made in 2002, including and especially the condition that only graduates could be allowed to sit in legislatures. If a return to democratic governance is honestly intended, all such innovations must be cancelled and the system in vogue for decades before 2002 revived — that is, everybody who is a voter should be entitled to contest election subject only to tests of age and sanity (although the applicability of the latter test cannot be easily guaranteed).

The Haditha massacre

THE killing of 24 people, including children, inside their homes in the Iraqi town of Haditha is at last receiving widespread media attention in the US and Britain. But it is thanks to coincidence that the story ever came to light.

News of the November 2005 massacre would have been buried alongside many other stories of occupation atrocities had it not been for the presence of mind of an Iraqi journalist, who photographed the horrific scenes before the bodies were buried, and the perseverance of an Iraqi lawyer. For US military crimes to be exposed takes overwhelming evidence, massive perseverance and a good deal of luck. On the other hand, mere speculation from occupation and pro-occupation Iraqi sources is routinely reported as an accurate reflection of events.

Take the report of the killing of three members of the same family in Samarra, which first appeared in Iraq a few weeks back and resurfaced following the publicity around the Haditha massacre. According to the Iraqi news network, US forces killed the three in a raid on the family home: Zaidan Khalaf confirmed that the soldiers had killed his 60-year-old wife Khairiya, son Khalid and daughter Ina’am.

I have come across scores of stories in the Iraqi press of unarmed civilians killed by US-led occupation forces, some backed up by video footage. But few make it into the western media. In this context, Haditha is made to seem exceptional, and is always diminished by the obligatory, nauseating ministerial comment that things were worse under Saddam.

Why we should welcome an inquiry led by Donald Rumsfeld’s Pentagon is a mystery, given its determination to avoid investigating the involvement of senior officers in the torture and killing of Iraqi detainees at Abu Ghraib prison. The culture of indiscriminate violence that Iraqis have long insisted permeates the US-led occupation forces is in any case gradually being exposed by the testimony of US soldiers.

One such soldier, Specialist Jody Casey, a scout sniper in Baquba who witnessed civilians being killed by soldiers, said recently bombs “go off and you just zap any farmer that is close to you”. Soldiers were told to carry shovels in vehicles so they could plant them on civilian victims, he said, to make it look like they were digging to set up roadside bombs. Specialist Michael Blake, who served in Balad, said it was common practice to “shoot up the landscape or anything that moved” after an explosion.

Meanwhile, we are inundated with stories about Sunnis killing Shias, Shias killing Sunnis, killing Kurds, killing Turkomans, while regular anti-sectarian demonstrations are ignored: 10 days ago, for example, there was a large rally in the predominantly Shia town of Balad in solidarity with the nearby Sunni town of Dhullu’iya, under siege by US forces. The reality is that the occupation is detested by most Iraqis. US-led forces are surrounded by popular hostility, and are operating completely outside Iraqi “sovereign” jurisdiction. No Pentagon courses in the ethics of how and how not to kill Iraqis will change this.

What the occupation forces experience on the ground is a consequence of what their political masters decide in Washington and London. The indiscriminate harming of Iraqis has, in practice, been the modus operandi of US-led policy towards Iraq since 1990. There is a continuity between this bloody occupation and the indiscriminate 13 years of US-led sanctions that preceded it - which also killed thousands of Iraqis.

When will the point come for the media and parliament to declare that the occupation of Iraq is a colossal and unacceptable brutality that must be immediately brought to an end? —Dawn/Guardian Service

The writer was a political exile from Saddam’s regime and is a senior lecturer at London Metropolitan University.

Telling it like it is

KOFI ANNAN was right to sound a warning note when the United Nations conference on Aids ended on Friday without properly tackling one of the core issues in the global struggle against this terrible epidemic: simply telling it like it is.

The UN secretary-general upbraided those countries which refused to sign up to a declaration acknowledging that gay men, prostitutes and drug users who inject are at risk and need special protection. They were lumped together as “vulnerable groups”. Since education about prevention — condom use and clean needles — lies at the heart of any Aids strategy, the refusal of conservatives, in Africa, the Muslim world and elsewhere, to acknowledge reality is plain foolish. Preaching sexual abstinence and fidelity, as many Americans do, is no substitute.

Nelson Mandela was praised for his courage last year for speaking publicly about the death of his son from the disease. But by then South Africa’s HIV/Aids rate was already among the highest in the world and millions were aware of or affected by the epidemic. Taboos can kill, whether they are cultural, religious or social. And the right words matter, because they can help harness energy and marshal resources.

The bare statistics today, 25 years since Aids was first identified as a mysterious virus affecting gay men in California, need no embellishment. No fewer than 25 million have already died. Infection rates are slowing, according to UN figures, though 38.6 million people are now living with HIV worldwide.

In 2005 approximately 4.1 million people became infected with the virus, while about 2.8 million died of Aids-related illnesses. Every day 8,500 people die and 13,500 become infected. Women continue to be increasingly vulnerable to the disease, with 17 million infected. Of those, over three-quarters live in sub-Saharan Africa, where most of those infected are also married. India has overtaken South Africa as the country with the largest number of people with HIV/Aids - estimated at 5.7 million. Infection rates are also rising in eastern Europe and central Asia.

Attitudes are slow to shift, partly because the reality of HIV/Aids is still hard to grasp. Some call it a “long wave” phenomenon, a “slowly unfolding nightmare” akin to global warming, whose impact, often geographically distant, unfolds over many decades and has implications that go beyond any single country. Africa’s aid crisis, fuelled by declining adult life expectancy, increasing numbers of orphans and poor socialisation, could help tip some weak states into disorder and compete failure.

Last week’s UN general assembly meeting was a follow-up to a 2001 session which set priorities for tackling the crisis. No vaccine is yet available, and antiretroviral drug treatment, while getting cheaper, is still only available to under half of those infected, posing a challenge that is simultaneously urgent and long-term — “running a marathon at the pace of a sprint” in the wise words of Peter Piot, head of the UNAids programme. UNAids says $20-23bn will be needed by 2010, but the New York meeting only “recognised” that fact, while failing to set hard targets for funding, treatment, care or prevention in countries where poverty, misery and hunger make all these tasks doubly hard.

Still, raising the cash may be the easy bit. As Friday’s UN declaration put it, prevention strategies have to “take account of local circumstances, ethics and cultural values”. That includes a US requirement for a “loyalty oath” from Aids grantees opposing prostitution - making it effectively impossible to educate sex workers on HIV transmission.

Aids has been compared to the Black Death that devastated Europe in the 14th century. The world has woken up to the fact that this modern scourge has already lasted much longer. But it badly needs to stay on the case. With some projections suggesting 150 million could be infected by the time the virus is half a century old, Mr Annan was correct in saying that “silence is deadly”.

—The Guardian, London

Civil-military ties in India

INDIAN democracy has many critics, but none can deny that New Delhi has managed to establish firm civilian control over its armed forces. The Indian armed forces are professional as per the definition of Samuel Huntington who describes a professional military as having a corporate ethos and conforming to civilian domination. The adherence to civilian control is a significant factor that ensures professionalism in the military.

Historically, the Indian military has abided by the principle of civilian supremacy and of non-interference in politics. The army chief during Indira Gandhi’s emergency, for instance, refused to intervene in politics on the prime minister’s behalf. As expected of a professional soldier, the general refused to do Indira Gandhi’s bidding. According to an American writer of Indian origin, Apurba Kundu, the balance in India’s civil-military relations can be attributed to the Hindu culture.

Interestingly, a number of Pakistan army officers also voice similar views. The idea is that the Indian caste system has a bearing on the military’s strict discipline and subservience to civilian authorities. In a caste-oriented society, the lower castes adhere to the control and domination of superior castes/classes. However, this explanation is rather simplistic.

Over the years, there has been a fundamental change in the social composition of the Indian armed forces. It is the lower and middle class people that join the armed forces. These social classes do not represent the upper castes.

The fact of the matter is that the balance in Indian civil-military relations is the outcome of deliberate thinking on the part of both the civilian and military leadership to keep the military out of political affairs. Although India’s first prime minister, Jawaharlal Nehru, can be blamed for his geopolitical shortsightedness that led to bitter relations with Mohammad Ali Jinnah and the Muslim elite, the Indian leader must be appreciated for giving serious thought to the relationship amongst various key players before the partition of India took place.

The Indian leadership of the early years carefully planned to keep the military out of politics. This is not to suggest that the Indian leadership did not have elitist tendencies. However, a conscious choice was made to rule through the civilian bureaucracy rather than the military. In 1951, Nehru encouraged one of the top civilian bureaucrats, S.M. Patel, to start a ‘two-file’ system. According to this concept, all files from the service headquarters would terminate at the ministry of defence that initiated its own file to be sent to the political leadership. The idea was to establish civilian domination over the military. Moreover, civilian bureaucrats manned the ministry of defence. Unlike Pakistan where additional secretaries are retired or serving military officers, the senior bureaucrats in the Indian ministry of defence are civilians. In fact, the military generals in India grudge the fact that their views are not properly heard or represented.

Moreover, the civilian bureaucracy appropriated the right to represent the military’s views. All postings and promotions, especially in the higher ranks, are managed by the ministry of defence. This authority is part of the norms and practices established after partition rather than written in some book of rules and regulations. Some years ago, the then Indian naval chief, Admiral Bhagwat, tried to challenge the norm by insisting on his authority to appoint his vice-chief without consulting the defence ministry.

Bhagwat’s approach led to tension and the BJP-led government finally sacked the naval chief. The political leadership upheld the administrative tradition despite that fact that the Bharatiya Janata Party was far more eager to build up the armed forces and take on the military as a junior partner in implementing the political party’s aggressive geopolitical designs.

Surely, establishing norms for civil-military relations was not a smooth process. Political leaders such as Krishna Menon had their own ambitions to use the military for political ends. Menon, the minister of defence under Nehru, politicised the military to a large extent. He appointed General Kaul as the area commander at the Chinese border. The 1962 war with China not only brought India disgrace, but also made the political and civilian leadership understand the efficacy of keeping the military politically neutral.

The war history of 1962, which is a restricted document, highlights the implications of the politicisation of the Indian armed forces. Moreover, it was instructive in terms of highlighting the weaknesses in India’s military buildup as an instrumental factor in the country’s defeat. The report was made available to the civilian and political leadership and the civil bureaucracy.

It must be noted that the political leadership is quite sensitive in other aspects and the military enjoys autonomy in operational matters. The armed forces’ political and social space is honoured and respected. The government is sensitive to the military’s opinion in matters of operational planning. For instance, the Indian government will not ignore the army’s suggestion regarding the issue of pulling back forces from Siachen. In addition, the military is given the choicest areas for cantonments and certain facilities as well.

However, such advantages are far less than what is enjoyed by a number of prominent militaries in other South Asian states. The perks and privileges of the Indian armed forces certainly do not include numerous pieces of rural and urban real estate. Moreover, beyond a certain point the military is not allowed to intrude civilian space.

For instance, the principle of civilian authority is strictly established. A recent example of the government enforcing the principle of civilian supremacy relates to the right of information act. The army chief was strictly admonished for jumping the gun and instructing his service to follow the tradition of secrecy after the act was passed. The general was curtly reminded that it was parliament and the defence ministry that had the authority to issue such instructions to the service rather than the chief.

In another case, a senior general suggested that the army should have greater power than civilian authorities in handling governance in areas where the military was involved in internal security matters. Neither the military nor the civilian government encouraged this proposal. New Delhi’s perspective was that since the army already had powers under the armed forces special powers act, there was no point in according it greater authority.

It must also be mentioned that over the years, civil-military relations in India have undergone a subtle change. One can see a civil-military partnership emerging that can be attributed primarily to the former BJP leadership that wanted to slightly upgrade the military’s position in defence decision-making. This, one may argue, is a need of the time.

Given India’s geopolitical ambitions, relations between the military and civilian players have to be revised to cater to the strategic environment. However, such a change does not mean that the military will ever be allowed to establish political control. The democratic system is pretty resilient to prospects of military domination. In fact, other players such as the police, the Border Security Force and the Central Reserve Police Force constantly question the military’s ability to handle internal security issues. Of course, there is the matter of resizing the armed forces, an issue that New Delhi might not be able to ignore for too long.

Although some Praetorian tendencies are evident in the Indian leadership, the civilian players are resolved not to involve the military in the quest for political power. What is more important, the political leaders have generally upheld this principle for most of the country’s history.