THE Islamabad Declaration adopted at the International Judicial Conference on Independence Day has caused excitement in many a Pakistani heart. It may not be too much to hope that justice may after all be guaranteed for all, including the traditionally marginalised citizens, or that this promise may evoke a better response from the decision-makers than was the case with pledges such as ‘health for all’ and ‘education for all.’

Other things apart, the declaration has not come a day too soon, for the massive erosion of public confidence in the system of justice is no secret, nor are two opinions possible on the need to reverse this trend. Fortunately, the declaration has concretised to a considerable extent what may be described as the people’s expectations in the area of dispensation of justice. Besides promising women freedom from gender bias and children all due protection, the declaration affirms the decisive role democracy and the rule of law can play in combating terrorism and overcoming the fear generated by terror.

It also pleads for the judiciary’s intervention in neglected issues or subjects regarded as taboo. Newspaper summaries of the declaration do not contain a meaningful reference to the minorities’ right to justice and this subject may have been covered in its text, otherwise it could be considered a serious and most regrettable omission.

Since the conference was organised to mark the golden jubilee of the founding of the Supreme Court, the occasion apparently offered an opportunity to examine the judiciary’s role in the affairs of the state and its impact on the basic rights of the people. This is, in a way, reflected in the selection of themes included in the conference declaration, which was, incidentally, drafted by three honourable judges of the Supreme Court of Pakistan. For the same reason, by becoming a party to the declaration the Pakistan judiciary can be deemed to have assumed responsibility for implementing it in its own jurisdiction and for firmly advocating measures that lie in the domain of the executive or the legislature.

Many in Pakistan should like to deliberate on the Chief Justice’s most heartening statement during the conference that the court shall not allow anyone to deviate from the Constitution. Apart from the fact that what has been put before us as a high ideal is supposed to be a routine matter in any constitutional order, judicially sanctioned deviation from the Constitution has presented in Pakistan the single greatest challenge to rule by just laws and to the most fundamental of the people’s rights.

If the people are to be guaranteed what the Chief Justice has pledged them, the judiciary will have to take a critical look at deviations from the Constitution through arbitrary amendments in it and find or suggest ways of preventing such amendments or nullifying them if they have been made already. There can be no doubt that such deviations from the Constitution are far more portentous and pregnant with more devastating consequences than the abuse of power by a state functionary or any legislation outside the limits set by the Constitution. And the judiciary certainly has some responsibility to rectify the record.

In the 1950s the federal court gave a clear ruling (Usuf Patel case and opinion on the reference by the governor-general) that the head of state could not make constitution by ordinance. But that is exactly what F. M. Ayub Khan, General Yahya, General Ziaul Haq and General Musharraf have done — constitution-making by ordinance, and in several instances under licence inexplicably granted by the courts. Since the Supreme Court denied relief to the petitioner (Nusrat Bhutto) and gave it to the respondent (CMLA Ziaul Haq) without his asking for it and went out of its way, and possibly beyond its lawful mandate, to grant him the power to amend the Constitution, the apex court has not seen its way to overruling this precedent. Indeed, it was reaffirmed in the Achakzai case in 1999 and in the Zafar Ali Shah case in 2000.

In the latter two cases, the Supreme Court sought to restrict the absolute rulers’ freedom to play with the Constitution according to their whim and caprice by saying they could not alter the salient or basic features of the basic law, namely, federal polity, independence of the judiciary and parliamentary form of government, blended with Islamic values. Without going into the merits of this body of salient/basic features of the Constitution, one should like to venture to ask as to why this list could not be enlarged. Why could not rule by representatives elected through a process based on adult franchise and in accordance with procedures laid down in the Constitution or the equality of all citizens regardless of belief, gender, domicile or social status be decreed as basic features of the Constitution?

Likewise, there is every reason to include guarantees of fundamental rights in the list of basic features of the Constitution. Most of the deviations from the Constitution in Pakistan have given priority to the suppression of fundamental rights. Whenever an emergency is declared, the rights are suspended or whenever it is considered necessary to suspend fundamental rights, a state of emergency is imposed. Nothing is more ridiculous and indefensible than the denial of fundamental rights to people at a time when they need them most. Thoughtless defence of emergency is as bad as the myth about situations for which the Constitution supposedly has no answer.

Unfortunately, the Constitution grants the custodians of power dangerously large space for proclaiming a state of emergency and then allows them the freedom to curtail the rights given in Articles 15 (residence and movement within the country), 16 (freedom of assembly), 17 (freedom of association), 18 (freedom of vocation), 19 (freedom of expression) and 24 (freedom of property rights). In its judgment upholding the takeover of October 1999, the court had gratuitously allowed the chief executive to clip the rights in these very articles.

True, we have the Supreme Court verdict of 1999 in which proclamation of emergency on May 28, 1998, (nuclear tests) was upheld, but the suspension of fundamental rights was held to be without justification. However, it is necessary to ensure that cases of violation of the basic features of the constitution defined here — democracy and fundamental rights — are treated above the scope for routine litigation.

Several states (such as France and Japan) have therefore put the constitutional provisions regarding democracy and fundamental rights beyond intervention by parliaments (and the question of tampering by a single person executive does not arise). The Canadian Bill of Rights and India’s amendment to its constitution also can be profitably examined.

An important issue raised in the Islamabad Declaration relates to terrorism. There is nothing surprising in the plea for addressing the root causes of terrorism. The statement that the effects of terrorism can be overcome by strengthening democracy and rule of law is most welcome. The judiciary has to play a key role in ensuring that while dealing with cases of people accused of terrorism, often by agencies lacking in legal skills and respect for law, the salient features of due process are not compromised.

This point cannot be over-emphasised. Predatory executives the world over have been displaying extremely reprehensible tendencies for adopting draconian measures against those suspected of involvement with terrorism (and many of whom are found innocent) and denying them rights under law. Unstable states, Pakistan not excluded, are keen to out-Herod Herod and judiciary offers the sole safeguard in many countries.

The declaration also includes some encouraging references to public interest litigation and judicial activism. The Supreme Court has recently won considerable popularity by taking up cudgels on behalf of girls threatened by vile customs (vani, for example) and against policemen failing in their duty to victims of criminals or irresponsible law-enforcers. That these cases reflect sloth and incompetence in the administration is something for the government to worry about. As a principle one should like to see the apex court relieved of some of its routine chores instead of its being loaded with more of them.

In any case, judicial activism must be approached with some care. While much can be said for strict enforcement of the law, it is impossible to ignore the fact that the judiciary in all countries is known for conservatism and allegiance to the status quo. The youth of Pakistan cannot, for its instance, forget that it was the Supreme Court that banned the students’ unions.

It is submitted with due respect to the Supreme Court that judicial activism would be more meaningful and more broadly rewarding for the people if, instead of common infringements of law, it addressed defective laws and irrational policies under which the people have been suffering decade after decade. For example, how does one justify the permanence allowed to ordinances promulgated during periods of deviation from the Constitution? This is an area that urgently calls for remedial measures by the legislature as well as the judiciary.

Let it be said for the removal of doubts, as they say, that making of laws or constitution by courts is not being suggested here; that the courts must never do, not even to the extent that they have been asked to do in Pakistan. However, there have been many instances where courts have helped ease the hardships of litigants and public at large by calling for appropriate legislative initiatives. As long ago as the beginning of the colonial period in Punjab, it was a judicial commissioner (that is, before the high court was set up) who first told the rulers of the need for a law to protect the interests of landlords who were losing their lands to moneylenders.

Public expectations from Pakistan’s judiciary are unusually high because, among other things, it is one of the most influential institutions of its kind in the world. Apart from a network of traditional courts it also incorporates the Shariah courts that enjoy legislative powers in addition to their task of interpreting statues. The Law and Justice Commission, charged with the revision and reform of laws and practices, is almost wholly an auxiliary of the judiciary. The same about the National Judicial and Policymaking Committee. Heavier by the same token are the responsibilities of the judiciary in Pakistan.

THE Lebanese have gone through a tragedy of horrendous proportions. Following the capture of two Israeli soldiers by Hezbollah on July 12, Israel rained death and destruction on Lebanon for more than a month, thus exposing its own savagery and the Bush administration’s complicity in what can only be termed as a heinous crime.

The failure of the UN Security Council (UNSC) to prevent Israel from relentlessly killing innocent Lebanese civilians, including women and children, and destroying the country’s infrastructure fully justifies the accusation of tardiness levelled against it. The UNSC had the moral and legal responsibility of stopping a deliberate crime and to defend Lebanon’s sovereignty. Regrettably, however, it did not act quickly and decisively to avoid bloodshed in Lebanon.

The scenes of carnage in Lebanon that were telecast and that appeared as images on the front pages of newspapers caused great consternation to the international community. The most pressing need, therefore, was for an immediate ceasefire between Israel and Hezbollah. UN Secretary-General Kofi Annan also expressed his concern at the spiralling violence and destruction in Lebanon and made repeated calls for an immediate ceasefire between Israel and Hezbollah. These calls were also ignored by the Security Council that took almost a month to produce a resolution to end hostilities between the two warring parties.

Indisputable evidence is available that the United States obstructed the Security Council from playing an effective preventive role in Lebanon and deliberately prolonged the passage of a resolution by it to enable Israel to achieve its military goals so that it could translate them into political gains through negotiations. The inability of the Council to act immediately and with determination has badly shaken the world’s faith in its authority and integrity.

In a recent interview, former US President Jimmy Carter severely criticised Israel’s unjustified attack on Lebanon. He said that Israel had no moral justification for its massive bombing of the entire nation of Lebanon when it is holding almost 10,000 Palestinian and Lebanese prisoners. When the militants in Lebanon captured two of its soldiers it looked upon the incident as a justification for an attack on the civilian population of that country. Jimmy Carter also criticised the Bush administration for supporting and encouraging Israel in its unjustified attack on Lebanon.

Israel claimed that its war was against Hezbollah and not Lebanon, but justified its aggression against Lebanon on the plea that the abductors of its two soldiers had come from there. It is important to note that on July 12, the Lebanese government had issued a statement declaring that it was not aware of the events that were taking place on its border and not responsible for them and did not endorse them. It follows from this that Lebanon not only disavowed Hezbollah’s action but also did not condone it.

It may be pertinent to mention here that in a statement Hezbollah had declared that its fighters had captured two Israeli soldiers to liberate its prisoners held by Israel. It may be recalled that Israel and Hezbollah have carried out several swaps in the past to obtain freedom for their respective prisoners. This only indicates that the capture of the soldiers was used by Israel as a pretext for invading Lebanon to attain its strategic aims in the region, particularly in the context of Iran’s nuclear issue.

Israel responded to Hezbollah’s offer for a prisoner exchange with massive air, land and sea attacks that destroyed the Beirut airport, roads and vital bridges. Its indiscriminate bombing of the Lebanese civilian population killed more than 1,100 persons, a third of them children. Israel even targeted hospitals, ambulances, funeral processions, schools and mosques, indicating that its armed forces systematically and wilfully defied the most fundamental tenets of the rules laws of war that explicitly prohibit making the civilian population the object of attack. The wanton brutality inflicted by Israel on the civilian population of Lebanon constitutes a war crime for which it should be tried in the International Criminal Court. The Security Council could also refer the case to that court but such a move would almost certainly be vetoed by the United States.

Despite its overwhelming military superiority and Washington’s wholehearted support, Israel today finds itself in an unenviable position. Instead of achieving a clear victory over Hezbollah, a small militant outfit, Israel has suffered loss of power and prestige. The myth of its invincibility has been shattered causing extensive damage to its own morale. Some military experts, including Israelis, believe that Tel Aviv would have found itself caught up in a nightmare scenario had the UN-brokered ceasefire not come into effect. Some military experts are of the view that the Israeli military’s experience only involves the oppression of the Palestinian population and that it is not trained for a real war.

On the other hand, Hezbollah, founded in 1982 in response to the Israeli invasion of Lebanon, is a significant force in parliament and a major provider of social services. Its popularity now transcends the Lebanese borders. In the 2005 elections, Hezbollah won 14 seats in the 128-member Lebanese parliament and two of its members are in government. Today, it is a well-structured political party. It is participating in a government that includes parties towards which it was once hostile. This shows its moderate outlook.

The international community would do well to respect it as a legitimate political party and not to consider it as a terrorist outfit as portrayed by the West only because it espouses the Palestinian cause and wants Israel to vacate the occupied territory.

Prime Minister Ehud Olmert’s strong reaction in retaliation to the abduction of two Israeli soldiers has been severely criticised in Israel where it is argued that the action against Hezbollah unnecessarily embroiled the country in a senseless war that was not linked to its survival and, therefore, should not have broken out at all.

Some political analysts, however, believe that Washington instigated Israel to fight a proxy war against Hezbollah and that Israel had planned its invasion of Lebanon before the capture of its soldiers. Regrettably, Washington not only stood behind Tel Aviv but even tried to legitimise the attack. US Secretary of State Condoleezza Rice defended Israeli aggression as its “right to self-defence”.

There has also been widespread public discontent in Israel at the inept handling of the recent crisis, including the dismal performance by its military during the war. A commission has been set up by Israeli Defence Minister Amir Peretz to investigate these allegations. He has, however, been quoted as telling a meeting of Israeli generals that the setting up of the commission did not imply any criticism of the military. It was only a “professional examination to learn the lessons and draw conclusions”.

This makes it fairly clear that the current cessation of hostilities notwithstanding Israel may be getting ready to enter into another far more dangerous conflict with Hezbollah to annihilate it. It may also be noted that the Israeli defence minister recently stated that Israel would examine mistakes that it made during the Lebanese war in preparation for the “next round of war”.

Diplomatic efforts to stop the one-month long conflict between Israel and Hezbollah have ultimately culminated in the unanimous adoption of resolution 1701 by the UNSC. The resolution is, however, only one step towards a comprehensive approach that was needed not only to prevent yet another eruption of violence and bloodshed in Lebanon but also to facilitate the resolution of the Palestinian issue that is the main source of various crises in the region, including the present one between Israel and Hezbollah. It is the responsibility of the international community to take a more positive and holistic approach to resolve this long simmering problem and establish a lasting and durable peace in the Middle East.

The writer is a former ambassador.

INSULTS are not predictions: they’re not meant to come true. But the leading nations of Europe seem bent on proving that every word of abuse rained down on them from across the Atlantic over the past few years was justified.

To call the French “cheese-eating surrender monkeys” once appeared no more than a neocon slander. The American insistence that Europe was a continent of limp-wristed wusses, who were fond of fancy oratory but ran from the first sign of trouble, could be written off as mere Texan bluster.

Not now. With France in the lead, the great powers of Europe are confirming the US right’s prejudices. During this summer’s war between Israel and Hizbullah, they certainly talked the talk — pressing for a ceasefire, demanding an international force be placed between the combatants. But now it’s time to walk the walk, and the Europeans are finding they’d rather stay on their chaise longues.

The French are the worst offenders. In a hurry to show the Americans how great powers ought to conduct themselves in the Middle East, France boasted of its status as the former colonial master in Lebanon and jointly proposed the UN resolution that would end hostilities. Central to that accord was the promise of a 15,000-strong force capable, alongside the Lebanese army, of keeping Hizbullah behind the Litani river and Israel behind its own border. France would supply most of the troops and be in command.

But now it’s time to deploy and the French have dispatched precisely 200 troops — far short of the number the UN hoped they would send. They, and the Italians, whose planned 3,000-strong contingent now puts them in line to lead the UN force, are suffering from cold feet. They’re worried that their men will be vulnerable; that they may have to confront Hizbullah; and that, if they don’t, Israel will start do the job itself, leaving the blue helmets in the crossfire.

These are understandable worries, but they cannot have taken Paris or Rome by surprise. That this operation would entail risk was obvious the moment an international force was suggested. The clue was in the word “force”. If this was a walk in the park, the UN would have asked for a multinational platoon of boy scouts and girl guides to patrol southern Lebanon.

Of course this task is risky. It will take a robust force to prevent, for example, the reported attempts by Hizbullah to smuggle in fresh arms from Syria. If those weapons convoys are not blocked, Israel will attack them, so triggering more Hizbullah rocket attacks over the border. The ceasefire Europeans insisted so loudly they wanted will be over. If Europe does not want the war to begin again, with all the death and mayhem among Lebanon’s civilian population that would bring, then it has to step up. But it is refusing to honour its promise.

And there is no one else who can do it. It can’t be the US: thanks to the lunatic folly of Iraq, the American military is overstretched and the US so hated in the Arab and Muslim world that the very idea is unimaginable. Sadly, the same is true of Britain, for the same reasons. Malaysia, Indonesia and Bangladesh are keen to do their bit, but Jerusalem balks at that since none of those countries recognise Israel: it’s difficult to have an umpire who refuses to accept that one of the two teams on the pitch exists.

So this is Europe’s responsibility. Over the past five years, the continent’s politicians have made great capital lambasting the simple-minded crassness of the Bush approach, its doomed belief that the world could be reordered by force. Americans were from Mars, Europeans were from Venus - believers in the gentle suasions of “soft power”. Much of that made good sense. But these Venusian Europeans usually conceded that there were times when there was no alternative to military might, albeit deployed for pacific ends.

Most European leaders guiltily concede that a properly mandated force could have stopped the massacre at Srebrenica and should have stopped the genocide in Rwanda. The lesson of both those calamities is that sometimes Europe has to use hard power. Now is just such a time, and Europe is dithering pathetically. The result is that a Washington Post commentator could yesterday declare with justification that “as we always learn, Europe without American leadership is a mere tourist destination”.

As for Israel itself, it is undergoing a remarkable shift. It began the summer conflict united to an extraordinary degree, convinced that no country in the world could sit back while the proxy army (Hizbullah) of a state committed to wipe it from the map (Iran) trained missiles on its civilians. That mood has evaporated in a few short weeks. Now Israelis are engaged in a round of numbed soul-searching, the nation’s leading commentators concluding that the war of 2006 was a military, political and strategic failure.

Much of the criticism is currently directed at the operational errors: the lack of military preparedness, the indecision of commanders, the mistaken belief that a ground force like Hizbullah could be beaten from the air. Some are demanding a state commission of inquiry, like the ones that followed the debacles of the Yom Kippur war of 1973 and the Lebanon invasion of 1982. The fact that 2006 is bracketed in that company tells you all you need to know.

The immediate consequence is already clear: the suspension of the planned unilateral withdrawal from parts of the West Bank that was the centrepiece of Ehud Olmert’s programme. As some of us feared, the Lebanon conflict was always a battle for the legitimacy of unilateralism: if Hizbullah could not be quieted, Israelis would conclude that pulling out of occupied territory — as Israel did from Lebanon in 2000 — only leaves them more vulnerable.

So now Jewish settlements on the West Bank that would have been dismantled will remain; checkpoints that would have come down will stay up. The settlers should cheer the name of Hassan Nasrallah: he has saved them. And Palestinians should curse the Hizbullah leader: thanks to him and his rockets, the occupation of their lands that would have been shrunk, perhaps by as much as 90 per cent, will now remain intact. (Those who declared “we are all Hizbullah now” at demonstrations in London this month might reflect on that.)

After that, what? Olmert’s government will not be able to last. His reputation has surely been destroyed, along with that of the Labour leader Amir Peretz, who arrived amid such great hopes nearly a year ago. Voters will look for new leadership, untainted by the Lebanon disaster: perhaps the former intelligence chiefs Avi Dichter for the Kadima party and Ami Ayalon for Labour.

There might be moves toward a new unilateralism-minus: allowing settlements to wither in parts of the West Bank, but retaining a military presence, to prevent the Palestinians building up a hostile Hizbullah-style force there. Occupation without colonisation, if you like.

Optimists will hope that just as the scare of 1973 eventually led to the Camp David accord of 1978, so this near-defeat will trigger a new move towards peace. The obvious destination for that journey is Damascus, with Israel seeking to peel Syria away from Iran, in return for the Golan Heights and whatever other inducements the US might offer.

For now, though, Israel contemplates a landscape in which it is no longer feared as much as it was before. In 2006, it fought in such a way that it could not win - and it now wonders when, and how fiercely, it will have to fight again. —Dawn/Guardian Service