| March 15, 2007 | Thursday | Safar 25, 1428 |
Darfur: the cry of despair
Iran-US nuclear stand-off
COMPARED to other democracies, Pakistan has never been a shining star in upholding the principle of the independence of the judiciary. The reasons for this underperformance are similar to those found in many developing countries and include poverty, backwardness and lack of trained and qualified judges to impart justice to large sections of the population. Those who lose out on justice are mostly women and other vulnerable social groups.
WITH the US and Iran not budging an inch from their respective positions on the nuclear issue, the threat of a US attack on Iran’s nuclear installations appears imminent. It is widely felt that the countdown has begun and that the drafting of a tougher UN resolution is only a formality to impress on the world that the US is being constrained to adopt extreme measures after the failure of diplomatic endeavours.
Despite recent efforts to improve the image of the judiciary in Pakistan, thousands of cases are pending in courts. However, the biggest and foremost reason for the judiciary’s poor performance is the constant interference by the executive in the affairs of the judiciary.
This interference started early in the life of the country when the then president and martial law administrator required the judiciary to take a fresh oath of office swearing allegiance to the emergency provisions leading to the military takeover of the country in 1958. This was important because while the military coup eliminated two branches of government — the legislature and executive — it did not otherwise affect the judiciary. The only way the judiciary could be neutralised by a military regime was to make the senior judges subservient to the executive and prevent them from challenging the legitimacy of the coup and other extra-constitutional measures required to run the affairs of the state under military rule.
After initial resistance to the political events in 1958, the judiciary succumbed to the pressure and accepted the argument that if it did not compromise with the situation, military courts would replace civilian courts in all spheres of the judiciary. In order to continue their jurisdiction over criminal and civilian matters without questioning the politics of the day, the judiciary decided to go along with the requirement of taking an oath of allegiance to the military dictator.
The judiciary’s validation of the coup which was applied in the State v Dosso case in 1958 was so potent that three African countries in the Commonwealth borrowed it subsequently to validate the abrogation of their constitutions by the military. Later, the Dosso reasoning was replaced by the ‘doctrine of state necessity’.
This entente cordiale between the military regimes and the judiciary proved mutually rewarding. The judiciary could continue functioning without interruption as long as it did not question the actions of the military regime. The military rulers, on the other hand, could claim that not all was taken over by them and that the courts were free to dispense justice to society without fear or favour.
Following the military overthrow of a democratically elected government in 1999 in Pakistan, the senior judiciary was again asked to take an oath of allegiance to the military chief executive. Those who dissented, like Justice Saeeduzzaman Siddiqui, had to step aside. Subsequently, the Constitution (17th amendment) act 2003, declared that all laws, rules and orders issued under the military government were deemed to have been made in accordance with the Constitution.
The country has paid a high price in terms of its image abroad as the oath of allegiance of the senior judiciary remains a big obstacle in convincing the world that Pakistan’s judiciary is truly independent of the executive. The present episode is perhaps the first time in the history of Pakistan when the judiciary seems to be exerting its independence vis-à-vis an executive which is beginning to acquire more and more powers despite the lip service paid to the theory of checks and balances.
Under the Commonwealth Latimer House principles, Pakistan is morally and politically bound to ensure and respect the separation of powers and independence of action between the three branches of government – the executive, the legislature and the judiciary.
The announcement made on behalf of the Supreme Judicial Council that the electronic and press media should be careful in discussing a matter which is ‘sub-judice’ makes matters worse for the government. In this age of the internet, the government cannot prevent foreign newspapers and TV channels from commenting on the drama which is being played out in the streets of Islamabad.
In normal circumstances, the Chief Justice, upon hearing about the charges against him from the president, should have himself announced that in view of the allegations against him, he was proceeding on leave pending the outcome of an inquiry by the Supreme Judicial Council. But the rapid action that followed Justice Iftikhar Chaudhry’s meeting with the president last Friday and his subsequent protective custody and ‘isolation’ by the security agencies led to suspicions that the government was fed up with his bold and fearless demeanour in taking suo motu notices. The chief justice had spoken about many social issues which are highly objectionable and serious in magnitude but which were never brought for legislation in parliament or if these were already covered by laws, were not fully enforced by the government.
Two recent examples of the chief justice’s suo motu notices are his ban on kite flying and expression of concern on the temporary ‘disappearance’ of people. Both actions did not go down well with the government. The Punjab government lifted the kite flying ban for two days and as a result of the death of 13 persons in unfortunate incidents is now faced with possible court cases from the affected families. The ‘disappearance’ of persons has more serious overtones because it infringes on the human rights of people.
From the point of view of the government, surprise custody of suspected individuals for questioning may be necessary to round up terrorists. It is true that Pakistan has a very important role to play in combating terrorism and that it has to show a constantly rising graph in its performance on the war on terror to keep Washington satisfied. But it is also the responsibility of the government to ensure that there is a proper balance between domestic law enforcement and human rights. All other countries of the world which have joined the war against terror have observed this balance.
Normally it is not the function of the apex court to keep issuing suo motu notices to bring about societal change. But if the Chief Justice tried to translate into action the president’s vision for a fair and just society, why should he be punished for bringing about a positive change?
It is argued that the procedure set out in clauses four, five and six of Article 209 has not been followed chronologically. Clause 5 (b) of Article 209 gives the president the authority to direct the council to inquire into the matter of misconduct but it does not give the president the power to remove or make ‘non-functional’ the concerned judge of the Supreme Court or a high court until the condition in clause 6 of Article 209 has been fully met.
The government order preventing Justice Chaudhry from performing his duties on charges of misconduct raises two fundamental questions on the application of the rule of law. The first is denial of his constitutional right to continue as Chief Justice until he is proven guilty of the charges laid against him; and the second is correctness of the composition of the body holding the inquiry against the Chief Justice in accordance with the Constitution. The present composition of the Supreme Judicial Council is without the senior-most judge of the Supreme Court after the Chief Justice.
The next senior-most judge is Justice Rana Bhagwandas. His membership of the Supreme Judicial Council is mandatory in accordance with clause 3 (a) of Article 209. Even if the president had asked the judiciary to invoke Article 209 against Justice Chaudhry, the other members of the council should have consulted Justice Bhagwandas on telephone about the date of its meeting and confirmed his participation. Sadly, this does not seem to have happened because the council met on March 13 without Justice Bhagwandas.
Although the events surrounding this interesting judicial case are not a surprise to people who have followed closely the circular email of a Supreme Court advocate, Naeem Bokhari, the action that the executive took last week was too harsh and too hasty. Stopping the Chief Justice from performing his duties with immediate effect on the basis of a letter, even if the letter contained hard facts, is not good practice.
If letters alone can form the basis of determining the fate of highly-placed people in public office, it may be recalled that last year a dozen intellectuals, former politicians and retired generals wrote an open letter to the president warning him of the dangers of continuing both as president and army chief, in the interest of the nation and for the stability, unity and consolidation of democracy in the country. The president ignored that letter, perhaps rightly so because in the affairs of the state, such letters do not mean anything.
If on the basis of the inquiry of the Supreme Judicial Council it is determined by a majority vote that Justice Chaudhry is not guilty of misconduct, can anyone imagine the embarrassment it will bring to the government? Will the president be then prepared to resign admitting an error of judgement in referring Justice Chaudhry’s case to the Supreme Judicial Council?
Moreover, if this government has taken the high moral ground that previous governments were so autocratic that they did not even spare the institution of the judiciary by forcing Sajjad Ali Shah to resign or by masterminding a physical attack on the Supreme Court, how can it defend this action which to outsiders appears similar to earlier assaults on the judiciary? The removal of the Chief Justice will clearly be seen abroad as an indication that in an election year the government wants to ensure that he is not a threat to their plans to re-elect the president in uniform and win the elections for the ruling party.
Whatever the Supreme Judicial Council decides on the reference is its constitutional duty and right. But people will be curious about the details of how the inquiry is conducted. They might also support Justice Chaudhry’s request for a public inquiry.
What is at stake is not the judicial process or the issue of transparency because there are instances where inquiries have been held in camera. What is important is that the Council also looks at the record of Justice Chaudhry’s professional performance. How much harm or good have his judicial verdicts and suo motu notices brought to the country? How far has he been instrumental in restoring the independence of the judiciary? Has he inspired his juniors in the profession to be bold and fearless in dispensing justice for the public good?
After all, none of us can claim to be a saint. If Justice Chaudhry has any vanity or personal flaws, did these come in the way of him being a responsible, bold and fair Chief Justice? Judging from the public enthusiasm and media commentaries that this case has generated, it is indeed a golden opportunity for the judiciary to set the direction of its future which the infamous Dosso case turned away from nearly half a century ago.
The writer is a former special adviser for political affairs in the Commonwealth Secretariat, London.
ByJonathan Freedland
I ONCE spoke to a journalist who had covered the war in Bosnia in the early 1990s. He said that he and his colleagues kept heading into harm's way, because they believed that once the world knew of the horrors they had witnessed, the world would be stirred to act.
They filed their reports and waited. Soon enough, they understood. The world knew what was going on –- and yet it did nothing. For some of those reporters, this experience broke their faith in the power of journalism. For others, it broke their faith in their fellow human beings.
I suspect the aid workers and United Nations staff who signed a collective statement on the plight of Darfur in January are going through a similar heartbreak right now. Fourteen different UN humanitarian bodies, including the World Food Programme and the World Health Organisation, issued an unprecedented cry of despair. They explained that their workers had "effectively been holding the line for the survival and protection of millions, [but] that line cannot be held much longer".
Under attack themselves, these UN workers could no longer reach the people they sought to protect and feed. "In the last six months alone," they wrote, "more than 250,000 people have been displaced by fighting, many of them fleeing for the second or third time. Villages have been burnt, looted and arbitrarily bombed and crops and livestock destroyed. Sexual violence against women is occurring at alarming rates. This situation is unacceptable."
I'm sure that when they drafted that message, they believed the world would stir and come to their rescue. Surely it could not ignore such a stark, desperate plea from those whose only motive is to save lives?
Well, now they know. The message came and went, reported here and there, posted on the odd website and comprehensively ignored. The humanitarians of Darfur have learned the lesson of the old Bosnia press corps: that the world might know, and know in great detail –- but still the world does nothing, or waits until it's too late.
First blame lies of course with the government of Sudan, which UN human rights investigators this week accused of "gross and systematic" abuses, orchestrating and participating in a campaign of violence that has seen, at a conservative estimate, 200,000 people killed and 2 million displaced. Officially, this has been done in the course of a civil war against rebels in Darfur, who are guilty of their own atrocities. But the UN human rights council was quite clear: the "principal pattern" was of violence committed by the Sudanese government and its allies in the Arab Janjaweed militias.
Why can it not be stopped? The answer reveals much about the state of our world, the limitations of power and the extent to which the liberal interventionist vision articulated by Tony Blair during the Kosovo war in 1999 –- of a world in which states could no longer murder their own people with impunity –- lies in shreds.
It's not as if the international community has done nothing. In August last year the UN passed resolution 1706, agreeing to upgrade the small African Union force of 7,000 troops that was attempting to police Darfur –- a territory nearly the size of France –- with a UN deployment of 22,500. Such "heavy support", in both personnel and hardware, would have made a vital difference, standing between the Khartoum-backed predators and their Darfuri prey.
Trouble is –- and here's a surprise –- the predators don't want that force to come in. And this has to be a "consensual" deployment: it can't happen without the permission of those who are to be restrained. It's as if the police knew that terrible crimes were going on at number 73 - but were forced to stand outside, doing nothing, because the man of the house wouldn't let them in.
Omar al-Bashir, Sudan's president, is not quite as crude as that. If the pressure is sufficient, he tends to say yes to the requests of the international community –- only to say no later, when the attention of the world's capitals has moved on. Bashir has turned saying no into an art form, constantly refusing UN and other officials access to refugee camps, townships and villages. Jody Williams and her team of UN human rights investigators were forced to do their work from across the border when the Sudanese authorities denied them a full set of entry visas.
Back in the prelapsarian days of 1999, when Tony Blair went to Chicago to evangelise for liberal interventionism, the response to this closed door would have been to suggest that the rest of the world, led by the west, should bust its way in. But that was before the calamity of Iraq, which has tainted for a generation the Blairite doctrine of muscular humanitarianism. So no one talks seriously about military action against Khartoum now, not least because Bashir's government is an Islamist one –- and a western war against such a regime would look uncomfortably like confirmation of the clash of civilisations that both Blair and President Bush insist does not exist.
Claiming to be the victim of some western vendetta against Islam also suits Bashir, but it is bogus. For one thing, Bashir's Darfuri victims are themselves Muslim. But, more importantly, those seeking to restrain him and his Janjaweed militias are hardly the hated west –- they are the African Union. It is the AU which has been impeded, harassed and attacked, and whose expansion Bashir resists. Indeed, the hybrid UN force he is currently barring would be overwhelmingly African and Asian, drawn from mainly Muslim states. The first batch of UN troops, already on standby, is from Rwanda.
But force is not the only pressure. London is pushing for narrowly targeted sanctions, aimed at Sudan's ruling elite, hitting the companies they own and the luxury goods they covet. That, combined with a no-fly zone and an arms embargo covering all Sudan –- not just Darfur –- could, say its backers, force Bashir to back down. If neighbouring Arab states put pressure on the rebel groups, the result could be a ceasefire and an end to the terrible violence.
Yet even that course of action seems too much for the international community. China won't sign up, because it relies on Sudanese oil and sells arms to Khartoum. Some African and Asian states have grumbled that Sudan is being unfairly singled out.
More importantly, perhaps, there is little or no pressure from public opinion. That's partly because there has been none of the intensive media coverage that triggered the drumbeat for action in Kosovo, for example. The left, who one might expect to rise in fury at the mass murder and oppression of a black African population, has also kept its distance. That might be because it suspects those demanding action on Darfur are driven by an anti-Islamist agenda, or because it fears that "action" would translate into an Iraq-style invasion.
Those are some of the reasons why the world has done nothing; perhaps there are others. But the fact of it still stains our world. At the end of this month, leaders will gather to celebrate the 50th anniversary of what became the European Union. They will make fine speeches, declaring that after the horrors of the second world war the only moral course was "never again". If those words reach all the way to Darfur, how hollow they will ring. —Dawn/Guardian Service
An attack on Iran by the US or US-backed Israel would be an extension of the war in the region and in sequence to the wars in Iraq and Afghanistan as well as a corollary of the volatile political conditions in Palestine and Lebanon.
An attack on Iran may provoke violent reactions in Palestine, Lebanon and Syria apart from adding fuel to the fire in Iraq and drawing Israel into a wider Middle East conflict. Such a war could spill over to moderate Gulf countries and Jordan, thus eventually leading to a broader Middle East conflict, and even a world war, according to some.
Although the concept of a world war should have become an anachronism by now because such a conflict, in the context of the world’s existing nuclear capabilities, could mean our planet being blown to smithereens, it is still being raised, particularly with reference to the war on terror and to the US-Iran nuclear stand-off.
General John Abizaid, the US military commander in the Middle East, for instance, while speaking at Harvard University on November 17, said that Islamic militancy, if not checked, would unleash a third world war.
Shortly afterwards, the British Prime Minister Tony Blair echoed the words of General Abizaid when he said in an interview that if militancy is not stemmed it would lead to a third world war. His statement was significant as it came on the heels of his meeting with President Bush a few days earlier.
The fear that a third world war is in the making or that the Middle East conflict represents its early stages was also recently expressed by Newt Gingrich, the former Republican House speaker.
“The Next War of the World” by Niall Ferguson, a professor of history at Harvard, is an essay in Foreign Affairs. Ferguson ends his essay with this grim conclusion that we need to confront the fact that another global conflict is brewing and centres on Palestine and Iraq. However, before reaching this conclusion he asks the question, “If the combination of ethnic disintegration, economic volatility, and empires in the decline is the basic formula for twentieth-century conflict, then what are the implications for the twenty-first century?”
He answers this himself, “Today, one region displays in abundance all of the characteristics of the worst conflict zones of the twentieth century. Economic volatility has remained pronounced there even as it has diminished in the rest of the world. An empire (albeit one that dares not speak its name) is losing its grip over the region. Worst of all, ethnic disintegration is already well underway, even though many commentators still conceive of what is currently the main conflict there as an insurgency against foreign invaders or a ‘clash of civilisations’ between Islam and the West. That place is the Middle East.”
Although one may agree that the Middle East at present has all the ingredients that could provoke a world war, there is, fortunately, also a reassuring reality that none of the mighty and rich nations would like to even dream of a world war, much less precipitate one. The big powers and the major economies have all an interest in peace for prosperity. This is the safest bet against the outbreak of a major war.
Furthermore, the threat of a world war could arise only if the big powers are in direct confrontation regarding their own strategic safety and existence. Such a dramatic situation arose only once after the Second World War when during the 1962 Cuban missile crisis, the US and the Soviet Union alerted their batteries of nuclear arsenals on land, sea and air to full attack readiness against each other. Luckily, the crisis was averted. Over 40 years on, the world has grown too mature and prosperous to risk a crisis like that again.
Even an attack on Iran is not in the US interest as the reaction may further complicate problems in the region, and cause disruption in the oil flow which is still the life blood of the US economy. It is not without reason that the US is dithering and keeping an over-eager Israel from a ‘misadventure’ in Iran.
Although both America and Iran could not but be losers in any war between them, Iran would obviously bear far heavier losses. The US may even gain in the long-term as history bears out that war has more often helped rather than hurt the US economy. In the aftermath of the First World War, the United States enjoyed a great period of prosperity referred to as the “roaring twenties” as it was a period of considerable economic success.
Similarly, with the US joining the Second World War, the home front saw enormous prosperity and enabled the US economy to pull itself out of the Great Depression. The Korean War boom also bears a positive correlation between America’s involvement in war and its economy. Even the six years period of the American war on terror since 9/11, including the wars in Iraq and Afghanistan, has been marked with robust growth of its economy.
A welcoming development in the context of the Iran-US dispute is the resolution of the US-North Korea nuclear stand-off with the help of some important countries of the region, namely Japan, China and South Korea having very high stakes in the peace of the region. This may serve as a model to resolve the US-Iran nuclear stand-off as would the involvement of some regional countries such as India, Pakistan, Saudi Arabia and Russia and the UN – just like the six-party talks.
As the only superpower, America’s role is very crucial in today’s scene of war and peace, and accordingly Washington has to show a greater sense of responsibility and flexibility. However all those who may bear influence with Iran would do well to counsel its administration to adopt utmost restraint and a pragmatic approach as Iran cannot afford to be idealistic at this point in time and must do some hard calculations and take some bold decisions.
Is Iran any match for the US? In case of a war, can Iran inflict damage on US territory? These are questions it must address while keeping in mind the fact that although America does not need any help dozens of countries would be only too willing to assist it if it attacks Iran. Will even a single country come forward to help Iran to counter a US attack?
Can all international laws, conventions or even the UN stop the US from attacking Iran? We all know that nothing can deter Washington from attacking a country, as borne out by its invasion of Iraq. Iran must swallow these bitter pills of realities in the US-dominated world order of today
Moreover, President Mahmoud Ahmadinejad’s remarks pertaining to the Holocaust have not won him any laurels and are only serving to whip up anti-Iran sentiments in the West.
Iran should also ponder the fact that the world is not the same after 9/11. The US and other western countries would never let any country, particularly a Muslim one, develop or acquire nuclear weapons.
Hence, if Iran has really intentions of developing nuclear weapon capability, it would not only be a futile bid, but also counter-productive, even self-destructive.
On the other hand, if, as professed, Iran’s intention is to really use its nuclear facilities for peaceful purposes it should not hesitate to adopt and accept all safeguards stipulated by the International Atomic Energy Agency and throw open its nuclear sites for international inspection. If it does so, it would be understood that Iran is well within its rights to exploit nuclear technology for peaceful purposes.