Assault on the judiciary

GENERAL Musharraf launched his second coup on March 9, 2007, by forcibly suspending the Chief Justice of Pakistan and virtually detaining him. When he launched his first one in 1999, Pakistan had once again joined the ranks of countries like Myanmar. With this second coup, we are now in a class of our own. Even Myanmar has not achieved this feat despite a long martial law.

Much of the blame for the general’s action may lie with Chief Justice Iftikhar Chaudhry himself. He was not performing his functions as would be expected from the head of the judiciary of a country under military siege. He was beginning to stretch the long arm of the law to areas it had never visited before. He dared to question and unravel sordid deals to sell national assets. He directed the government to produce persons long ‘disappeared’. He sounded even more threatening when seen from the perspective of what lay ahead of this hapless nation in the year 2007. Any person who perceives the military uniform and presidency entrusted to one mortal soul to be incompatible with the Constitution of Pakistan is considered a threat to national security, especially if he happens to be the Chief Justice.

President Musharraf and his legal wizards are partly to blame for misreading the judicial philosophy of Justice Chaudhry at the time of his appointment as Chief Justice of Pakistan. Even before his appointment as Chief Justice, he had given a clear indication of what could lie ahead. While dealing with a provincial ordinance passed during the military rule of General Musharraf, he had made the following observations in December 2004, in the case of Arshad Mehmood vs Government of Punjab PLD 2005 SC 193:

“It is important to note that Ordinance of 1999 could not be placed before the Provincial Assembly to make it an Act because during its subsistence the Provincial Assembly was suspended on account of the military takeover on 12th October, 1999. Therefore, it may be legitimately presumed that in the enactment of Section 69-A of the Ordinance, the public views through elected representatives were not included. Thus, in the absence of public opinion in promulgating Section 69-A of the Ordinance, it may not be difficult to infer that it was not promulgated in the public interest and general welfare etc. Indeed, had this law been discussed in the Assembly, through the representatives of the public, it might have changed its complexion, to bring it within the command of Article 18 of the Constitution.”

General Musharraf and his legal advisers should have realised that a judge who believed that public interest and public welfare could only be gauged and served through representative institutions would be a serious threat to his version of democracy. To hand over the reins of judicial power to such a person and that too for a tenure which could last up to the year 2013 was nothing but brinkmanship on the general’s part.

The events reported so far appear to suggest that having dispensed with the Chief Justice of Pakistan for the time being by suspending him or making him ‘non-functional’, the government went into full gear to give constitutional cover and legal semblance to this erstwhile naked exercise of raw power. Had such an action been taken by an elected civilian government, it would have been toppled by the military within hours.Initially it was claimed by the government that the president had filed a reference against the Chief Justice of Pakistan under Article 209 of the Constitution of Pakistan, 1973, only after he was unable to satisfy the uniformed president of his innocence in the COAS House which happens to be the camp office of the president. However, subsequent events showed that the reference was not ready even when the Chief Justice first appeared before the Supreme Judicial Council on March 13, 2007. In the meanwhile, some of the spin doctors of the government unleashed a campaign to malign the Chief Justice who was not only legally presumed to be innocent until proven guilty but still held the highest judicial office in the country.

It was indeed exhilarating to see that the advent of an independent electronic media has completely transformed the rules of the game. The media not only brought the unfolding drama live into our homes, it also aired the views and comments of independent analysts as well as some of the most respected former members of the judiciary itself. This not only frustrated the government’s blitzkrieg but also generated public interest which the event certainly deserved.

It is repeatedly being argued that the fate of Chief Justice Iftikhar Chaudhry now rests with his peers in the Supreme Judicial Council. For that reason, people have been asked to refrain from commenting, lest they prejudge the issue and prejudice the atmosphere. Nobody should interfere with the functioning of the Supreme Judicial Council. This may even constitute contempt.

It is indeed correct that where a legal issue is sub judice before a court, let alone before the Supreme Judicial Council comprising some of the senior-most judges of the country, prudence and restraint are required. Thus, the narrow legal issue as to whether there are sufficient grounds against the Chief Justice of Pakistan which constitute misconduct calling for his removal from office must be left to the Supreme Judicial Council.

However, the larger issue which is neither before the Supreme Judicial Council nor prone to legal resolution is about the role of the military in running the affairs of the country. Notwithstanding the pretension that the action against the Chief Justice was taken by the president of Pakistan on the advice of the prime minister, there is absolutely no doubt that real power rests not with the prime minister or his cabinet but with the chief of army staff who also occupies the office of president. A legitimately elected president or prime minister, however powerful, would not have opted to summon the Chief Justice to his office and detain him and if he did so, could not have survived in power. It is the office of the chief of army staff and the raw unchallenged power which this office carries with it that emboldened General Musharraf to launch this adventure.

Unless the military as an institution is completely depoliticised and the people of Pakistan wrest control of the government through electing representatives, these destructive tendencies which were shamelessly displayed on March 9, 2007, will continue to haunt the country. The first step is to insist that the office of president and chief of army staff cannot be held by the same person. It must be realised that this is not a simple legal problem. We must not expect our courts alone to show the door to an unwilling, ambitious general. He will not surrender power voluntarily. It is a national political problem. All the forces of the country would have to coalesce together for restoration of constitutional rule. As usual, the legal fraternity has taken the lead. The people must now follow suit.

This is a turning point for the country. By severely manhandling the Chief Justice of Pakistan, the military establishment has overstretched itself. While it wants to demonstrate its power, it is exposed and looks weakened as never before. The general has never been so vulnerable. This is a moment which could determine the fate and future of this country. If the people seize the moment and take the initiative, this would be our second liberation. If they miss it, the general will succeed in his second coup as well. After that, the country would be in the wilderness with darkness all around.

EU’s biased report on Kashmir

THE European Union report prepared by Baroness Emma Nicholson will be discussed by the European Parliament’s foreign affairs committee on March 21 before it is put to vote some time towards the end of May. Besides making one wonder as to what prompted the European leaders to mull over a dispute which they had long forgotten, the report, by implicating China in the Kashmir imbroglio, tends to make the problem even more intractable.

The report transforms what India had hitherto been treating as a bilateral dispute into a triangular dispute by bringing in another contender – the People’s Republic of China – and enjoins Pakistan to ensure the evacuation of Aksai-Chin by Beijing.

The implications of the report are destabilising for the region ever since the Sino-Indian hostility first erupted and that both New Delhi and Beijing have been trying to defuse. Aksai-Chin was annexed by China which constructed a highway running from Kashgar to Lhasa, while India annexed NEFA to which the Chinese laid claim and that was re-designated as Arunachal Pradesh.

Wisely, the two Asian nuclear giants seem to have ruled out any replay of the October 1962 episode and accepted it as a fait accompli since the disputed territory may not be worth risking a nuclear holocaust. By espousing the Indian claim to Aksai-Chin and overlooking the Chinese claim to NEFA, the European Union is obviously exacerbating tensions between the two in a volatile region in a bid to deflect both the nations from the path of conciliation and economic progress. There has been a constant increase in mutual trade and economic cooperation, so why set them on a collision course?

It is like inciting the Germans to reclaim the Polish Corridor and the Poles to demand the swathe of territory absorbed by Russia at Yalta in 1945. If similar demands were made by the Balkan states for the restoration of each other’s disputed territories, Europe would be heading for war, with the recently forged European Union falling apart. Already, the Cyprus dispute rankles in the body politic of Europe and the revival of the Armenian question could well alienate Turkey, an important Nato ally.

The European leaders should shed their imperialist mindset and stop throwing stones at others while sitting in their glass houses. They had better leave the three Asian neighbours alone for a change so they can sort out their own problems in a positive spirit.

Now coming to the EU advice to Pakistan that it should withdraw all its troops from Gilgit, Baltistan, Muzaffarabad and the areas comprising Azad Kashmir. If Baroness Nicholson had cared to go through the proceedings of the Security Council debate on Kashmir, she would have known that Pakistan, unlike India, had never claimed that the whole of Jammu and Kashmir belonged to it; it simply demanded that the question of accession of the disputed state should be decided by a referendum to be held under UN auspices.

The United Nations upheld Pakistan’s contention in the Security Council resolutions of April 21, 1948, August 13, 1948, and January 5, 1949. Interesting enough, India agreed to the solution proposed by the Security Council but when it came to its implementation, it started prevaricating. India objected to Pakistan’s retaining its armed forces in areas under its control, accusing it of violating the above-mentioned resolutions calling for a troop withdrawal and substantial reduction of Indian troops. Then the Security Council passed another resolution on March 30, 1951, declaring that the holding of elections of the assembly in Indian-occupied Kashmir could not be construed as a plebiscite in the context of the UN resolution. The resolution added that only the UN could supervise the plebiscite/referendum in the whole and not a part of the disputed territory.

The resolution also directed India and Pakistan to refer their differences in that regard to arbitration. Pakistan accepted the resolution while India rejected it. Not only that, after several years of dilly-dallying India annexed the state of Jammu and Kashmir and made it one of its constituent units.

This was in clear breach of the UN resolutions and international law. It also violated the Indian Independence Act 1947 which gave the princely states the right to decide whether they wanted to join India or Pakistan or remain independent. The Indian action further contravened the Standstill Agreement signed by India and the ruler of Kashmir towards the end of October 1947 in which the then Indian governor-general, Lord Mountbatten, had put in a note that the accession of Jammu and Kashmir would be subject to reference to the people. But that condition remains unfulfilled to date. Hence the popular insurgency.

The EU report’s demand that Pakistan unilaterally withdraw its troops from Azad Kashmir is unfair unless India also withdraws its half a million troops and paramilitary forces from the embattled state. The Indian troops are an occupation army since they are drawn from different parts of India and not from Kashmir.

They have massacred 80,000 Kashmiris so far. But India denies the figure and instead admits to killing 35,000. Amnesty International has stated that more than 1,000 Kashmiris have disappeared while in custody of the occupying army. None of them is an outsider nor are the victims who lie buried in local graveyards. The US State Department Report 2006 on human rights records the extra-judicial killings, abduction and torture of Kashmiri militants and their family members and of the insurgents in the eastern region by Indian troops. This is corroborated by reports of other human rights bodies.

It is strange that the EU report should ignore such grave violations of human rights by the occupying troops in Kashmir. It may be recalled that some years ago, a team of British parliamentarians had demanded the holding of a referendum in Kashmir under international auspices. Baroness Nicholson should know about that. So what has prompted a sea-change in EU policy over the past several years? The reason could be that the events of September 11 have rendered obsolete all norms of human rights and self-determination.

The European Union should have adopted an evenhanded stance on troop withdrawal from Kashmir. Both Indian and Pakistani troops are aliens so both should vacate. Why just one side? In fact, the Indian troops should also vacate the former NEFA which was annexed and made part of the Indian Union.

The judicious approach would be to bring India, Pakistan and the People’s Republic of China around the table and facilitate a negotiated settlement. The European Union’s suggestion that Pakistan should ensure the return of Aksai-Chin to India is ridiculous. As for the 1963 Pak-China border treaty which delimited the frontiers between the two countries, it cannot be unilaterally abrogated by Pakistan in order to transfer that part of the land that lies on the Chinese side of the border to India.

The European leaders should be aware of the offer made by Islamabad to Delhi that both sides should show flexibility in their known positions instead of harping on rigid themes. While the Pakistani leadership has courageously offered to consider alternatives to a plebiscite, the Indian side refuses to change its mind on any territorial readjustment. The EU report certainly betrays an imperialist strategy to set one Asian state against the other and take sides with India.

The writer is a professor and dean of the faculty of management and social sciences, Balochistan University of Information Technology and Management Sciences, Quetta.

The population boom

YOU look at the numbers and you think: “That’s impossible.” Uganda had about seven million people at independence in 1962, and in only 45 years it has grown to 30 million. By 2050, just over four more decades, there will be 130 million Ugandans, and it will be the twelfth biggest country in the world, with more people than Russia or Japan. Its population will have increased eighteen-fold in less than ninety years.

Many people think that population growth is no longer a problem, and everybody somehow knows that it is politically incorrect to talk about it. Back in 1968, when Paul Ehrlich terrified everybody with his book “The Population Bomb,” it was seen as the gravest long-term threat facing the human race, but now it scarcely gets a mention even in discussions on climate change – as if the number of people producing and consuming on this planet had no relevance to how great the pressure on the environment is.

True, the population explosion has gone away in large parts of the world, in the sense that most developed countries now have birth-rates well below replacement level (2.1 children per woman), and that the global average, including the developing countries of Asia and South America, is now down to 2.3 children. That’s pretty impressive, given that it was 5.4 children per woman as recently as 1970. But there remains the problem of what you may call “inertial growth.”

The anticipated population growth in the next forty years will raise the total number of people on the planet from 6.5 billion to about nine billion. In other words, we will be adding as many extra people as the total population of the world back in 1950. But the other half of the growth comes mainly from Africa, already the poorest continent.

This may explain why it became politically incorrect to talk about population growth around 25 years ago. Nine out of the ten countries in the world with the highest birth-rates are African (the other is Afghanistan), and it seemed uncomfortably like pointing the finger at the victim. But runaway population growth is a big factor in making so many Africans victims, and it doesn’t help to stay silent about it.

Sometimes the steadily worsening ratio of people to resources just causes deepening poverty, as in the case of Nigeria, whose population by 2050 will reach 300 million. That is the same as the current population of the US, but Nigeria, apart from being virtually without industry, does not have one-tenth of the natural resources of the US.— Copyright