| July 23, 2007 | Monday | Rajab 07, 1428 |
When democracy goes bad
Tearing up arms treaties
Arab League’s peace initiative
The terror report
Tanvir Ahmad Khan
“WE do not want to go back to an elective democracy where corruption becomes all pervasive,” Lt Gen Moeen U Ahmed, the chief of the Bangladesh army, told a conference in Dhaka in April. Typical talk from a soldier who has thrust the civilian political leaders of his country aside –– but he does have a point, for the leaders in question are a pair of obsessives whose rivalry has poisoned Bangladesh’s politics for decades.
IN a historic breakthrough, the 22-nation Arab League has decided to send a delegation to Israel to discuss a peace initiative with its leadership. The foreign ministers of Egypt and Jordan, whose countries have peace agreements with the Jewish state, have been designated as the League’s point-men for this purpose.
IT WAS blissful to be alive in that momentous hour. For full 19 weeks, a combination of nameless fears, sheer short sightedness and boundless hubris had driven the executive to prevent the Chief Justice of Pakistan (CJP) from functioning, turning it into the worst assault on independent judiciary in the country’s chequered history.
For full nineteen weeks, in an unprecedented show of solidarity with and faith in the higher judiciary, the people of Pakistan, led by lawyers who made personal sacrifices by the day, demonstrated their outrage at what was seen as a great threat to the last rampart from which they could fight absolute and increasingly capricious rule.
On Day 134, the Supreme Court handed down a landmark judgment that may well usher in a new era of constitutionalism, rule of law and human rights.
It was not the first time that the higher judiciary of Pakistan had to face the consequences of the advent of arbitrary power. There is a veritable roll of honour of judges who declined to renege from their overriding commitment to the Constitution, looked around and found no support for their courageous decision from other organs of the state or even the people, and faded into dignified retirement.
In the course of time, the nation came to realise the importance of what they had done and this collective memory of the weakening of an important pillar of the state made them draw a line in the sand.What happened on March 9, stirred something deep in the soul of the nation. Deprived of even basic literacy, millions of Pakistanis were in no position to formulate the impropriety of the events of that dark day in constitutional or legal terms, but they instinctively perceived that the price of acquiescing in it would be a permanent loss of freedom. From one end of the country to the other, they stood this time in rain or sunshine to hail a hero who had not walked away.
There was an insatiable desire to understand what had happened in the past. As jurists and informed members of civil society shared their understanding of it with the people, past subterfuges like the law of necessity and the dressing up of a military putsch as a self-validating revolution lost their mystique.
Whether it was an ambitious general who began his rule by piling up pressure on the judiciary or a chain of Byzantine intrigues like the one that former Justice Sajjad Ali Shah has unveiled in the columns of this newspaper, the people made a simple but indispensable deduction: in a polity like that of Pakistan there are no dykes and defences against unbridled power except the higher judiciary. They came and just camped at its doorsteps.
Some members of the treasury benches in parliament have rushed to the media in the wake of the historic judgment made by the Supreme Court on July 20 to assert their representative status. The spin that they have tried to put on the entire episode has no
takers. The huge crowds who lined miles and miles of the routes that the Chief Justice took to explain the fundamental principles and purposes of the Constitution were amongst other things expressing their deep disappointment with the present parliament that was elected to mediate the passage from yet another seizure of power by the military to a fully democratic order but which ended up doing the opposite.
The Chief Justice is a man of law and he remained scrupulously committed to its exegesis. The millions who heard him or simply stood there to hail him as an icon of their aspirations were, however, haunted by the fear that the last act of this parliament would be to provide another long extension of military rule.
In a mystical belief that the Chief Justice could somehow restore the spirit of the Constitution, they shifted their hopes from a parliament that had turned its back on them as soon as the elections were over to his moral courage and constitutional fidelity.
In a classic reductionist situation, the parliament became the author of the Seventeenth Amendment while the Supreme Court emerged once again as the main bulwark against the distortion and corruption of the Constitution.
What the Supreme Court has done in a short but comprehensive order will be remembered for all times to come. Such is the loss of faith in national institutions that most people — amongst them men and women of experience and knowledge — believed till the judgment was actually read out that it would contain ambiguities and compromises of the past. There was a touch of disbelief as it was made public.
The Supreme Court had unanimously declared the Chief Justice’s petition to be maintainable; it had by a majority of 10 to three set aside the directive (reference) by the president under Article 209 (5); it had unanimously declared the compulsory leave order ultra vires and the order passed under it as having been passed without lawful authority; it had unanimously set aside as illegal the order restraining the Chief Justice of Pakistan from acting as a judge of the Supreme Court and/or the Chief Justice of Pakistan; it had unanimously declared the orders about the appointment of the honourable Acting Chief Justices to have been made without lawful authority; and it had by a majority of 10 to three set aside the direction (reference) of the president dated March 9, 2007.
In a terse but historic conclusion of the short order, the Supreme Court had ruled that “the petitioner CJP shall be deemed to be holding the said office and shall always be deemed to have been so holding the same.”
The people of Pakistan, with the exception of fascist elements who killed 48 persons on May 12, to prevent the Chief of Justice of Pakistan, Mr. Iftikhar Muhammad Chaudhry, from visiting the forbidden city of Karachi had always recognised him as the holder of this august office.
In the context of another trial in another clime and time, Vaclav Havel, the leader of dissent in Czechoslovakia and its first president in the post-communist era, pondered over the dilemma of the presiding judge who he believed had set out in the beginning to be an objective arbiter, listening without prejudice to the arguments of the prosecution and defence, the testimony of the witnesses and the defendants and to come to a just decision.
But the tyranny of the system made the judge into something else. Vaclav Havel described the eventual role of the judge in the following words: “the tragic symbol of a judiciary incapable of maintaining its independence and handing down the kind of verdicts that flow from the human, civil, and legal conscience of the judges; a judiciary fully aware of how it is manipulated by power, but incapable of defying that power and so, ultimately, accepting the pitiful role of a subordinate employee of the masters.”
There are self-incriminating statements by some former judges of Pakistan about constitutional petitions and even the trial of late Z.A. Bhutto that show that the process described by Vaclav Havel perverted the course of justice in Pakistan too.
Government ministers and propagandists are working overtime at the moment to establish that the executive put no pressure in the case of the Chief Justice of Pakistan and that it accepted the verdict without reservation. Let us welcome these statements and not argue that the government had no choice but to do so. That would be much too pessimistic as it would imply that the government has no capacity for introspection and for learning from experience.
Instead, let us hope that the government carries out an honest appraisal of the damaging consequences of being led by a small coterie blinded by narrow self-aggrandisement. This impermissible oligarchic style of decision-making not only created the judicial crisis that the Supreme Court has finally resolved with great knowledge of the law, wisdom and awareness of its responsibility to history but also a situation of anarchy and proliferating insurgency throughout the land.
One sincerely hopes that the best of legal minds and other commentators on our social and political predicament would apply their minds — just as the honourable judges of the Supreme Court have done —on every aspect of this epoch-making verdict to chart a safer course for the nation.
There is no doubt that the survival of the state of Pakistan today depends on the restoration of democracy and rule of law. There would have been no judicial crisis or its baleful consequences for the entire polity if Pakistan was a functioning democracy and if its parliament was willing to uphold law and not merely legitimise indisputably illegal and extra-constitutional actions of those who seize power in this hapless land.
The people of Pakistan are restive to assert the sovereignty of their will. Further denials of this will carry the risk of the total collapse of the state. It is a moment of truth for all concerned. President Musharraf should sit back and think through his doctrine of the unity of command.
In such a large army, there must be an officer who has the professional excellence, commitment to Pakistan, loyalty and knowledge of the world to take over the burden of the office of the chief of staff from him. Breaking free from the shackles that bind that powerful office with the noble office of the head of state — in the 21st century and in a land inhabited by intensely engaged people — he may still do something for which future generations would remember him kindly. It would enable him to hold free and fair elections that would serve the nation much better than the shadowy figures that go about seeking opportunistic deals.
The writer is a former foreign secretary.
Two political dynasties, alternating in power, have ruled Bangladesh ever since 1991. Among the larger democracies, only in the United States have two families, the Bushes and the Clintons, monopolised executive power for a longer time. But whereas the Bush-Clinton rivalry still continues –– if Hillary Clinton wins the presidency next year and goes on to win a second term in 2012, the two American families will have been alternating in power for 28 years –– the Bangladeshi rivalry is coming to an end. So, unfortunately, is democracy in Bangladesh.
Bangladesh’s democracy was never much to write home about. It won its independence from Pakistan in 1971, but there were 20 years of tyranny and military rule before the first genuinely democratic government was elected in 1991. This change had domestic roots, of course, but it was also part of the wave of non-violent democratic revolutions that began in the Philippines in 1986 and swept through Indonesia, Taiwan, Thailand and South Korea.
Two steps forward, one step back. Thailand’s democracy has now given way to military rule, and democracy in the Philippines isn’t looking too healthy either. But nothing compares with the fall from grace of Bangladesh, which is usually ranked among the five most corrupt countries in the world by Transparency International. The credit for the disaster goes largely to the two women who have alternated in power there for the past sixteen years.
Sheikh Hasina, prime minister from 1996 to 2001, is the daughter of Mujibur Rahman, the “Father of Bangladesh,” a former student agitator who led the movement for separation from Pakistan and then became the first leader of independent Bangladesh. He was an instinctive autocrat without a single democratic bone in his body, and he died in 1975 in a bloody coup by junior army officers who also killed his wife and all of his children except Hasina and one other daughter who were abroad at the time. So Hasina has a chip on her shoulder.
Khaleda Zia, her bitterest rival, is the widow of General Ziaur Rahman, the army officer who succeeded Mujib after a chaotic interval. He reversed most of Mujib’s policies, including socialism and a strictly secular state –– and then Zia also died in a hail of bullets in another military coup in 1981. So Khaleda also has a chip on her shoulder. She became Zia’s political heir, and prime minister during 1991-96 period and again from 2001 to 2006. Corruption flourished even more vigorously under her rule than under that of Sheikh Hasina.
Neither woman chose politics as a profession; both were driven into it by family tragedy. Neither woman is a monster: each would probably offer up her own life if it would guarantee a safe and prosperous future for her 150 million fellow-countrymen and women. But each loathes the other, and would rather die than compromise or cooperate. Too many of their supporters have the same attitude.
The view of General Ahmed, who has effectively been running the country since elections were cancelled in January, is essentially that democracy is to blame. Sheikh Hasina, out of power, declared a boycott of this year’s elections because she believed that the incumbent, Khaleda Zia, was going to rig them. In those circumstances, the election result would be meaningless, so the army intervened. And the general just doesn’t think democracy is right for Bangladesh.
But if it isn’t right for Bengalis, one of the most politicised, argumentative populations on the planet, then just who is it right for? Democracy in Bangladesh has gone horribly wrong because of the bitter heritage from the war of independence –– which, like most such struggles, was partly a civil war –– but the solution is to fix it, not to cancel it.
At the moment, General Ahmed is arresting hundreds of prominent political figures on corruption charges. Doubtless many of them are guilty, for that is how politics has been played in Bangladesh for decades. If they are found guilty by properly constituted courts and banned from further participation in politics, no great harm will be done.
If Sheikh Hasina and Khaleda Zia themselves were among those excluded from politics on the grounds that they engaged in corrupt practices, that would not be a bad thing, either. But politics –– democratic politics –– needs to continue. It also needs to continue (or rather, resume) in Thailand, and Pakistan, and all the other places where the voters were “deceived by the politicians,” or “made the wrong choices,” or whatever other formula the saviours in uniform use when they grab power for themselves.
People get things wrong. Politics is a messy business. As Winston Churchill said, “The best argument against democracy is a five-minute conversation with the average voter.” But he also said: “Democracy is the worst form of government –– except all the others that have been tried from time to time.”
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THE current fad of tearing up vital arms-control agreements was started by America when it abrogated the anti-ballistic missile treaty in order to build its missile shield. Russia followed suit last week by announcing that it would suspend its obligations under the conventional forces in Europe (CFE) treaty.
If the trend continues, the intermediate-range nuclear forces treaty could be next. And then Europe, freshly liberated from the cold-war threat of instant extinction, will be bristling with missiles. The US will have its missile interceptor base in Poland and a long-range radar in the Czech Republic that can direct a missile on to a target anywhere in Russia. To counter that, Russia will deploy long-range Iskander missiles in its enclave in Kaliningrad, behind the line of the Baltic states and right on the Polish border. Heavy tanks will once again roam the forests of Germany and central Russia, just like the good old days.
Does this sound insane on a continent which has said goodbye to war? It may do, but it could come to pass. For all the touchy-feely togetherness that Vladimir Putin and George Bush indulged in at their recent “lobster” summit in Maine, both leaders continue to send each other messages of a more traditional kind. Mr Bush is intent on pushing ahead with missile defence plans come what may, and is finalising an agreement with Poland. Mr Putin has made it crystal clear that if there is no compromise on missile defence, Russia is prepared to carry out its threat to point its missiles at Europe again.
No one should be surprised at Moscow’s latest threat, least of all Nato’s member states. The CFE treaty, amended after the collapse of the Warsaw Pact, has never been ratified by Nato members, because of Russia’s refusal to withdraw troops from Georgia and Moldova. The Kremlin does not link the CFE treaty with missile defence. Instead, it said that Nato’s expansion into eastern Europe violated the treaty, particularly as its three new Baltic members deployed alliance weapons on their territories, without signing the treaty. –– The Guardian, London
It is believed that the Arab League’s delegation will discuss with Israeli Prime Minister Ehud Olmert a revived Arab peace plan that calls for full Arab recognition of Israel in exchange for Israel’s withdrawal from all lands it had captured in the 1967, war and seeks its agreement to the creation of an independent and sovereign Palestinian state. The plan also envisages the resettlement of Palestinians who had fled from their homes in 1948 when Israel came into existence.
It may be recalled that Israel had rejected this plan when Saudi Arabia proposed it in 2002. However, it has now agreed to discuss some of its aspects but has rejected the return of the entire West Bank and the Golan Heights. It is also not willing to accept the resettlement of Palestinian refugees within its borders. In view of this, the Middle East specialists strongly feel that the Arab League delegation’s forthcoming visit to Israel is not likely to produce tangible results.
In most Arab countries, the reaction to the radically new initiative, (a departure from its earlier ones) by the Arab League was favourable, which shows that they have softened their attitude towards Israel in a bid to recover Palestinian territory that was lost in the 1967 war. It seems that over time the Arabs have realised that getting back the lost territory from Israel is more likely through diplomacy than war.
However, Hamas has been vociferous in its condemnation of the Arab League’s initiative and has termed it an act of betrayal of the Palestinian cause. This underlines the need for the participation of Hamas in the peace initiative. It is possible that Hamas may abandon its militancy if Israel also gives up its obduracy and accepts the creation of an independent Palestinian state with Jerusalem as its capital.
In the aftermath of the 1967 Arab-Israeli war, it was made clear that there could be no return to the 1949 armistice lines. In a speech to the Knesset on October 30, 1967, the then prime minister of Israel also reiterated that Israel would not allow the situation which prevailed before June 5, 1967 to be restored and stated that in the face of the Arab position of non-recognition of Israel his government would “maintain in full the situation as it was established in the ceasefire agreements.”
The UN Security Council, in November 1967, adopted a resolution, proposed by Britain, which emphasised “the inadmissibility of the acquisition of territory by war and the need to work for a just and lasting peace in which every state in the area can live in security.” This resolution set a new tone for the Arab-Israeli conflict, which thereafter revolved less around the fundamental Palestinian Arab challenge to the legitimacy of the state of Israel and more around the quest of Egypt, Syria and Jordan for the recovery of their lost territories.
In accordance with the UN Security Council resolution, Israel is bound to terminate its occupation of Palestinian and other Arab territories captured by it in the 1967 war. It should realise that the addition of territories will not necessarily guarantee its security. On the contrary, there is a valid fear that hostile Palestinians in the occupied territories will never agree to live under Israel’s rule in perpetuity and shall remain its potential enemies posing a big threat to its security.
As a result of the outbreak of hostilities in Palestine in 1947/1948, a large number of Palestinians abandoned their homes and fled to either safer places in Palestine or to neighbouring Arab countries. These Palestinians were labelled as “refugees” and were looked after by the United Nations. The UN General Assembly, however, upheld the right of these Palestinians to return to their previous homes and resolved that refugees wishing to return to their previous homes should be permitted to do so at the earliest and that compensation should be paid for the property of those choosing not to return.
Even before the reiteration of the right of return by the UN General Assembly, that right was already established under international law. Regrettably, Israel is not willing to accept these refugees. It argues that the exodus of Palestinians from the territory now under its occupation took place so long ago that it would be unrealistic and impracticable to rectify the situation now. Needless to say, the right of the Palestinians to return to their previous homes cannot be abandoned because of the passage of time, particularly when they want to return to their homes even after a period of 60 years.
Israel also claimed that it entertained no territorial ambitions on the territories it occupied in 1967. Yet, it annexed the old city of Jerusalem and also created Jewish settlements there with a view to ultimately integrating them into its national system. Israeli forces frequently demolished the homes of the Palestinians and occupied their lands, ostensibly for military purposes, which were given to the Jews for their permanent settlement which affected the demographic composition of the West Bank. As a result of Israeli policies and practices in establishing settlements in the Palestinian and other Arab territories occupied in 1967, the UN Security Council declared them illegal and an impediment to achieving a comprehensive and lasting peace in the Middle East.
Israel must understand that it was in its own interest not to prolong the resolution of the Palestinian problem. It should not ignore the fact that despite its strong and proficient armed forces its security will remain vulnerable in the absence of a comprehensive settlement of this issue.
However, Israel continues to deliberately violate the principle of the roadmap and is shying away from its commitment to peace in the Middle East. It is also ignoring the fact that a settlement of the Palestinian problem would make it an important regional power and a participant in the Middle East diplomacy which may be enormously beneficial to it.
It is time that the international community, particularly the United States, quickly grasped the importance of an early resolution of the Palestine problem and stepped in as a counterweight to restrain Israel from pursuing its rigid policy on this issue and to block its ambitions in the Middle East with a view to preventing further injustices against the Palestinians.
Instead of making obsequious overtures towards Israel, the US should put pressure on it to settle the Palestine problem (the biggest source of conflict in the Middle East) in accordance with the UN resolutions. Israel should also take a hard look at its policies towards the Palestine issue and change them radically in the interest of world peace.
The writer is a former ambassador.
A NATURAL temptation — to which some commentators already have succumbed — is to view the new National Intelligence Estimate on terror threats exclusively through the prism of the Bush administration’s dispute with Congress over Iraq.
President Bush, who habitually engages in the strategic conflation of the post-9/11 war on terror with the war in Iraq, sees vindication in the report’s conclusion that Al Qaeda will seek to “leverage” its Iraqi affiliate to attack the United States. His critics suggest that its broader conclusion — that Al Qaeda “will continue to enhance its capabilities to attack the homeland” — is hyperbole designed to intimidate the antiwar movement.
Both take too narrow a view of the report. Its overarching conclusion transcends Iraq: “We judge [that] the U.S. homeland will face a persistent and evolving terrorist threat over the next three years.” At the same time, it warns, international cooperation to root out terrorists could wane “as 9/11 becomes a more distant memory and perceptions of the threat diverge.”
Some will dismiss this warning as only slightly more useful than Homeland Security Secretary Michael Chertoff’s now-famous comment that he had a “gut feeling” the nation faced a heightened risk of terrorist attacks this summer. More likely, the secretary’s intestinal unease was a reaction to the intelligence that gave rise to the estimate.
Nor do we believe the release of the report was a ploy to scare Americans into supporting the president. Actually, the report is as much an embarrassment to the administration as it is a vindication. The language about Al Qaeda in Iraq that Bush seized on can be read as the logical follow-up to an observation in a previous estimate that “the Iraq conflict has become the ‘cause celebre’ for jihadists.”
At the time, critics of the war interpreted that as a judgment on Bush’s decision to invade Iraq in the first place, and they were right. Even more embarrassing to the administration is the report’s conclusion that Al Qaeda’s regeneration is attributable to the creation of havens in Pakistan. This should stiffen the spine of US diplomats in dealing with President Pervez Musharraf.
But the report should have even wider repercussions in Congress and the country. It isn’t just other nations for whom 9/11 has become a “distant memory.”
–– Los Angeles Times