Lack of trust

PRECEDED by Assistant Secretary for South Asia Richard Boucher, a number of other Bush administration officials are to visit Pakistan soon for what are believed to be vital talks to sort out the irritants that have lately developed in the US-Pakistan relationship. The visits come in the wake of some domestic developments that have rocked Pakistan — the crackdown on the Lal Masjid rebels, the series of suicide bombings, including one in Islamabad, the July 20 Supreme Court verdict reinstating the Chief Justice, and a state of emergency scare. In the realm of foreign affairs, at least two US presidential candidates have threatened attacks on the Al Qaeda bases in Fata, the Bush government’s ambivalence about it, the enactment of a Pressler-like aid law, and the purported concern in Washington over Pakistan’s nuclear weapons in case there is a change of guards in Islamabad. While the domestic developments have weakened President Musharraf, nothing in the area of foreign affairs has hurt him more than the threats from America. They have come from both official and non-official quarters.

Winding up the National Assembly’s debate on foreign policy on Thursday, Mr Khursheed Mehmud Kasuri defended the government’s “successful foreign policy” and said that isolationism could be ruinous for Pakistan, and ruled out a change in it. Nobody expects, or perhaps wants, a change in foreign policy, but even those who agree with its broad contours seem worried over the gradual erosion of Pakistan’s importance as an ally in the war on terror, and the bullying which seems to have characterised America’s policy towards Pakistan for quite some time. One wonders why it is Kabul’s version that is accepted by the American media and government and not Islamabad’s in spite of all that Pakistan has been doing in the war on terror, deploying 100,000 troops in Fata, with 800 Pakistani soldiers lost in action and countless civilians killed and injured in suicide bombings. Yet from Washington one continues to hear the familiar rap — “do more”.

Taken together — the conditional aid law, the threat to act on “actionable intelligence”, and the “do more” advice — these developments must lead to some soul searching in Islamabad. If, in spite of all that Pakistan has been doing, Washington still does not trust Islamabad and seems to accept Kabul’s view of the situation, then clearly our foreign policy cannot be called half as “successful’ as Mr Kasuri claims. Pakistan has, of course, many assets, to which the foreign minister referred in his speech, but it seems we have not made use of these assets in a way that could give the country greater strength and earn it the respect and trust of the international community. Perhaps, the biggest factor hurting Pakistan’s interests and image is the continuation of the civilian-military mix that has been ruling the country for the last eight years. The Americans think, rightly or wrongly, that President Musharraf’s days are numbered. That is one reason why they do not trust his government. The nation wants a full return to democracy, and the world has seen how passionately the people of Pakistan long for it. Nothing perhaps will do more to earn respect for Pakistan than the assumption of power by a government that represents the people. A foreign policy run by a truly democratic government — with the military back in the barracks — will draw respect from all and perhaps remove the hurtful irritants that at present characterise the US-Pakistan relationship.

Probing the sugar crisis

SHELVED in panic after the powerful mill owners’ lobby cried foul last year, the National Accountability Bureau’s report on rising sugar prices has finally entered the public domain. Presented to the Supreme Court on Thursday, the bureau’s findings echo what has long been the view of independent observers and the country’s leading newspapers. According to NAB, the sugar industry in Pakistan is dominated by politicians from the treasury benches as well as the opposition. “Some of them, despite being in the government, have acted contrary to business laws/ethics and held sugar stocks that [are] tantamount to hoarding”, the report states. NAB lays the blame for the price hike — which first began in late December 2004 — at the door of eight sitting ministers and their party colleagues. Some opposition politicians have also been accused of sugar hoarding, manipulating prices and misusing the duty-free import facility. Little wonder then that sugar is one issue on which politicians, who are otherwise at each other’s throats, are quick to close ranks. A few voices of dissent have been heard, however. At the PML-Q central executive committee meeting in May 2006, several party leaders led by former PM Zafarullah Jamali had asked the prime minister to sack officials and ministers who, they alleged, were responsible for the sugar crisis. By then the NAB probe (aborted in March 2006) had been brought to a grinding halt. However, the National Assembly’s Public Accounts Committee continued with an inquiry into the sugar crisis and found that stockpiles held by millers exceeded permissible levels, creating an artificial shortage. Earlier, the 2004-05 Economic Survey of Pakistan had stated that the “formation of producer cartels in key commodities such as sugar” was contributing to food price inflation. In the next Economic Survey, the reference to cartels was dropped.

While price-fixing may be inconsistent with the dynamics of a free-market economy, this does not mean that commerce and industry should be free of regulation. Unethical practices such as hoarding and profiteering must be checked by the government, especially in the case of basic food items. Empowering the toothless Monopoly Control Authority is one option, but honesty of purpose will have to come first.

Repatriating Afghan refugees

IT IS no surprise that the UN refugee agency has appealed for an additional $10 million to cover this year’s repatriation costs for Afghans living in Pakistan. About 400,000 refugees are returning to Afghanistan this year, and after they have been repatriated, some two million will still be left here. While the call for them to return to their homeland is steadily growing louder — and with justification — it must be realised that they face a harsh life in Afghanistan, more difficult than the one they have known in Pakistan. This is especially true for the younger generation which, having been born in Pakistan and not having lived at all in Afghanistan, has few emotional links to their parents’ country. In view of this, sympathy and consideration for the needs of the returnees must accompany the process of voluntary repatriation, and adequate funds must be made available to them for the reintegration purposes. Greater care needs to be given to these victims of conflict who have been uprooted for decades for no fault of theirs.

However, the responsibility also lies with the Afghan government to make proper arrangements for their absorption and reintegration in society. On arrival, many refugees find their previous homes and land usurped by the henchmen of local warlords. Unemployment is acute and in the absence of jobs, there is concern that many of the returnees would be drawn into the narcotics trade, which makes up almost half the economy. Moreover, insecurity and violence prevail in Afghanistan where the government’s writ is confined to Kabul. The world community, that has a stake in seeing normalcy return to Afghanistan, must also make efforts to resettle the refugees, especially in view of the government’s limitations. So far its performance has been disappointing as many countries have promised much but failed to make good on their pledges.

Judiciary & constitutional control

AFTER the repeal of two constitutions and successive martial laws, East Pakistan separated and the remaining four provinces in West Pakistan agreed to live together under the Federation of Pakistan with maximum provincial autonomy.

Consequently, the Constitution of 1973 was framed by the elected members of the National Assembly prohibiting martial law with the division of powers among the three pillars of state: the executive, legislature and the judiciary.

The Constitution requires that there shall be a Supreme Court of Pakistan, a high court for each province and such other courts as may be established by law and no court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.

The procedure is prescribed in the Constitution for the appointment and removal of judges of the superior courts. The government of Prime Minister Zulfikar Ali Bhutto increased the salaries of the judges and perks including cars, houses, petrol and other civic amenities. The terms and conditions of service, including pension and other matters, are detailed in the fifth schedule of the Constitution.

Mr Bhutto was a barrister and a seasoned politician. He included in his cabinet lawyers and technocrats. He handled the judiciary with due care and caution and always tried to control it through the Constitution. During his five-year rule, Prime Minister Bhutto made seven amendments to the Constitution. The first amendment was made in 1974 modifying 17 articles relating to the judiciary, mostly curtailing powers, and including the transfer of judges from one high court to another. Article 199 was amended to exempt members of the armed forces from the purview of writ jurisdiction.

This was a great concession giving them protection from the scrutiny of the courts. The Second Amendment was made in the same year declaring the Qadianis as non-Muslims. By the Third Amendment in 1975, the period of preventive detention was increased from one to three months.

The Fourth Amendment was made in 1975 touching on several articles relating to the judiciary and stopping high courts from granting bail under their writ jurisdiction in preventive detention cases, and limited stay by a high court to six months in fiscal cases involving the revenue of the government.

The judiciary was to be separated from the executive at the magisterial level, and by the Fifth Amendment in 1976 the time for it was extended from three to five years. The demand was that magistrates be brought under the control of the high courts instead of the provincial government. Ultimately, after court intervention, the magistracy was bifurcated into judicial magistrates and executive magistrates under the control of the high courts and the provincial government respectively.

Additionally, the Fifth Amendment circumscribed the independence of the judiciary resulting in a hue and cry in legal circles. The then Chief Justice of Pakistan wrote a letter to the federal law minister complaining that some young Chief Justices of the high courts were unwilling to be elevated to the Supreme Court as judges and were recommending the names of those judges who were about to retire.

As provided for in the Constitution, a judge of the high court retires at the age of 62 years and in the case of the Supreme Court the retirement age is 65 years, hence there was an incentive of extension in service for three years. Young Chief Justices in the high courts did not want to give up the privileges, dignity and administrative control of the subordinate judiciary of the province.

Under these circumstances, induction in the Supreme Court was declined by the Chief Justices and accepted by retiring judges of the high courts, which was not fair to the Supreme Court. Acting on the Supreme Court Chief Justices’ letter, the government provided remedy in the Fifth Amendment and gave fixed tenures of five years and four years to the Chief Justices of the Supreme Court and high courts respectively. After the expiry of the tenure, if a Chief Justice still had time to serve, he had to step down and serve as the most senior judge or retire from service.

In consequence, two Chief Justices, Sardar Mohammed Iqbal of the Lahore High Court and G. Safdar Shah of the Peshawar High Court, stepped down and accepted retirement. In Lahore, the most senior judge, Moulvi Mushtaq, was not appointed Chief Justice. Feeling terribly disappointed and disillusioned, he proceeded on long leave and went away to London.

The Fifth Amendment also provided that for the appointment of an acting Chief Justice, another judge could be nominated, instead of the most senior one, and allowed the transfer of a judge from one high court to another for one year without his consent.The Sixth Amendment was made in 1976 providing that if a Chief Justice reached the age of superannuation before the expiry of a fixed tenure, he would be allowed to complete the tenure beyond the age barrier. The beneficiary of this amendment was Chief Justice of Pakistan Yakoob Ali Khan who reached the age of 65 during his fixed tenure but was allowed to continue. It was during this time that I was appointed registrar of the Supreme Court after having served in the federal ministry of law and parliamentary affairs since 1973. In that capacity, I watched these developments from close quarters.

Prime Minister Z.A. Bhutto went for early elections in March 1977 and allowed a common symbol to the opposition parties united under the banner of the PNA. The Pakistan People’s Party won the election of the National Assembly but the opposition alleged rigging and boycotted the provincial assemblies’ polls. There was a law and order situation resulting in chaos and turbulence. Parleys were going on between the government and the opposition parties and in the meantime the Seventh Amendment was introduced in the Constitution to determine the validity of the election of the prime minister.

This was also not accepted by the opposition parties; hence this amendment could not be acted upon and became redundant. It is stated that both the government and the opposition had nearly agreed on some formula to resolve the crisis but General Ziaul Haq, the chief of army staff, intervened, suspended the Constitution and imposed martial law in the country on July 5, 1977, and Mr Bhutto was taken into protective custody.

Begum Nusrat Bhutto, wife of the deposed prime minister and chairperson of the Pakistan People’s Party, filed a constitutional petition in the Supreme Court against the imposition of martial law. The petition was being heard by a bench presided over by Chief Justice Yakoob Ali Khan. An application was filed with the prayer that Mr Bhutto and other detainees, who were in different jails, be brought to the Sihala Rest House in Rawalpindi, and kept there till the conclusion of the proceedings. This prayer was allowed but the martial law government was not too pleased.

The CMLA withdrew the Sixth Amendment and in consequence Yakoob Ali Khan stepped down and was replaced by Justice Anwarul Haq, who was administered oath as the Chief Justice of Pakistan. Justice Moulvi Mushtaq Hussain was recalled from long leave and appointed Chief Justice of the Lahore High Court and acting chief election commissioner.

A bench of five judges in the Lahore High Court, presided over by CJ Moulvi Mushtaq Hussain, tried Mr Bhutto for the murder of the father of Mr Ahmed Raza Kasuri and sentenced him to death.

An appeal was heard in the Supreme Court by a bench presided over by CJP Anwarul Haq but was dismissed by a split verdict of four to three. The death sentence was not reduced to life imprisonment and a review petition was dismissed. The rest is history.Strange are the ways of nature. My main purpose in writing this piece is to show how the judiciary was controlled and the powers of judges reduced or restricted by amendments in the Constitution which were not challenged in the courts. The merry-go-round of civil governments chased out by military rulers continues with support from politicians compromising for individual interest and other relevant quarters making genuine democracy an elusive prospect.

The writer is a former Chief Justice of the Supreme Court of Pakistan.

Missile incident

LAST Monday, a missile crashed into the ground near the village of Tsitelubani in Georgia. The weapon failed to detonate, but the event has nevertheless sparked new tensions between the small, democratic country and Russia.

Details are still emerging, but the Georgian government says that radar records prove that a Russian Su-24 jet entered Georgian airspace from the northeast, dropped the missile and then returned to Russia. Georgian officials also claim that the recovered weapon was a Russian anti-radar missile designed for use with the Su-24, an aircraft not in Georgia's arsenal.

There is speculation that the target was a nearby Georgian radar installation. The Russians, for their part, have insisted that the Georgians attacked themselves, a Kremlin defence that has become unsettlingly familiar and no more convincing. A US official familiar with the case says that the Georgians' evidence is credible and that there is no evidence to support the Russians' story. The missile incident disturbingly resembles a March incident in which a missile was fired at a government building in Abkhazia, a Georgian territory that is home to pro-Russian rebels.

–– The Washington Post