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| November 17, 2007 | Saturday | Ziqa’ad 06, 1428 |
The oil slip
Aids awareness in schools
Let justice be done
OTHER VOICES - Sri Lankan Press
ON Nov 11, General Musharraf told a press conference in Islamabad that the recent amendments to the Army Act 1952 (No XXXIX) will not target ordinary citizens. He did not explain what he understands by the term ‘ordinary citizens’ and what was the need to make these drastic modifications at this dark juncture in our country’s history.
CONTRARY to the pledges given repeatedly by the president to the nation and the opposition, the caretaker government that took the oath of office on Friday is anything but neutral. A loyalist, pro-GHQ set-up, the composition of the caretaker government has come as a great disappointment to the people. We had been told all along by President Pervez Musharraf and former Prime Minister Shaukat Aziz that the caretaker governments in Islamabad and in the four provinces that would oversee the general election would be truly neutral. However, as it emerged on Friday, the interim government, with Mr Mohammedmian Soomro as prime minister, consists largely of PML-Q men and President Musharraf’s cronies. Mr Soomro himself is a PML man and has been Senate Chairman because of the support of the PML-led coalition, while some other key posts — such as information and interior, to quote just two — have gone to a PML man and one of the president’s buddies from Kakul. This makes a mockery of the concept of an impartial interim set-up. There are, no doubt, some former bureaucrats and non-political personalities in the new cabinet. But since there has been no consultation with the opposition on the cabinet’s make-up, even the best intentioned of ministers will remain controversial.
With some opposition leaders calling for a boycott of the general election if the emergency continues, the pro-PML character of the interim government could reinforce their belief that it is useless to expect transparent polls, and that the best course for the opposition will be to resort to agitation. Unfortunate as such a decision will be, the government will have itself to blame if the continuation of the emergency and the highly partisan nature of the new cabinet lead to a derailment of the political process and create hurdles in the way of what the president calls the third phase of the transition to full democracy.
Does the staffing of the cabinet with retired generals and media managers known to be firm believers in ‘enlightened moderation’ mean that the pitch has already been queered for all parties but the PML and MQM? Or perhaps, with a blatantly pro-military set-up firmly entrenched in Islamabad, the Musharraf camp thinks it can afford to be a little generous to the opposition at the lower levels and offer it a more agreeable set of caretakers in the four provinces. A good bargaining chip! Otherwise how else can one explain the five-day gap between the formation of the cabinets at the centre and in the four provincial capitals? Doubts about whether the general election will be credible have now been reinforced by the kind of interim government that has been set up. Foreign observers may come in droves to observe polling, but they will hardly be in a position to detect the subtle and behind-the-scenes role which the partisan among the caretakers will play to ensure an outcome that will more or less mean a continuation of the present set of rulers, strengthened by media control and a reconstituted judiciary.
THE government was caught between a rock and a hard place hours before it completed its five-year term on Thursday with world oil prices bouncing back on tight supply concerns to cover the losses suffered earlier this week. If the government didn’t raise domestic oil prices it risked further erosion in the revenue generated from the petroleum levy — it is already losing Rs5bn a week. It therefore left the hard decision for the caretaker set-up. If it tried to burden the consumers on its last day in office, it risked popular resentment only months before the promised elections. Having capped domestic oil prices at the present level in January when the world crude market was around $55-56 per barrel, the government found itself in a dilemma when crude prices shot up by 80 per cent. They touched the historic peak of $98.62 per barrel last week. The government felt that it would stand to lose a staggering Rs80bn in the current fiscal on account of the petroleum levy if world oil prices didn’t drop any time soon and if it didn’t pass on the increase to consumers. That would mean all budgetary targets going haywire. High world prices are already straining the effort to close the current account gap. It would particularly hit hard the efforts to contain the fiscal deficit at four per cent this year.
An increase in oil prices in Pakistan will unleash a new wave of price hikes and the genie of inflation will be out of control. Inflation was over nine per cent last month. It will fuel an economic slowdown that has already set in because of political uncertainty and imposition of emergency rule for an indefinite period. Yet economists in the government and independent ones agree that the increase in domestic oil prices is inevitable. The way the oil price issue has been handled goes to show that the Aziz government intentionally dithered over taking the hard decision and left it to its successor in order to avoid a political backlash. Or did it fail to anticipate that the era of cheap energy is over? Whatever the case, the question is how to prevent an increase in domestic prices from causing recession, which is imminent in view of worsening political conditions and low investor confidence due to the emergency. The best course for the caretaker government that was sworn in on Friday will be to gradually start sharing the burden with consumers while taking measures to counter the domino effects of the price hike.
IN what can only be described as a welcome initiative, the ministry of education, in collaboration with the National Aids Control Programme, will begin teaching students about HIV/Aids in public schools from January. This was a long overdue step as we all know too well that awareness about any ailment is crucial to its prevention and that can only come through education. That education will be imparted from a young age means that the message has finally sunk in with the authorities: they can no longer afford to sidestep an issue for fear that many may be uncomfortable with it. By the same token, it will be foolish not to include sex education in this initiative for that is essential in spreading awareness of HIV/Aids and other sexually transmitted diseases. One cannot ignore the subject of sex when discussing Aids and to couch it in other terms or be vague about it as one has seen in advertisements on the issue will be a great disservice. People need to be told the truth in an upfront and mature manner so that they can be better informed about their choices. By teaching youngsters that Aids can be contracted by also engaging in unsafe sex, we prepare them to make better decisions. Denying them this — and other information about reproductive health — spreads misinformation and, worse, puts them at risk of contracting diseases.
Although observers believe that Aids does not pose as big a health risk as it does in say India or South Africa, it does not mean the issue should be taken lightly. There are 100,000 reported cases of Aids in Pakistan but that number could spiral out of control if awareness campaigns with direct messages aren’t launched. The government must partner itself with NGOs working in this field and ensure that the message is spread to every village in the country and all aspects of stigma associated with it are removed.
The civilians can now be tried by the military courts on charges ranging from treason, sedition and attack on army personnel to “assaulting the president with intent to compel or restrain the exercise of any lawful power” and “giving statements conducive to public mischief”. It goes without saying that virtually anyone in the country, including the federal cabinet members, what to talk of the ruling party parliamentarians, can be prosecuted under the latter provision due to its vagueness.
One of the most tragic aspects of this amendment is the fact that it has been made retrospectively effective since January 2003. It is a cardinal principle of law that statutes are never made retrospective, particularly when it would impair any rights or obligations already acquired or incurred. A retrospective statute contemplates the past and gives to a previous transaction some different legal effect from that which it had under the law when it occurred. The whole legal edifice of a country is based on this postulate, and the courts thus are strict in giving retrospective effect to penal enactments than civil one. And what can be more penal than trying a civilian in a military court?
We all have an idea as to why the law has been made retrospective. There remain hundreds of missing civilians whom even the Supreme Court of Pakistan failed to recover for almost a year. This retrospective amendment may now be used to conduct trials of these missing persons in military courts.
The Army Act was enacted in 1952 but it came into force only on April 1, 1955, through a notification in the official Gazette. The Act applies to army personnel but also to persons who are accused of seducing or attempting to seduce any army persons from his duty or allegiance to the government of Pakistan. The amendment under question now extends the scope of the 1952 Act by covering civilians who commit offences which are:
1.Committed in relation to defence or security of Pakistan or Armed Forces of Pakistan punishable under the Explosive Substance Act 19082.Prejudicial conduct under the Security of Pakistan Act 1952
3.Punishable under the Pakistan Arms Ordinance 1965
4.Liable to punishment under the Prevention of Anti-National Activities Act 1974 5.Punishable under the Anti-terrorism Act 1997, and
6.Triable under the Pakistan Penal Code 1860’s Sections 109 (abetment), 117 (abetting commission), 120-B (criminal conspiracy), 121 (waging war against Pakistan), 121-A (conspiracy to commit offences punishable by Section 121), 122 (collecting arms with intention of waging war against Pakistan), 123 (concealing with intent to facilitate design to wage war), 123A (condemnation of the creation of the State and advocacy of abolition of its sovereignty), 124 (assaulting president, governor with intent to compel or restrain the exercise of any lawful power), 124-A (sedition), 148 (rioting, armed with deadly weapon), 302 (punishment of Qatl-i-amd), 353 (assault or criminal force to deter public servant from discharge of his duty) and 505 (statement conducive to public mischief).
A similar amendment was carried by the Z.A. Bhutto government in 1977 to cover civilians under the rubric of this law by inserting sub-clause (iii) in clause (d), and another clause (dd), in section 2 of the Army Act. These insertions were made during the midst of agitation against Mr. Bhutto’s government in April 1977 and it is not a coincidence that, 30 years down the road, General Musharraf has chosen the same much maligned route.
The difference despite the thrust being the same should not be lost on anyone. The 1977 Amendment was passed by a Parliament at the behest of a popularly elected civilian prime minister while the present one has been introduced as an Ordinance by a serving Chief of Army Staff. More importantly, the insertions in the law could not save Mr Bhutto’s government.
Despite the recent change in the Army Act, the matter remains debatable as to whether a civilian can be tried under this legislation. There are rulings of the superior courts that civilians can only be court martialled when the army is called in aid of civil power under article 245 of the Constitution. Even in such an eventuality, an enabling provision also has to be made in the relevant law.
Many may look at the change in the law as an attempt to try terrorists. The legal system of Pakistan cannot be equated with that of the western countries, like the United States and Britain, where the accused enjoy immense rights. The laws are already quite stringent and special and terrorist courts are operational; the Musharraf regime could have improved upon the functioning of these courts rather than adopting a lop-sided approach by starting with the most harsh and extreme measure.
There is a need to improve upon the functioning of Pakistan’s legal system; millions of dollars have been given by international agencies like the Asian Development Bank to make justice accessible to common man and the end result of all this exercise carried out is conducting trial of civilians in military courts.
It is a myth that military courts can dispense justice in a better fashion than the civilian ones. If this had been the case, the civilian setup throughout the world would have adopted the military approach to handling of cases. However, this is not the case and the civilian system, although slow and sometimes frustrating, operates in a much more cautious manner with lots of checks and balances to protect the fundamental rights of the citizens. Let us not forget the principle “do unto others as you would have others do unto you. Their tastes may not be the same.” We have seen this happening in the past in our country’s unfortunate chequered history but we never seem to learn!
The author is an advocate of the Supreme Court of Pakistan, based in Islamabad.
aneesjillani@yahoo.com
Child soldiers and human rights
Defence Affairs Spokesman Minister Keheliya Rambukwella has found fault with Human Rights Watch for its duplicitous conduct vis-à-vis the Government and the LTTE.
Speaking at the weekly security briefing the Minister referred to the army of child soldiers who were present at the funeral of Thamilselvan in Kilinochchi and asked if HRW was blind to this fact while it focused only on the death of the LTTE political Commissar.
The Minister also blamed the media for not highlighting this fact when the UN and European Union are expressing concern on the issue of child soldiers.
We trust that Louis Arbour and those of her ilk who went to town on alleged human rights violations by the Security Forces would take note of this most damning evidence of the recruitment of child soldiers by the LTTE.
…It is very well known that many Human Rights groups sympathise with the LTTE. If not they will be out of business. Hence, they are quick to blame the government and partial to the outfit.
However they cannot pretend to be blind to the ground realities of a guerrilla war. The Minister’s lament is a familiar echo of similar sentiments expressed by all Government spokesmen during the three decade-old conflict where the accusing finger was always directed at the Government with the LTTE atrocities ignored or downplayed by Human Rights groups. …The LTTE had given a firm undertaking to UN Special Rapporteur Olara Otunu to stop recruiting child soldiers and during the peace talks undertook to rehabilitate the conscripts and return them to their parents.
The picture at Thamilselvan’s funeral with children in combat fatigues tells a different story. At least now, will those who lecture the Government on human rights take stock of the situation and pay attention to the rampant infringement of human rights that is going on behind the Wanni curtain? (Nov 16)
A call to obey conscience
The statement that COPE Chairman Wijedasa Rajapakshe made after crossing over to the opposition is certain to jolt the conscience of all parliamentarians. His remarkable declaration that he has all the required moral strength to go against any powerful force in the world but not the power to go against his conscience, should inspire all politicians when they take decisions in the present hour of national crisis.
…The main thrust of MP Rajapakshe’s statement in parliament is that the government should take effective steps against those involved in fraud and corruption through which unscrupulous persons have robbed the country of vast amounts of its revenue… Of course, some may have doubts about the veracity and accuracy of the allegations against the suspects. However, when a prima facie case against any person has been established, it is the duty of the authorities to take appropriate follow-up legal action.
It is not merely a campaign that the COPE Chairman has taken up against suspects…But this is a case on behalf of the people who had been deprived of what is due to them... Rajapakshe’s contention is that it is this corruption, fraud and inefficiency of the state machinery that causes most of people’s difficulties today…
Ignoring this public-spirited approach, the government orchestra has already begun playing the smear campaign tune against Rajapakshe through the state media. Even the moderate and soft-spoken Minister Susil Premajayantha unleashed a diatribe against him accusing him of playing a role in the conspiracy to topple the government. Central Environmental Authority (CEA) Chairman Udaya Gammanpila… proceeded to mount his charge against him…In the days ahead there will be many allegations against Rajapakshe from those hurt by his bold statements… However valid his call for obeying one’s conscience, it is doubtful whether the bulk of our parliamentarians would respond to it positively… (Nov 16)