KASHMIR is once again in the news much to India’s chagrin and Pakistan’s surprise. Since Independence, the Kashmiri territory has been a bone of contention between them, resulting in more than 60 years of hostile ties.

The current disturbances, however, have a different tone.For one, it was the Indian government’s inept handling of the Amarnath land issue that triggered the crisis and secondly, it is indisputably spontaneous and indigenous. Such a crisis was waiting to happen, given the Kashmiris’ anger and resentment resulting from decades of a brutal occupation, coupled with India’s corrupt and inefficient administration.

India has remained rigid on the issue and claims Kashmir is an integral part of it. New Delhi holds Pakistan responsible for any disturbance in the Indian-administered territory. It has thus failed to respond to any of Islamabad’s offers, whether it was Benazir Bhutto’s tentative overtures, or Nawaz Sharif’s bold initiative or even Gen Musharraf’s ‘out-of-box’ solutions. Musharraf’s ‘concessions’ notwithstanding, India continued to suspect Pakistan’s intentions.

Sadly, New Delhi has never realised the intensity of Kashmiri alienation from India. It also allowed the peace process to go into a deep freeze. In the process, it disappointed democrats in Pakistan and also failed to capitalise on Musharraf’s desperate desire to become an apostle of peace. This may well have been a mistake, as indicated by Omar Abdullah, president of the Jammu and Kashmir National Conference and who lately regretted that India had lost the opportunity of sorting out the Kashmir issue with Musharraf.

In fact, it should not have been lost on New Delhi that there has been continuity in Pakistan’s policy on Kashmir ever since the Sharif-Vajpayee meeting in February 1999. It was an approach that arose from the recognition that the core issue of Kashmir could neither be frozen nor resolved through the use of force by Pakistan or brutal suppression by India. Instead, what was required was a process which could be slow but incremental, focusing on steps to meet the political, physical and economic conditions of Kashmiris on both sides of the Line of Control.

Now the dispute over the transfer of land for Hindu pilgrims has snowballed into a nationalist upsurge that may well be the most serious in years. This seemingly innocuous action has set the Valley on fire; and this in turn is being stoked by intense feelings of anger. More worryingly, recent events have greatly diminished the appeal and effectiveness of leaders such as Mirwaiz Umar Farooq who has warned that the peaceful mass agitation could turn violent.

While the Indian government continues to live in the past, its political commentators have recognised the widespread nature of the current agitation. As observed by the well-known political commentator Kuldip Nayar: “This is a message far beyond the allotment of land. It reflects anger and desperation.” He has warned that “religion has played a key role in consolidating the Kashmiri community” and this is something that should make “the intelligentsia in the country realise that the status quo in the area cannot last indefinitely”.

Indian civil society activists too, have called for international intervention “to prevent a humanitarian catastrophe in Kashmir”. A report by Human Rights Watch in 2006 described a steady pattern of arbitrary arrests, torture and extra-judicial executions by Indian security forces. And a survey by Doctors Without Borders in 2005 found that Kashmiri Muslims “prey to the Indian troops and paramilitary had suffered some of the most pervasive sexual abuse in the world”.

Another Indian writer, Pankaj Mishra, in a recent piece warned that “a new generation of politicised Kashmiris has now risen; the world is again likely to ignore them — until some of them turn into terrorists with Qaeda links”. He cautioned that “a brutal suppression of the non-violent protests will radicalise a new generation of Muslims and engender a fresh cycle of violence, rendering Kashmir even more dangerous — and not just to South Asia this time”.

India is a secular democracy that now aspires to be a global player. It espouses moderation and tolerance in the resolution of differences, yet when it comes to Kashmir, the Indian leadership falls back on discredited responses. The reasons advanced over the years have lost validity and are no longer tenable. It is time for India to acknowledge that Kashmir’s self-determination would not hurt India for the disputed territory already enjoys a special status by virtue of Article 370 of the Indian constitution, nor would secularism be damaged by the secession of Kashmir.

Some Indians feel that self-determination would mean the loss of the entire state. This need not be true either for the secessionist sentiment is concentrated in the Valley, an area with a population of four million that is 98 per cent Muslim. It is not only people like novelist and social activist Arundhati Roy who have called upon the Indian leadership to heed the Kashmiri call of azadi. Those with nationalist credentials too have remarked on the increasing estrangement of the Valley from India and questioned New Delhi’s view that separation from Kashmir would affect its secular policy.

In such a situation, some may lament India’s failure to respond swiftly and positively to Gen Musharraf’s four-step formula for moving towards a solution on Kashmir. India may have been right not to respond to the erratic proposals of an unrepresentative leader. But it is now incumbent upon it to take the initiative to restore a degree of normalcy by reducing the army’s presence in the territory, ending repressive measures and resuming cross-LOC trade and movement of the people.

Finally, it has to resume the peace process secure in the knowledge that in the current political dispensation in Pakistan it has a serious and legitimate partner with which it can reach agreements that are fair, equitable and durable. India cannot fulfill its aspirations to be a great power with Kashmir hanging around its neck like the proverbial albatross, nor can the region achieve the peace and economic prosperity that it so desperately desires.

THE new establishment’s decision not to restore some of the sidelined judges has brought smiles to some faces and disappointment to many more.

Both reactions are bad for democracy’s fresh experiment. If anybody is celebrating his success in getting the better of some judges-under-restraint and dividing the lawyers he is perhaps unable to comprehend the consequences of relying on chicanery. If lawyers, civil society activists and individual citizens are already feeling frustrated, the process of democratisation could be arrested.

One hopes there is still time to respect the demands of democracy, the rule of law and fair play and restore all the judges dropped on Nov 3, 2007.

It is possible to argue that the leaders of the lawyers’ movement and the political factions trying to run ahead of them are not entirely blameless. They could not have believed that the mass support mobilised by them would be strong enough to bring the regime to its knees. Perhaps they could not or did not have the time to decide whether their agitation was in the nature of a trade union strike or a political movement for change.

If the former was the case the risk in stretching the struggle beyond the endurance of the judges and lawyers should not have been ignored. In such struggles it is crucial to assess when the agitation should be wound up and inflexibility replaced with pragmatism. If the agitation fell in the second category then the strategy recommended for long-term political movements should have been adopted — and in this there is room neither for short-period ultimatums nor for promising success within days.

But the independence of the judiciary is not a matter that concerns lawyers alone; it touches on some fundamental requisites of a democratic state. The foremost argument in support of restoration of the judges is the absolute need to undo the effects of the extra-constitutional proclamation of Nov 3, 2007. The lawyers’ demands and constitutional propriety apart, this was a part of the people’s verdict on Feb 18 as the electorate rejected not only Gen Musharraf’s front men but also all that he had done to extend his reign.

It is unfair to say that the people did not vote for the judiciary’s independence, because among the factors contributing to their alienation from the Musharraf regime, the sack of the judiciary figured at the top.

The argument that the proclamation of Nov 3 and actions taken thereunder were validated by a de facto judicial authority is manifestly untenable. The plea for the restoration of judges is at a par with the consensus-backed resolve to revive the 1973 Constitution. The latter demand has never been rejected on the ground that the arbitrary changes in it have been upheld by one set of judges after another. The reason is that in a democratic dispensation the people have the right to lay down the basic law that the judiciary is only authorised to interpret.

Also fruitless are references to the judiciary’s past sins and its subservience to dictators. The argument that the judiciary’s past stands in the way of doing justice to victims of autocracy fails on three counts. First, the judges are being punished for breaking from an ugly tradition and not for upholding it. Secondly, the way to prevent the judiciary from sinning is to respect its independence. Thirdly, making the restoration of judges subject to the whims of the executive will amount to making them subservient to the latter.

That the changes effected in the judiciary after Nov 3, though lacking in constitutional sanction, pose a problem is not disputed. But the impossibility of finding a way out has not been demonstrated. The point that actions of extra-constitutional regimes cannot be selectively addressed is valid. But this view only reinforces the case for reviewing all arbitrary legislation since 1958 to date along with the revival of the 1973 Constitution.

It is essential that the government pays serious attention to the consequences of its refusal to restore all the judges. The people believe that the moral high ground is occupied by the judges who only did what had been expected of them since 1954. Not restoring some of them will cause deep fissures in the judiciary — there will be judges who were retained by Musharraf, judges appointed after Nov 3, judges chosen to rejoin the Bench, and judges marked out for ditching. Differences of opinion on points of law make a judiciary strong but one cannot say the same about it if many of the judges consider themselves as carrying a heavy moral handicap.

Also, it is impossible to justify the exclusion of judges from the pledge to heal wounds. The judges issue has become a big sore. A large number of people have made significant sacrifices for the cause of the judiciary’s independence. Their feelings of betrayal will cause dangerous tensions in democratic lobbies.

The incipient cold war between the main erstwhile coalition partners is developing into a confrontation that could consume all their energies. The exigencies of power politics will distract attention from the all-important task of democratic consolidation. And this at a time when the multi-dimensional crisis of the state demands the greatest possible harmony among all political actors.

Moreover, the frustration that is likely to be caused to lawyers in particular and civil society in general, should not be disregarded. Theirs has been an exceptionally healthy movement. Its cause ranks higher and nobler than the stature and interest of the principal players. It roused a sizeable segment of civil society. As a non-violent, non-communal and pluralist movement it has set standards for public interest agitation and that are worthy of emulation. It has demonstrated possibilities of forging unity among the federating units through common struggles. Above all, this movement has helped the people rediscover their potential as agents of change.

The message that is being sent to the people is that whatever the nature of the regime they are not going to be allowed to contribute to governance, to the dispensation of justice or the formulation of policies that will affect them and the generations to come. This will increase apathy among some of the activists and push others into extremist camps. Eventually public discourse will peter out into a babble over trivialities and the people’s democratic instincts will shrivel into nothingness.

Dynamic civil society movements provide healthy blood to all human collectives. A government that deliberately ignores this principle can have no claim to being considered democratic or modern. Or even civil.

ON Tuesday, PPP co-chairman Asif Ali Zardari was sworn in as Pakistan’s 12th president. After the oath-taking ceremony, one expected him to clearly outline his vision for a politically viable and economically stable Pakistan. Such a vision would have included strategies for countering the scourge of extremism and ameliorating the nation’s financial woes.

With the international press calling him a controversial politician with little experience in governance and diplomacy and a leader of an unstable and “nuclear-armed Pakistan”, this would have been a wise thing to do. Instead, his official address to the nation as president was nothing more than rhetoric and slogans.

Mr Zardari faces a host of challenges: the war on terror, hostile ties with neighbouring states including India and Afghanistan, conflict in Balochistan and the north, an economic slowdown, inflation, an energy crisis, the issue of the restoration of judges, a deteriorating law and order situation, the cry for provincial autonomy and the settlement of the water conflict between Sindh and Punjab, to name a few.

The people may be happy at the victory of democratic forces in Pakistan but they have simultaneously showed concerns over reports in both the national and international press about the ‘soft’ horse-trading in the ranks of politicians and the use of political pressure tactics against some parliamentary groups including the PML-Q forward bloc in Punjab, the Jatoi, Mahar and Arbab groups in Sindh and independents in the other provinces and in parliament. A large number of the people in Sindh also termed the new friendship with the MQM as an ‘over-reconciliation’.

In the light of these concerns, it is important to look beyond the Sept 6 presidential election and discuss the crisis and constitutional challenges faced by Pakistan as well as the role of the president in resolving these. To begin with, what will be the powers of Asif Zardari as president?

The presidency has never been a balanced business. It has worked either as a rubberstamp or an overactive institution. One now feels the need for a middle path that is conventionally followed by all parliamentary democracies. This would mean conferring on President Zardari limited discretionary powers with a view to giving him a role that does not reduce him to a rubberstamp nor allows him to act as an overlord.

If we look at the constitution through the ages, we see how it made the prime minister all-powerful and reduced the president to a ceremonial position. However, Ziaul Haq’s Eighth Amendment in 1985 was another extreme as it endowed the president with supra-constitutional powers to sack the prime minister and dissolve the National Assembly.

More recently, the damage done to national cohesiveness by Gen Musharraf is not easy to repair. This exercise cannot be conducted in isolation; it needs the nation’s acceptance to do so. It will require a national consensus; a fair and straightforward discourse between the provinces and the federation; a dialogue among all four provinces and political forces; and a PPP–PML-N understanding.

We have to improve the 1973 Constitution to conform to the spirit of the 1940 resolution because this document, damaged by perpetual amendments put in by dictators as well as elected authoritarian rulers, cannot sustain the wounds of the people, especially of those in the smaller provinces of Balochistan, Sindh and Pakhtunkhwa.

Gaining the confidence of the army is another challenge for Mr Zardari who has been working quietly on it and especially on army chief Gen Ashfaq Kayani. This is especially the case when one considers Mr Zardari’s failed move to curb the ISI that some allege maintains links with Taliban supporters.

On Tuesday, Mr Zardari promised that the president shall be subservient to the parliament. During his various interviews and talks previously, he also said that the president’s position should be ceremonial. The stance has been that the president should not have the powers to dissolve the National Assembly and that the Seventeenth Amendment introduced in the constitution by Gen Musharraf should be abolished. One hopes that these promises are fulfilled quickly.

Military dictators subverted and altered the constitution to their own advantage. Will the new president revert to his late father-in-law’s constitution and deliver a new social contract to strengthen the integrity of the federating units of the state or will he preserve the existing powers? This remains a million-dollar question.

The writer is secretary of the Sindh Democratic Forum, a civil society think-tank.

zhalepoto@yahoo.com