THE Mumbai massacre has jolted South Asian elites from their dream of being co-opted into a transnational club of the super-rich. Their icons of prosperity and affluence are built on the slum-heaps of the underclass that in desperation often falls prey to the nefarious designs of unspecified non-state actors, if not to direct recruitment by RAW, ISI, CIA or Mossad.

The environment in which these gullible victims live makes them insensitive to the value of human life and lures them towards criminal mafias that play on their religious sentiments and sense of deprivation. It is a pity that the elites are awakened only when their opulent lifestyles are attacked. Even then they start looking for scapegoats instead of solutions.

The understandable outrage engendered by the Mumbai massacre and the siege of two iconic hotels among other important locations in south Mumbai including the city’s central railway station (which received much less media attention), was transformed by the Indian media into a hate campaign against Pakistan. Meanwhile, the Pakistani media was busy finding holes in the Indian government’s knee-jerk finger-pointing and in spinning conspiracy theories about the involvement of home-grown elements with a culpable link to acts of terror including the Samjhota Express blast. There was little effort on either side to restrain inflamed passions and analyse the situation in the broader context of the history of the Indo-Pakistan relationship.

While the opinion-makers of the two nations are busy finding the ‘real culprits’ of the Mumbai massacre in each other’s political backyards, the real villain of the piece is the development paradigm that both have adopted which caters largely to the elites and pays miniscule attention to the problems of the poor. In Pakistan, economic development has been most uneven and unbalanced, as a result of a flawed political evolution, with the army ruling, directly or indirectly, for practically the whole of its existence.

The dependence on foreign aid, largely the result of its close military alliance with the US since 1954 and renewed after its involvement in the two Afghan wars, has made Pakistan’s economy, unlike that of India, incapable of facing domestic and external shocks. Neither country has paid adequate attention to lifting the poor from their existence as sub-humans. The elites are more interested in achieving goals which hardly benefit the poor. Thus, while the Indian elites are keen to see India emerge as a superpower, those in Pakistan are focused on the country graduating into the middle-income category of nations. Neither of these ambitions is likely to be achieved, if at all, without any significant benefit, though with considerable cost, to the poor.

In India, the influence of a functioning democracy, as well as that of its more enlightened leadership — at least in the formative years — did moderate the excesses of its unequal development and the subjugation of its underclass. Something like this began to occur in Pakistan after the emergence of populist politics under the aegis of Z.A. Bhutto’s Pakistan People’s Party in 1970, only to be aborted by Gen Zia’s military coup and later by that of Gen Musharraf.

While both states have promoted a climate of hate and apprehension against each other, the Indian state has done so largely for tactical reasons, such as in the case of the Babri mosque desecration and the Gujarat genocide; the Pakistani state has used it for strategic purposes, such as in the cases of the Kashmir and Bangladesh (and, indirectly, the Afghan) conflicts. Both have used the religious card to foster their own brands of nationalism.

Rather than flaunt the Mumbai massacre as India’s 9/11, it is time for India to use it as an opportunity to negotiate a durable peace with its neighbour and to attempt, jointly with Pakistan, to mend the damage done to the polity and economy of the two nations in the haste of partition.

The fact that the people of both countries — despite the efforts of a jingoist minority — have become convinced of the futility of periodic wars and conflicts should give democratically elected governments in India and Pakistan the courage to proceed well beyond the present state of stalemate in their relationship. The success of secular elements in the Indian state elections held at the height of the storm created by the Mumbai massacre testifies to the maturity and understanding of the common people. Similarly, the tough action taken by the Pakistani authorities — albeit under external pressure and with apparently less than the wholehearted endorsement of the military — against extremist elements is unlikely to provoke strong adverse public reaction.

Unfortunately, both countries are trying to reach a solution through third parties — especially the United States — rather than through bilateral negotiations. Pakistan continues to be a faithful ally in the US war on terror mainly because of its dependence on US aid, which Pakistan’s elite and the military has become addicted to. India, backed by its business and technocratic elite, had also been seeking a closer relationship with the US in quest of its ambitions to become a superpower and in order to seal the nuclear deal. New Delhi’s reported offer to send troops to Afghanistan to fight terrorism can only produce a backlash from fundamentalists and hinder the process of reconciliation with Pakistan.

Mumbai could become a defining moment in the relationship of the two nations and for the future of South Asia as a whole, if instead of engaging in petty politics, the two countries looked at the larger picture and realised that peace and prosperity are indivisible. Neither India nor Pakistan, neither the elites nor the common people, will benefit from living in gated nuclear-armed neighbourhoods. The zero sum game of violence and exclusion needs to be converted into a large positive sum game in which South Asians can live in mutual trust and shared affluence and well-being.

For this, the ball is firmly in the court of India and Pakistan, who have jointly managed to stall the South Asian locomotive by pulling it in opposite directions. India must realise that its own aspirations will not be fulfilled with discontent and disaffection among its neighbours. Equally, Pakistan has to exert serious and sustained efforts to shed the stigma of a failed or rogue state and to cleanse its dysfunctional institutions at all levels. The peace process needs not only to be resumed but taken to a higher level in order to make a significant impact on the lives of the South Asian people as a whole and not only their elites.

syed.naseem@aya.yale.edu

IN the legal world any denial has to be specific and unambiguous. In legal parlance anything short of that is known as an evasive denial — which constitutes an admission.

The statements emanating from the presidency, referring to the so-called non-state actors in the context of the Mumbai attacks, amount to an admission of the fact that the men behind those attacks had links with Pakistan.

One is amazed not only at the haste with which the Indians blamed Pakistan for the Mumbai incident but also the speed with which President Zardari admitted that the perpetrators were non-state actors. In his interview with Larry King on CNN some time ago his comments had deeper implications.

As President Zardari’s domain of influence does not go beyond Pakistan it is reasonable to assume that he was not referring to the Indian non-state actors as it is for the Indians to decide that. Likewise, it is hard to imagine that he would be referring to non-state actors from other usual suspect nations in the region. Through this process of elimination, we in the end are only left with Pakistani non-state actors as only in their case the Pakistani president can say something with authority.

From a legal, as well as a common-sense, standpoint the issue is whether it is desirable to confess to something which the Indians have yet to prove. According to reports in the media the Indians have so far shared their evidence only with the US and perhaps some western governments. It is still not known as to what was the basis of the statement issued by the American secretary of state where she alleged that those involved in the Mumbai incident had links with Pakistan.

The evidence which has so far emerged from India through the media is flimsy, to say the least. It is extremely difficult for India to build its case on such sketchy evidence and India is well aware of it. Independent experts have already expressed surprise at the ease with which the Indians were able to establish the identities of the individuals involved as if all of them were carrying Pakistani passports on them.

And if there are any concerns regarding the role of the intelligence services, would sophisticated outfits that have for decades been working alongside the American CIA be so naive as to directly use Pakistani nationals in such acts? Anyone who has ever read a spy novel would be familiar with the lengths to which spy agencies go in order to hide the identities of their agents and to remove any footprints.

Clearly, India has a difficult task ahead if it wishes to convince the global community without some credible evidence that Pakistan or some non-state actors from Pakistan were behind these attacks. Going by the evidence which has surfaced so far it would be difficult to accept the Indian version without raising questions. In this scenario it would be indeed godsend for India were Pakistan to voluntarily admit to its role albeit through non-state actors. Once an admission is made to the extent of non-state actors the Pakistani government would find it extremely difficult to extricate the state of Pakistan from further fallout.

This is a trap which Pakistan has to avoid at all cost. Giving in to international cajoling and coercion and accepting the lesser charge of the involvement of its citizens is no solution. This devious plea bargain being imposed upon Pakistan is not a viable choice. Pakistan has been through this before in the context of the Khan network where, under American pressure, Pakistan voluntarily admitted that nuclear proliferation was taking place through the Khan network without its knowledge. Had Pakistan not made such a frank admission what would have been the implications for Pakistan keeping in view the fact that Pakistan is not a signatory to the Nuclear Non-Proliferation Treaty (NPT)? Would obligations of that treaty be applicable to a non-participating state like Pakistan — obviously not.

Any tactical mistakes made by the Pakistan government in this most delicate issue will have severe implications for the state of Pakistan. It is now widely said that voluntary admissions made during the time of Pervez Musharraf saved the Americans from great embarrassment in instances where they were not able to substantiate their claims with substantive evidence.

It was not Musharraf’s concern if, in the process of saving others’ skins, Pakistan appeared before the global community as an irresponsible state. Indeed, the Pakistani nation has no sympathy for those involved in terrorist acts in Mumbai; our worry is that we are being unjustly subjected to international pressure to confess to something we did not do. Due process of law requires that the accused should have an opportunity of defending himself after being told of the charges brought against him alongside all the evidence. In the current case evidence, if any, is reportedly being shared by India with countries other than Pakistan. The focus of the major powers is to force Pakistan into a confession and Zardari’s statements are not helping Pakistan’s case.

The writer is an advocate of the Lahore High Court.

BEFORE partition, united India was ruled by the British government under the Government of India Act, 1935. In 1947, the British left after partitioning the country into India and Pakistan as independent dominions with full freedom of self-rule. It was made clear that until both countries made their own constitutions, they would continue to be governed by the Government of India Act read with the Indian Independence Act, 1947 to ensure the continuation of legal order.

After making their constitutions, both countries could repeal the Government of India Act, 1935 and became sovereign independent countries and exercise their discretion when it came to joining the commonwealth. India made its constitution in 1949, while the Constituent Assembly of Pakistan passed the Objectives Resolution in 1949 to incorporate the Islamic way of life in the constitution. This resolution became a preamble in the first constitution of 1956, the second constitution of 1962 and third constitution of 1973. It is now incorporated as substantive part as Article 2A.

It is common knowledge that the constitution is the supreme document of the country providing a system of governance and all other laws made by the legislature are subordinate to it, including customary law, traditions and conventions. Any law, which is inconsistent with or opposed to the constitution can be declared invalid by the courts. The position of England is different, because England has one of the oldest monarchial systems with an unwritten constitution. However, it depends on the rule of law and survival of traditions and conventions which have preserved their history and monuments including the facade of their houses with uniformity manifest in their exterior and shape and in the measurement of plots.

In Pakistan the position is entirely different. We have the 1973 Constitution which is our supreme source of law. All laws must conform to and fall within the four corners of the constitution. Like India, we have also borrowed the judicial system from the Government of India Act, 1935 and while rewriting the provisions with regard to the appointment and removal of the judges of the superior courts, we have not used simple and unambiguous language, which has caused great confusion.

The Supreme Court has delivered judgments in the process of interpretation. One such confounding situation is whether the Chief Justice of Pakistan can be appointed directly by the president at his discretion or is to be the senior-most judge. In the constitution Article 177 clearly provides that the Chief Justice of Pakistan shall be appointed by the president and each of the other judges shall be appointed by the president after consultation with the chief justice. So the process of consultation starts with the appointment of a judge of the Supreme Court and not with the appointment of the chief justice. In the Al Jehad Trust case (judges case) the Supreme Court laid the rule of seniority to be followed in case of the appointments of judges where consultation is involved and not where consultation is not involved.

One view in legal circles propounded in favour of convention in the English courts is that the most senior judge in the Supreme Court be appointed as the Chief Justice of Pakistan, as is done in the appointment of acting chief justice as contained in Article 180 of the Constitution is not logical for two reasons.

Firstly, England does not have a written constitution so convention has the force of law.

Secondly, in Article 180 of our constitution the words “most senior of other judges” have been added by amending the provision of P.O. 14/1985 and likewise Article 177 can be amended by putting the same words for appointment of the Chief Justice of Pakistan and the whole controversy will come to an end. Now democracy is restored and parliament is supreme, and the army chief is summoned to brief the parliamentarians. Why is this amendment not made when this is a coalition government of the PPP, the MQM and the ANP and a friendly opposition in the shape of the PML-N? All believe jointly in the rule of law and the independence of the judiciary. It is only a question of a two-thirds majority where the PML-N would love to join in and cooperate. The sooner it is done the better as it would be for forging unity and allowing the government to deal with other important issues.

The writer is a former Chief Justice of Pakistan.