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DAWN - Opinion; August 8, 2003

August 08, 2003

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Pak-Afghan crisis: a historical view

By Murtaza Razvi


PAKISTAN’s geopolitical realities and its history link it naturally to the crisis in neighbouring Afghanistan. Pakistan has legitimate stakes in the outcome of the crisis and hence a crucial role to play in its resolution.

When Pakistan came into being the Afghan government was quick to reject the Durand Line, which was drawn by the British in 1893, as the international border between the two countries. Afghanistan laid claim to the larger Pushto-speaking areas that fall in Pakistan’s North-West Frontier and Balochistan provinces. This led to heightened tensions between the two countries, so much so that Afghanistan, within two months of the creation of Pakistan, became the only country to have opposed Pakistan’s membership of the United Nations.

The Durand Line was drawn arbitrarily by the British negotiator Mortimer Durand with the British empire’s interests as the sole factor behind it. It divided the Pukhtun tribes that inhabit the region on both sides of the Pak-Afghan border. The population of the Pukhtuns in Afghanistan now stands at nearly 13 million and forms just over 50 per cent of the total Afghan population. On the Pakistani side of the Durand Line, there are some 14 million Pukhtuns. It was for this reason that the former Afghan King Zahir Shah — himself an ethnic Pukhtun — raised the issue of creating a greater Pukhtunistan comprising the majority Pukhtuns who live outside Afghanistan in Pakistan’s North West Frontier and Balochistan provinces.

The demand had some resonance among the Pukhtun nationalists of Pakistan in the 1950s, but Islamabad refused to entertain the thought of ceding any territory and firmly rejected the idea, insisting the Durand Line must remain and be recognized as the international border between the two countries. The status of the Durand Line, however, remained a constant cause of friction throughout Zahir Shah’s reign.

That said, the Durand Line has also remained a very porous border at best, as tribal Pukhtuns, intermarrying into their cousins and trading and doing business with Afghans without much let or hindrance, cross it freely.

Zahir Shah was deposed in 1973 by one of his own kinsmen, with tribal leaders declaring independence and refusing to accept the writ of Kabul. In the cities, the Afghan communists gradually emerged as the main opposition group demanding the abolition of the monarchy. The Soviet Union first helped stage a coup d’etat against the new monarch and then sent in its own forces to bolster the takeover of the government in Kabul by Babrak Karmal in 1979.

The tribal warlords, however, refused to extend any support to the communist regime and launched an armed resistance against it in their respective areas. Some five million Afghans fled the country as a result of the Soviet invasion and the civil war — 3.5 million of them crossing over the Durand Line to seek refuge in Pakistan.

This made Pakistan a frontline state for the United States. Washington funded a proxy war against the occupying Soviet forces in Afghanistan. The then dictatorial ruler, General Ziaul Haq, saw the American agenda as an opportunity for him and whole-heartedly offered the use of Pakistani territory for training, arming and funding Afghan guerilla fighters, the mujahideen.

After the Soviets withdrew from Afghanistan in 1989, and the Soviet Union collapsed soon thereafter, the Americans swiftly packed up their bags and left Pakistan and Afghanistan to clear up the mess of their proxy war.

The ISI felt it could no longer ignore the temptation to seek to draw strategic advantages from the internal rifts among the Afghans and the civil war that followed the departure of the Soviet forces. The refugees were fast becoming a burden on Pakistan’s poor economy after international donor agencies scaled down humanitarian aid. The refugees would only go back if order was restored to Afghanistan. Moreover, the ISI also saw the wisdom of lending support to the majority Pukhtuns mujahideen still fighting off other smaller ethnic groups, who had joined forces under the banner of Northern Alliance. The latter mainly comprises Tajik-Afghan groups and forces, which have traditionally opposed Pakistan.

The Taliban, a majority of whom attended Saudi-funded seminaries in Pakistan and returned to their base in the southern city of Kandahar, showed some promise of bringing the situation under control if they were helped by Pakistan. The ISI thus actively began to support, train and fund the Taliban’s march towards Kabul.

The world at large, including the United States and the key Arab countries, Pakistan’s key allies during the Afghan war, saw no problem with Islamabad’s support of the Taliban as a viable force that could govern Afghanistan. In fact, after the Taliban seized Kabul and established control over 90 per cent of Afghan territory in 1996, Saudi Arabia and the UAE, besides Pakistan, granted the Taliban government official recognition. The Northern Alliance continued to exercise control over a number of cities in northern Afghanistan and wage war on the Taliban.

Then came September 11, and the world began to change. The Taliban, after their refusal to hand over the Al Qaeda suspects — accused of masterminding the 9/11 attacks — to the US, were ousted from power by the United States military action. Pakistan once again became a frontline state and a key ally in the global war against terrorism. This required making a complete U-turn in Islamabad’s short-lived policy of supporting the Taliban.

The subsequent installation of Hamid Karzai’s government in Kabul under the aegis of the US and the UN is at best a transitional phase in the governance of Afghanistan. Elections leading to an elected government are still to be held, for which the existence of certain conditions is a must. The latter include, first and foremost, disarming of the warlords who continue to control nearly all other big and small cities except the capital Kabul.

Pakistan, because of the obvious factors involved, cannot disengage itself from developments in Afghanistan. Besides, a large number of Afghan refugees are still in Pakistan and would not return to their country unless normality prevails.

These factors define Pakistan’s need to ensure that a politically stable and a Pakistan-friendly Afghanistan emerges out of the current chaos prevailing in that country. Pakistan is also looking forward to playing a greater role in the UN-sponsored and internationally funded reconstruction process that can only begin after the situation in Afghanistan stabilizes, at least to a point where Kabul is able to extend its writ beyond the capital and its precincts.

The mob attack on Pakistan’s embassy in Kabul in July, however, added yet another new dimension to the Pak-Afghan relations in the post-Taliban era. This clearly showed that despite the fact that Mr Karzai wants good neighbourly relations with Islamabad, there are strong elements within Afghanistan and in his government, who are opposed to building friendly relations between the two neighbours.

The recent wave of anti-Pakistan feelings was sparked by reports that the Pakistan army entered and established its control over the northern border region of Mohmand tribal area — an area lying along the Durand Line, which is technically part of Pakistan but was left to the local tribes to rule themselves. Establishing the writ of Islamabad over this tribal belt was necessitated by American intelligence reports that said remnants of Al Qaeda and the Taliban were seeking refuge in this area.

This brought about a coordinated action by the American troops on the Afghan side of the border and a similar action by the Pakistan army on Pakistan’s side.

A tripartite committee comprising Pakistani, Afghan and American officials stationed in Afghanistan has been formed to look into the dispute. The Pakistan army is operating on Pakistan’s side of the Durand Line, as was confirmed by the American forces operating on the Afghan side of the border. Given Pakistan’s threat perceptions about India, the ISI still sees some validity in its assertion of seeking a strategic depth in Afghanistan. First of all, Pakistan has obvious stakes in seeing the return of normality and peace to Afghanistan. Secondly, the road to Central Asia and access to that emerging market with its vast trade potential and natural resources passes through Afghanistan. And finally, being actively engaged in a state of high alert for the past two years on its eastern border with the Indian army, trouble on its western border is the last thing Pakistan could bargain for.

For now, it seems, there is no cause to worry about the prospects of a revival of the old dispute over the Durand Line. Also, the rationale for a Pukhtunistan is all but dead in the face of the tribal infighting in Afghanistan that has been going on since the mid-’70s. If the Afghans are not able to achieve a consensus on the formation of a united national government that they can all respect and live with, they are hardly in a position to invite their Pakistani Pukhtun cousins to join them in a united Pukhtunistan. Secondly, and more importantly for Pakistan, Pakistani Pukhtuns are very well integrated in their own country.

Afghanistan’s neighbours, including Pakistan, can make this long process a less painful one by not getting involved in its internal tribal, ethnic and political conflicts. These are not going to resolve themselves overnight; when a credible socioeconomic and political infrastructure has been created in Afghanistan that offers equal opportunities for growth to all its people regardless of their tribal or ethnic linkages, only then will such disputes become a thing of the past.

The institution of Wakf

By Syed Imad-ud-Din Asad


THE term ‘wakf’ literally means ‘detention.’ In Islamic law, wakf denotes the permanent dedication, by a Muslim, of any property

for any purpose recognized by Islamic law as religious, pious, or charitable.

Wakf causes the transfer of ownership, of the thing dedicated, to God. But as God is above using or enjoying any property, its usufruct or profits are reverted, devoted, or applied to the benefit of mankind. The motive of law, in authorising wakfs, is to enable the dedicator to secure spiritual advancement and rewards in the life to come, in addition to gaining good name in this life.

The concept of wakf was unknown in pre-Islamic Arabia. Islam introduced and developed this institution. Wakf has its origin in the Traditions of the Prophet (peace be upon him). The Quran, though it contains several injunctions that deal with charity, does not even mention it. The first wakf mentioned in the Islamic texts, which is also considered to be the basis of the law of wakfs, is that of Omar Ibn Al Khattab. Al Bokhari narrates it in the following words:

Ibn Omar reported, “Omar In Al Khattab got land in Khyber. He came to the Prophet, peace and blessings of Allah be upon him, to consult him about it. He said, ‘O Messenger of Allah! I have got land in Khyber. I have never obtained a property more valuable than this. What do you advise about it?’ He replied, ‘If you like, make the property itself to remain inalienable, and give the profit from it in charity’.”

Wakfs were frequently made in the lifetime of the Prophet. In fact, the Prophet himself made a wakf of a land acquired by him for the benefit of travellers. However, the institution did not assume rigid legal form till the second century A.H.

Any property can be the subject of wakf. A valid wakf may, therefore, be created of shares in a joint stock company, money, etc. The validity of a wakf is determined by the possibility of everlasting benefit being derived from it by any form of dealing of which it is capable, or by converting it into something else. It is only where the subject matter is totally unfit for being turned into profitable use, that its dedication fails.

The declaration of wakf can be made either verbally or in writing. The use of the word ‘wakf’ is not a must in the declaration. It is enough, if from the general nature of the grant itself such a dedication can be inferred. In a judgment Mr Justice Syed Amir Ali said: “Muslim law relating to wakfs owes its origin to a rule laid down by the Prophet of Islam; and means ‘the tying up of property in the ownership of God the Almighty and the devotion of the profits for the benefit of human beings.’ When once it is declared that a particular property is wakf, or any such expression is used as implies wakf, or the tenor of the document shows... that a dedication to pious or charitable purpose is meant, the right of the wakif is extinguished and the ownership is transferred to the Almighty. The donor may name any meritorious object as the recipient of the benefit.”

The above given judgment and the definition lay down the following conditions necessary for constituting a valid wakf: 1. The property, forming the subject of wakf, must belong to the dedicator at the time of dedication; 2. The object of wakf must be recognised by the Islamic law as religious, pious, or charitable; 3. The object of wakf must be indicated with reasonable clarity; and 4. The dedication must be permanent.

The dedicator may himself act as manager of the wakf, or he may appoint a competent person for this job. If he decides to appoint a manager, then the dedicator has the right to lay down rules for the management and administration of the wakf. The manager is bound to follow these rules. However, if once a manager is appointed, the dedicator cannot interfere in the affairs of the wakf, unless he has reserved such power to himself.

The main principles according to which a wakf is administered are: 1. The directions of the dedicator must be carried out; and 2. All that is necessary for the preservation of the wakf must be done. It must be mentioned that where a clear charitable intention is expressed in the instrument of wakf, it will not be permitted to fail because the objects happen to fail, but the usufruct or profits will be applied to objects as near as possible to the objects that failed. In the English legal phraseology, this is called ‘Doctrine of Cypres’

A wakif is the person who permanently dedicates his property for a purpose recognised by the Islamic law as religious, pious, or charitable. In order to be a wakif, a person must be: 1. A Muslim; 2. Of sound mind; and 3. A major. It must be mentioned that, according to certain jurists, even non-Muslims can make wakfs, if the objects for which the dedication is made is lawful according to the Islamic doctrine.

A person in whom the management and administration of a wakf vests is Mutawalli. He has no right in the property belonging to the wakf: the property is not vested in him and he is not a trustee in the technical sense. His status is merely that of a superintendent or manager. Any person who is a major and has a sound mind can be appointed a mutawalli. Females and non-Muslims can also be mutawalli of a wakf. Except in certain cases, religion and gender are no bar to qualification.

The Islamic institution of wakf has a wider scope and purpose than that of trust in the English law. The institution became so popular and important in Islamic countries that, in most of them, a special ministry was established to deal with the administration of wakf properties.

There is a view that the English concept of trusts originated from the Islamic wakf. There are several reasons for this conclusion. First of all, wakfs were in vogue in the Muslim world several centuries before the introduction of trusts and uses in England. Secondly, it were the Franciscan friars who introduced trust and uses in England, in the thirteenth century. It must be remembered that it was a time when there were several instances of contact — chiefly due to the Crusades — between the West and the Muslims.

St. Francis, founder of the order that introduced trusts and uses, went to Egypt during the Crusades, in 1295, and was captive of the Muslims for some time. Also, on two previous occasions he had unsuccessfully set out for Egypt and the Muslim Spain, thus evincing a particular interest in the Islamic world. Thirdly, there is a huge difference between the English trust and the Roman fedei commissum, to which the trust is sometimes attributed; whereas, there are remarkable similarities between wakf and trust.

Even if one disregards the arguments in favour of the trust originating from the wakf, it still cannot be denied that there are numerous similarities between them and that the developed Islamic notion long antedated the first English probing towards such a concept.

Where from here?

THE Bush administration responded to the release of the joint congressional inquiry’s report on 9/11 intelligence failures with confident assertions that any problems have been taken care of. President Bush stated that “my administration has transformed our government to pursue terrorists and prevent terrorist attacks.”

And FBI Director Robert S. Mueller III said that while the bureau was still implementing changes recommended by the report, the commission’s findings were already out of date: “While the report provides a snapshot of the FBI at September 11, 2001, the picture of the FBI today shows a changed organization.”

The choice of tense in these statements is significant: The government has already been “transformed,” the FBI already “changed.” It is true that the past two years have seen the biggest reorganization of American government in decades, and Mr. Mueller has made significant changes at the bureau.

Yet the show of confidence that deficiencies identified in this report are already a thing of the past seems premature. While America is unquestionably better positioned today than before the attacks to confront terrorism, it is far from clear that American counterterrorism is today functioning optimally.

In fact, the joint inquiry report only begs the question of what a serious appraisal of the intelligence community’s progress would show. The congressional investigation focused chiefly on what happened before the attacks, far less on what has been done since. There is no doubt that 9/11 prompted a universal realization that fighting terrorism had to be the central priority of those responsible for American security. — The Washington Post

The constitutional anomalies

By Fatehyab Ali Khan


THERE is a consensus in the country that the army should have no role in politics and that the military high command should be under the

control of the highest political leadership. And there are no two opinions about the fact that there should be democracy in the country.

However, there are different opinions about the kind of democratic setup that we should have and the manner in which the setup should operate. But there is no difference of opinion that the people should have the right to elect their government in a fair and transparent manner.

A constitution is the fundamental law of the land, and the basic framework for governance. The statutes must conform to the superior norms contained in the constitution. Pakistan’s rulers have not only amended the constitution but have hoodwinked the people by introducing far-reaching changes in the statutes such as the Political Parties Act, the Representation of People’s Act and Qanoon-i-Shahadat, thereby altering the superior law of the constitution itself.

After the departure of Nawaz Sharif and suspension of the Constitution by General Musharraf, political parties in the opposition have been demanding restoration of the constitutional structure existing prior to October 12, 1999. At the same time, they have been describing it as the unanimous constitution of 1973. These parties should tell the people in clear words which constitution they want to be restored, because before October 12, 1999, it was not the unanimous Constitution of 1973 but Ziaul Haq’s constitution which was in force. Compare the two documents — the unanimously adopted Constitution of 1973 and the constitution as it stood in 1985 — and the extent to which Ziaul Haq had mutilated the 1973 Constitution becomes clearly evident.

After the separation of East Pakistan in 1971, Z.A. Bhutto made a reference to the Supreme Court as to whether the truncated assembly could frame a constitution. The Supreme Court presided over by Justice Hamoodur Rahman, answered in the affirmative. During the chaotic period of 1972, the ruling elite wanted a presidential system but the country’s mature leadership demanded a federal parliamentary system, and all the parliamentary parties unanimously passed the 1973 constitution.

However, when unilateral amendments were made in the Constitution the parliamentary opposition stood against them and kept opposing them until 1977. The PNA declared that the 1977 elections were not transparent and demanded fresh polls. But before the Bhutto government and the PNA could make public the agreement they had reached, Ziaul Haq imposed martial law in the country. The democratic forces, however, continued their struggle through the MRD.

Ziaul Haq virtually changed the basic structure of the unanimously adopted Constitution of 1973 and held non-party elections. The MRD boycotted these elections and declared that the 1985 amendments amounted to promulgating an altogether new constitution, which should be scrapped and the country’s original Constitution of 1973 be restored. But the non-party parliament rubber-stamped the amendments contained in Ziaul Haq’s RCO (Revival of Constitution Order, which was his LFO) The MRD authorised Ms Benazir Bhutto, who was then its convener, to challenge in the Supreme Court the constitutional changes imposed by Ziaul Haq. The Supreme Court gave a three-point judgment in 1988 in Benazir Bhutto’s

petition:

1. National and provincial elections are a political process; national and provincial assembly elections should be held on a party basis.

2. When the National Assembly is dissolved, it is a constitutional requirement to hold general elections within 90 days.

3. The federal government is not complete without a prime minister.

Ziaul Haq had not appointed a caretaker prime minister when he dismissed Junejo and the Majlis-i-Shoora in 1988 nor did he hold elections within 90 days. After this judgment of the Supreme Court, Ziaul Haq’s amendments of 1985 became extra-constitutional.

Both the Treasury Benches and the opposition have cleverly suppressed the fact that the oath of office administered recently to the members of the National Assembly and Senate was that of Ziaul Haq’s Constitution and not that of the original Constitution of 1973.

Ziaul Haq sought refuge behind Islamization to introduce gender biased laws which take Pakistan into pre-medieval times. These laws such as enforcement of Hudd, Tazeer and Qanoon-i-Shahadat are highly controversial and discriminatory against women and contravene the substance and spirit of the original constitution of 1973. And these are the laws which our political stalwarts want to protect.

To achieve his political purpose, Ziaul Haq destroyed the principle of one-man one-vote which was, with immense wisdom, enshrined in the procedure laid out for the election of the president. In the 1973 constitution, the electoral college for the president comprised only the National Assembly and the Senate. Ziaul Haq enlarged the electoral college to include members of the provincial assemblies. According to the original 1973 Constitution, the National Assembly elected on the basis of population and the Senate, representing equality of the federating units, elected the president. When Ziaul Haq included members of the provincial assemblies in the electoral college, the indivisibility of the principle of one-man one-vote disappeared. Provincial assembly members now voted first to elect the Senators, and second, voted along with the senators to elect the president.

Ziaul Haq was aware that suspending or keeping in abeyance the constitutional machinery amounted to subversion of the constitution which was a treasonable act punishable by death under Article 6 of the 1973 constitution. By keeping the Constitution in abeyance, he also kept Article 6 in abeyance. He tried to run the country’s affairs with a nominated Majlis-i-Shoora, maintaining that Islam does not provide for political parties and general elections.

When he failed, he took cover behind the referendum through a clause which was introduced in the Constitution by Z.A. Bhutto’s seventh amendment and got himself elected as president for five years. Article 6 was revived only by the elected Majlis-i-Shoora after 8.1/2 years of suspension through the Revival of Constitution Order in 1985. Probably they struck a deal with him.

To sum up, we have three constitutional scenarios:

1. The unanimously adopted constitution of 1973 which includes the amendments introduced by Z.A. Bhutto.

2. Ziaul Haq’s constitution of 1985 with the Junejo-Nawaz Sharif amendments.

3. General Musharraf’s amendments in Ziaul Haq’s constitution.

The attitude of some parliamentary political parties is most surprising. Their parliamentary leaders had signed the unanimous constitution of 1973 and had taken oaths of allegiance to stand by it and protect it, but today the same parties, under the cover of religion, are trying to protect the amendments Ziaul Haq made. This amounts to breaking their oath of allegiance as provided by the constitution of 1973.

Although the general elections were held in October 2002, the Majlis-i-Shoora has not been formally convened because the joint session to be addressed by the president, which is essential, has not been called because of the deadlock on the Legal Framework Order. Success in the current dialogue between the government and opposition on the LFO will be a good augury, although it will in no way be different from the one witnessed in the dialogue held between Ziaul Haq and the members of the National Assembly elected under his Revival of Constitution Order.

The political parties holding the above views should formulate their constitutional aims and incorporate them in their election manifestos. Meanwhile, they should give attention to the people’s general welfare, employment, peace and security, education, housing, health, freedom and provincial autonomy.

They should prepare for the next general elections. The party or parties which win the next elections will have the privilege to propose and enforce a constitution of their choice. There should be no effort on their part to impose their will on the people through back door devices.