DAWN - Opinion; July 01, 2006

July 01, 2006


Charter: diplomats’ view

By Tariq Fatemi

WHILE much has been written on the ‘Charter of Democracy’ signed by former prime ministers Benazir Bhutto and Nawaz Sharif, little has been written on how this document is being viewed by local representatives of foreign powers, especially those who have a major interest in a strong, stable and peaceful Pakistan.

Their views are not likely to have a direct impact on internal politics but should, nevertheless, be of interest in view of the common belief that much of what “happens” in the country, is linked to the wishes of one or more of the major powers.

It is important to note that Islamabad’s well-informed diplomatic corps was still in the midst of examining the charter when it was surprised by the vehemence of the government’s reaction to it and the sharp nature of the remarks made by senior functionaries to a document that the government claimed was of little relevance. If the charter was seen as unimportant by them, surely a wiser course would have been to simply ignore it. Instead, their statements helped the opposition cause by drawing greater attention to the document than would have been the case otherwise.

When this issue was discussed with the diplomatic circles here, one could discern a grudging admiration amongst them over the manner in which the two exiled political leaders were able to set aside, even if temporarily, their differences. Most observers were of the view that the 36-point charter was strong evidence of their resolve to return the country to a genuinely democratic form of government. What interested them most was the clarity with which the major problems and shortcomings that have plagued the country were identified and the measures suggested to set things right. All this does not mean that the charter is either perfect or comprehensive. It cannot be given the fact that such documents reflect broad areas of consensus and purposefully leave out contentious issues.

Many considered it disappointing that the government chose to attack the personalities of the two signatories, rather than the contents of the charter, exposing an inherent weakness in the government’s approach. It goes without saying that if there were major shortcomings in it, as claimed by government spokesmen, these should have been identified and alternatives offered.

The one issue of constant interest to the diplomatic corps is that of civil-military relations in Pakistan. Students of our history are familiar with the established pattern of the past many decades. Civilian leaders are kept on a tight leash for a few years, then accused of inefficiency and corruption before being “booted out”. In fact, texts of “take-over” speeches have become predictable and consist of the usual litany of allegations that are meant to serve as an “indictment”. The irony, however, lies in the fact that the military ruler, having trashed the concept of democracy, on the plea that it was not “suited to the genius” of the people of Pakistan, then seeks to introduce what he claims is “true” democracy. Of course, this does not cut much ice with the people, nor passes muster with foreign patrons, as evidenced by statements from even close friends like the United States.

Even more contemptuous is the pattern of taking on board politicians to give the regime a “civilian face” to enhance its acceptability abroad. In fact, some local diplomats lament that the present government, which began with ill-concealed contempt for politicians and politics, brought on board some of those same corrupt politicians who had been condemned by it. When in Brussels, a European Commission official had once remarked half-jokingly that there was great advantage to having so many of Pakistan’s federal ministers on the country’s exit control list as this would ensure that they would stay at home and concentrate on their responsibilities. Sadly, neither NAB cases nor ECL restrictions have inhibited these gentlemen from travelling all over the globe.

It is, however, true that notwithstanding the tough negotiations that preceded the charter, what lies ahead of the two leaders is going to be much more difficult. The most frequently asked question is how they expect to implement the provisions of the charter. Surely, the government has no interest in it, and even less in its concepts and ideas. But if the current cooperation between Ms Bhutto and Mr Sharif can be maintained through the elections, it is not inconceivable that they could obtain much more than a working majority. If these proposals were then to be implemented, it would bring about a radical transformation of the entire philosophy underpinning the role and responsibility of the armed forces that have exercised absolute power for much of the country’s history.

The government’s apprehension that the charter represents a danger to it and even to the current dispensation is therefore understandable. The document brings into sharp focus the stark contradiction between the rule of law and the working of elected, representative governments on the one hand and the unprecedented power, privileges and perks that the rulers have acquired over the years on the other. With each military regime, these privileges have been enlarged, expanded and then sanctified, through ordinance, legislation, convention or custom. The result is that there is no sphere of the nation’s life, whether political, economic, social, educational or cultural, that has not come under the influence of the men in uniform. Western historians and analysts have claimed that the country has gone through unprecedented militarisation. Admittedly, many of these officers are men of talent and integrity and it would be a shame not to take advantage of their expertise. But the rationale for their nomination has not been their competence or expertise, but the mere fact that they are or have been in uniform.

The current rulers are fond of ridiculing the records of earlier civilian governments, especially those of Benazir Bhutto and Nawaz Sharif. Admittedly, both these leaders made mistakes. But no objective observer can ignore the constraints and inhibitions under which they had to function. Their tenures were cut short by highly questionable interventions that denied them their right to full terms in office and the opportunity of executing whatever plans they may have formulated.

But more than that, it shattered the faith of the people in the efficacy and purpose of the electoral system. Irrespective of the performance or conduct of any government, it is a cardinal principle of a democratic polity, that it is the people alone who have the right to decide as to what fate should await any government — whether it is re-election or rejection at the polls. No individual or group, irrespective of its claim to patriotism, can usurp this right.

Some European diplomats here have remarked, in a light vein of course, that if inefficiency or corruption were to become the basis for ousting elected governments, they would be having military interventions even in Europe, for so many of the politicians there have been accused of these crimes. The best known case may be that of the previous Italian prime minister, Silvio Berlusconi, against whom nearly a dozen criminal cases were on the books. To the relief of most Italians and many in Europe, Berlusconi was thrown out of office by the electorate and not by extra-constitutional means.

If the present leadership was genuinely interested in the consolidation of democratic institutions, it would have welcomed the charter and invited its signatories, as well as other prominent politicians, to take up a comprehensive dialogue on the matter. In fact, it was an excellent opportunity for national reconciliation in order to resolve the many contradictions that have cropped up in the body politic of the country. For example, why should the rulers be opposed to the charter’s proposal that the National Security Council or a similar body be headed by the prime minister and not by the president, especially when it is the former who is elected directly by the people and is the chief executive in a parliamentary system?

Again, the proposal to bring the military intelligence agencies under civilian control should have been welcomed, for no genuinely professional service chief would want his intelligence agency to involve itself in the internal affairs of the country. And what is wrong with parliament discussing, debating and then approving the defence allocation in the budget? It is only fair that the people should know how one-third of the state’s budget is being spent. Such a debate, which is normal in all democratic countries, would improve civilian-military relationship and enhance people’s trust and confidence in our armed forces. In fact, national consensus would strengthen the case of the armed forces, but gimmicks such as passing on the pension of the service personnel to the civilian sector do not carry conviction.

Most Pakistanis have genuine respect for the armed forces, which they want to be highly efficient, well-trained and professional. They also support the provision to them of the very best weapons systems that the country can afford and which they legitimately need. It is only in recent years that questions have been raised, with increasing urgency, about their growing involvement in civilian affairs and their refusal to countenance the return of elected, representative rule. These apprehensions are creating major misgivings that can have an extremely debilitating impact on national cohesion and unity.

In fact, the role of the armed forces in the political affairs of the country is considered by many Pakistanis as well as credible foreign observers as constituting a most serious threat to Pakistan’s unity and security. Lest we forget, Pakistan is a multi-ethnic, multi-linguistic state, where one single group, by virtue of its overwhelming majority, dominates the country’s civil and military bureaucracy. In such a situation, the absence of democracy inevitability creates fear and resentment in the smaller provinces that feel deprived of their rightful share in the affairs of the state.

The lesson of East Pakistan is before us. National cohesion and unity cannot be force-fed to the people. Patriotism cannot be instilled by propaganda or regimentation. It comes naturally only when all the people, irrespective of their religious, ethnic or linguistic orientation, are convinced that they have a genuine stake in the country’s well-being and security.

Growing power of the underworld

By Kuldip Nayar

RASHTRAPATI Bhavan is not a court of appeal. But over the years, it has become a forum where concerned citizens have sought the attention of the highest in the land to the problems which the government has failed to notice, much less tackle.

The president has no authority to redress wrongs. He has to work through a government. Yet, he has often forwarded to it the complaints he has gathered from those who have narrated their tale of woes or that of their friends and associates. He is all ears when listening.

This belief led some eight concerned citizens to meet President Abdul Kalam a few days ago. The specific instance in their mind was that of the underworld’s attack on film director Mahesh Bhatt. But they had gone to show their concern over a principle — that of living securely in the face of the increasing power of the don, the mafia and the underworld to which people are perpetually exposed. They told the president how criminals, communalists and casteists were throttling India’s democratic, secular polity from breathing freely.

They made three points. One was how creeping fascism was devouring the country bit by bit and how anti-social elements pounced upon individuals or groups daring to differ with them. Two, respect for the rule of law was lessening day by day. The authorities did not act either because of political pressure or because of fear of their masters. The third point was that society had become so insensitive that it had ceased to realise what was wrong. For many, the dividing line between right and wrong, moral or immoral had ceased to exist.

The president listened to the concerned citizens but said little in response. Even when one of them said that the president, as the guardian of the constitution, should have dismissed Narendra Modi for the pogrom in Gujarat, he kept quiet. Here and there the president sought further information but did not react in any manner to indicate his inclination. It was apparent that he had gone over the same exercise with some other concerned citizens many a time before. “What are your suggestions?” the president asked. “Give me five points.”

One at the meeting tried to propose something. But the President cut him short, saying, “I want all of you to put your heads together and e-mail your five suggestions to me directly.” He promised to consider them.

The concerned citizens have yet to meet and draft the five points. Their problem is that they live in different cities and have a busy schedule. Yet they want to place the five suggestions before the president as soon as possible because the ball is in their court.

If I alone were to send five suggestions, I would convey to the president something like this — keeping the following in mind. There is no doubt that independent India has earned prosperity, power and landmark achievements, especially in the field of science and technology. It is no longer an underdeveloped country. However, we still wallow in poverty, hunger, violence, discrimination, casteism, communalism and unemployment, the problems which have plagued us for decades. This has been compounded by the problem of inequities and inequalities.

— Only 27.8 per cent of the Indian population resides in cities, but three-fourths of the unemployed are in rural areas. If the growth rate of our economy is a commendable 10 per cent, then why is 26 per cent of our population still below the poverty line? The real challenge before us is to overcome the imbalance in distribution of our resources and output.

— A strong judiciary is a key ingredient in the development of the social sectors. A judge does not merely interpret the law but he moulds it to suit the changing social and economic scenario to make the ideals enshrined in the constitution meaningful. The system is rightly derided when it is said that there is too much law and too little justice.

It is pointless to talk of an effective rights regime if the people lack the basic ability to access the justice dispensation system, both in terms of awareness and resources. As an English judge cynically remarked, “The law, like the Ritz Hotel, is open to rich and poor like.” But can the poor have a realistic access to it?

— The greatest challenge before the Indian judiciary is the tremendous docket explosion. The courts are flooded with cases and this has, consequently, led to immense pendency. On an average every year, the supreme court decides about 40,500 out of 42,000 cases filed, the high courts decide 11,23,500 out of 12,41,00 cases and the subordinate courts decide 1,32,22,000 out of 1,42,29,000 cases filed.

In spite of such a high number of disposal, the pendency figures have been rising due to the increasing influx of cases. The law commission in its 120th report (1987) had stated that in India there are only 10.5 judges per million population (which is now said to have gone up to 12-13) whereas countries such as the US and the UK have between 100-150 judges per million population. This is the primary cause for the staggering number of arrears burdening the courts.

— Disconcerting is the burgeoning violence. It cannot possibly lead today to a solution of any major problem because violence has become much too terrible and destructive. If the society we aim at cannot be brought about by big-scale violence, will small-scale violence help? Surely, it cannot. Partly because that itself may lead to a big-scale violence and partly because it produces an atmosphere or social theory that enables the individual to rise above his petty self and think in terms of the good of all.

In a sense, every country, whether it is capitalist, socialist or communist, accepts the ideal of a welfare state. Capitalism, in a few countries at least, has achieved this common welfare to a very large extent, though it is far from having solved its own problems and there is a basic lack of something vital. Democracy, allied to capitalism, has undoubtedly toned down many of its evils and, in fact, is different now from what it was.

— Ultimately, the constitution is the most important for us because it regulates the governance. Dr Rajendra Prasad, president of the constituent assembly, said after the constitution was passed: India needs today nothing more than a set of honest men who will have the interest of the country before them. We have communal differences, caste differences, language differences, provincial differences and so forth.

It requires men of strong character, men of vision, men who will not sacrifice the interest of the country at large for the sake of smaller groups and areas and who will rise over the prejudices which are born of these differences. We can only hope that the country will throw up such men in abundance.

The writer is a leading columnist based in New Delhi.

A victory for law

AFTER September 11, 2001, the Bush administration chose to set aside the standing legal procedures and treaties for fighting this country’s enemies and make up rules of its own — at the expense of violating human rights, tarnishing US prestige around the world, and undermining the checks and balances of American democracy.

On Thursday, at last, the Supreme Court responded. In a decision with vast implications, it invalidated a major part of the administration’s ad hoc system, its special trials for terrorist suspects, and rejected its exclusion of many detainees from international protections against inhumane treatment. The 5 to 3 decision in Hamdan v. Rumsfeld will be controversial; indeed, legal scholars will debate its many components for years to come.

In practical terms, however, it is a huge victory for fundamental American values — and one that will dramatically aid in putting the war against terrorism on a sound legal basis. The central part of the ruling declares that the special military commissions set up on President Bush’s order to try alleged members of al-Qaeda are unlawful. It gives the administration a simple choice. It can proceed with cases under current law, using standard military courts-martial, which provide fuller procedural protections for the accused than do the commissions. Or it can go to Congress for specific authorisation to deviate from those rules.

The holding should ensure that trials of al-Qaeda detainees take place under clear rules ratified by Congress. If Congress does its job conscientiously, any departures from normal trial rules should be both demonstrably necessary and narrow.

As we have argued before, the administration has legitimate concerns about what rules of evidence should apply in these cases and how to protect sensitive intelligence information.

Some accommodations may be necessary. Now, however, balancing these concerns against the accused’s rights to a fair trial will not be the sole province of the administration itself but a shared responsibility of the executive and legislative branches. The results will bear the mark of democratic legitimacy: They will be law.

While trials were the principal subject of the case, the more important holding may be one the court offered in passing: that Common Article 3 of the Geneva Conventions covers all detentions in this conflict.

The administration’s long-standing contention that al-Qaeda detainees are almost wholly outside of the protection of international law is, the Supreme Court says, simply wrong. The Geneva article — which requires a minimal level of humane treatment and bans “outrages upon personal dignity, in particular, humiliating and degrading treatment” — covers all detainees. This holding casts into serious legal doubt the CIA’s authority to run its network of secret prisons, not to mention the highly abusive interrogation tactics it has deployed at these “black” sites. It means that there are no detentions beyond the reach of law and that those guilty of inhumane acts could be criminally liable.

—The Washington Post